ORDER NO. 5 DT. 15.1.09

HON’BLE MR. JUSTICE A.CHAKRABARTI, PRESIDENT

Mr. Prasad, Ld. Advocate for the Appellants at the outset contended that though at the initial stage the OP failed to participate in the proceeding in the appropriate manner, but they filed the objection.  The same is noticed in order no. 6 dt. 4.8.08 passed by the Forum below recording that the objection filed on that date is kept with the record, copy of which is served upon the complainant.  The matter was fixed for delivery of judgement on 11.8.08 and the impugned judgement was passed on 11.8.08 where it was recorded that the OPs 1 to 3 did not file any objection.  The contention of the Appellant is that the matter has been decided finally by the impugned order granting relief to the complainant though the complaint itself was not supported by any affidavit and the complainant did not adduce any evidence whatsoever.  In the circumstances, the complaint of the Appellant is that the matter has been decided without having any evidence in any stage and the objection filed by the OP Nos. 1 to 3 though were kept with the record and was never rejected, the same was also not considered at the time of deciding the matter finally.

Mr. P.K.Basu, Ld. Advocate for the Respondent, contends that he has a strong case on merit.  But Mr. Basu is unable to show that the matter has been decided considering any evidence whatsoever.   It is admitted that neither the complaint was supported by an affidavit nor there was any evidence even on behalf of the complainant.

In above view of the matter, we are of the opinion that the matter should be decided in accordance with law granting the parties opportunity to file evidence and also taking into consideration the objection already filed and directed by the Forum below to be kept on record.

In the circumstances, the impugned order is set aside.  The Appeal is allowed.  Forum below is directed to proceed with the case following the procedure as discussed above.