For Complainants : Adv. Smt. Jayashri Kulkarni
***********************************************************************
Per : Hon’ble President, Smt. Pranali Sawant
//JUDGMENT//
[1] This is the complaint wherein the Complainants has alleged deficiency in service against the Opponent Kundan Nahar Associates for giving the less area of the flat. The facts in brief which give rise to the present complaint are as follows :-
[2] The Complainants had entered into an agreement with the Opponent for the purchase of a flat. After taking the possession of the said flat the Complainants noticed certain defects in it. Hence the Complainants had filed the consumer complaint bearing No. 61/09 before the Forum. The said complaint has been decided and judgement has been passed in favour of the Complainants. Infact the execution petition is pending before Forum between the same parties. It is the contention of the Complainants that they had sought to file amendment application before the Forum during the pendency of the earlier complaint for less area. However the President of the Forum directed the Complainants not to press such application. Hence the Complainants have filed this fresh complaint for less area. At the time of the admission of this complaint Adv. Smt. Kulkarni was heard on behalf of the Complainants . According to the Complainant’s Advocate since the Forum directed the Complainants not to proceed with the amendment application, the same was “not pressed” by the Complainants . If we peruse the rojnama of the respective date, it can be seen that there is no mention that as per the order / direction of the Forum the Complainants have not pressed the application. On bare perusal of the rojnama it can be seen that the Complainants, out of their own free will, have not pressed amendment application. In such a situation, in our opinion, the principle of waiver shall apply. While proceeding with the complaint application in respect of the disputed flat it is mandatory for the Complainants to ask for all the reliefs in the same application. There cannot be multiple proceedings in respect of one flat for different prayers. If the Complainants have chosen not to proceed with certain reliefs in respect of a flat it will act as a waiver and the Complainants will not be entitled to file a fresh complaint for the same. Moreover there is nothing on record to show that the application was not pressed as per the direction of the Forum. In such a situation the Complainants are restrained from filing a fresh complaint with a new prayer about the disputed flat in respect of which the judgment has already been declared.
[3] In view of the above mentioned facts we are of the opinion that the present complaint cannot be admitted and needs to be returned to the Complainants. Accordingly we pass the following order :-
// ORDER//
[i] The complaint be returned to the Complainants .
[ii] No order as to costs.
[iii] Certified copies of this order be supplied to
both the parties free of cost.
