Dtd.13.08.2024                                            A/79/2024

O R D E R

          BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.

1.    This is an appeal filed U/s.41 of CPA 1986 by Complainant/Appellant aggrieved by the order dtd.21.11.2023 passed in CC/155/2021 on the file of Belagavi District Commission. (Parties to the appeal henceforth are referred to their rank assigned to them by the District Commission).
2. The Commission examined grounds of appeal, impugned order, appeal papers and heard. Now the point that arise for consideration of this Commission would be;

Whether the impugned order dtd.21.11.2023 passed in CC/155/2021 does call for an interference of this Commission for the grounds set out in the appeal memo ?

3. Appellant is  personally present before the Commission, submits that OP, under construction agreement/Ex-P1 is bound by the terms and conditions and has failed to give service of construction works, which was not considered by the District Commission. Further submits, excess payments were being made to OP, were not taken into consideration by the District Commission, however, given direction to Complainant to approach Civil court and this was done only after holding enquiry would certainly put the complaint to hardship has some considerable force.  Let us examine the complaint and the reliefs sought against OP.  The parties to the complaint have entered into construction agreement dtd.18.07.2019 to construct building in RS.24/2 measuring 1200 sft situated at Mahalaxmipuram, Shindoli taluk, Belagavi district. In other words, Complainant vide complaint averments and construction agreement has made out a prima facie  case that he is a consumer while OP is a service provider, within the meaning of Sec.2(7) and 2(42) of CPA 2019.  The relief sought by the Complainant in his complaint against OP is to direct OP to refund an amount of Rs.4,07,488/- as he has received excess amount and sought for compensation of Rs.2 lakhs,   was not at all considered by the District Commission on the ground that “Commission has no jurisdiction to grant any relief as the dispute is one between the parties is based upon construction agreement dtd.18.07.2019 and matter requires detail enquiry and voluminous evidence requiring cross examination of the Complainant as well as OP and also matter has to be dealt by the Civil court as there are two reports relied by the Complainant and OP in respect of construction work entrusted by the Complainant over the site and both sides have not examined the Government Evaluator/Civil Engineer report relied on by both sides. Hence, the dispute is in respect of construction work has to be decided by the civil court” which in our view is not only contrary to the materials placed on record but also law. As already stated the Commission has already taken pain and held an enquiry by receiving affidavit evidence, documents, interrogatories including two reports relied on by the Complainant and OP in respect of construction works entrusted by the Complainant to OP. If for any reason, the District Commission is of the view, report of Government evaluator/Civil engineer is very much required to decide the dispute in right perception is empowered to direct either of the parties to the complaint to avail service of Government evaluator/Civil engineer in exercising the powers and procedures to be followed U/o 26 Rule 9 & 10 R/w Sec.151 of CPC. In such view of the matter, considering the dispute raised by the Complainant, since parties to the complaint have already placed sufficient materials on record, directing them to approach civil court to redress the remedies based on Ex-P1/construction agreement dtd.18.07.2019 has to be held improper.  In other words, unsustainable under law is liable to be set aside.  Hence proceed to allow the appeal. Consequently set aside the order dtd.21.11.2023 passed in CC/155/2021 on the file of Belagavi District Commission and directed District Commission to readmit the complaint and direct parties to the complaint to file an application to appoint Government evaluator/Civil engineer as Commissioner to examine Ex-P1 and construction status on the site in question and allow parties to file their memo of instructions to enable Commissioner to submit report and after obtaining report to decide the complaint case in accordance with law as early as possible not later than three months from the date of receipt of this order.
4. Notify copy of this Order to the District Commission and parties.

   Lady Member                                Judicial Member               

*NS*