Dt. 20.11.2015
JAGANNATH BAG, MEMBER
The present appeal is directed against the Orders, dated 02.12.14 and 05.12.14, passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in CC Case No. 387/2014 , whereby Ld. Forum below dismissed, the complaint on ground of default and also rejected, the petition of the Complainant for review of the Ld. Forum’s order dated 02.12.14 with penalty of Rs. 5,000/-.
The petition of complaint was filed under Complaint Case No.387/14 before the Ld. Forum below praying for direction upon the OPs ( 1-4), inter alia, to deliver peaceful and vacant possession of a flat in terms of an Agreement for Sale. The complaint had been admitted by the Ld. Forum below vide their Order No. 2, dated 09.09.14. OP No.1 , OP No.2 and OP No.4 filed W.Vs. OP No.3 did not file any W.V. The prayer of OP No.5 for filing W.V. was rejected by the Ld. Forum below vide Order No.6. dated. 07.11.14. Vide their order dated 07.11.14 , the Complainants were asked to file evidence on 28.11.14. As revealed from records , the Complainant remained absent on 28.11.14 for which Ld. Forum below directed the Complainants to show cause on 02.12.14 . The Complainants remained absent on 02.12.14 without any step towards filing any show cause reply. In that situation the compliant was dismissed for default. A petition for review of the Ld. Forum’s order dated 02.12.14 was filed by the Complainant stating that they had ‘no knowledge about the date on 05.11.14’. Ld. Forum, however, observed that on 05.11.14 , the Complainants were present . It was also observed by the Ld. Forum below that on 30.10.14, the Complainants were present and were aware about fixing of 05.11.14 for W.V. by OP No. 1. Ld. Forum below observed that though the Complainant has stated that 05.12.14 was fixed for steps, such statement could not be accepted as after 30.10.14, 05.11.14 and not 05.12.14 would be fixed for steps. Ld. Forum below observed that the Complainants took false plea which was not encourageable. Again, the Forum having no jurisdiction to review their own order , the petition for review was rejected with a penalty of Rs. 5,000/- on the ground that the Complainants misled the Forum below.
Being aggrieved by and dissatisfied with the orders of the Ld. Forum below , the Complainants - turned -Appellants have come up before this Commission with a prayer for direction to set aside the impugned orders dated 02.12.14 and 05.12.14.
The memorandum of appeal has been filed together with copies of Order Nos.2 -9 of the Ld. Forum below , the petition of complaint , the W.V. filed by OP Nos. 1, 2 and 4, the Agreement for Sale dated 7th September 2013, and other documents.
Ld. Advocate appearing for the Appellant submitted that there was an Agreement for Sale in respect of a flat, being No. T / 1 (A Type), situated on the 3rd floor, Eastern side of the building together with one car parking space No. G/2 of the building together with the common facilities after making the same ready for use by executing and registering the conveyance deed and by delivering possession thereof within 10 months from the date of agreement i.e., 07.09.13. The Complainant paid Rs. 16,00,000/- in cheque and cash. In spite of expiry of the period as stipulated in the terms of agreement, the Respondents have not delivered possession of the flat . As such, the complaint petition was filed before the Ld. Forum below. The petition was admitted but as the Appellants/ Complainants were absent on 07.11.2014 when Ld. Forum below fixed 28.11.14 for evidence by Complainants, the Complainants could not take step for filing evidence on 28.11.14 and on that very date , Ld. Forum below directed the Complainants to show cause by 02.12.2014, though Ld. Forum below fixed 10.12.14 for questionnaire by O.P. They attended the Forum below on 05.12.14 and learned about dismissal of the case on 02.12.14 . A review application was filed which was rejected . Ld Forum’s order dated 02.12.14 dismissing the complaint on ground of default is arbitrary and biased as the Appellants had all along appeared before the Ld. Forum below up to 30.10.2014 and there was no intentional default and the question of misguiding the Ld. Forum below does not arise. Unless the impugned order is set aside, the Appellants would suffer irreparable loss in so far as a total sum of Rs. 16,00,000/- has been paid to the Respondents for purchase of the flat.
Ld. Advocate appearing for the Respondents submitted that there was reluctance on the part of the Complainants to file evidence to prove that the payment of Rs.16,00,000/- was made to the Respondents . The plea taken by the Appellants that they were not aware of the order dated 07.11.14 for filing evidence is totally false as rightly observed by the Ld. Forum below. On 28.11.14 , the Complainants did not appear and file evidence . They were given an opportunity to show cause on 02.12.2014 which was again not complied with. Accordingly, the complaint was dismissed for default .
Decision with Reasons :
The point for consideration is whether Ld. Forum below was justified in dismissing the complaint on ground of default by the Appellants/Complainants.
It is important to note that Ld. Forum below vide their order dated 07.11.14 fixed three dates at a time as noted below:
28.11.14 for evidence by Complainant,
10.12.14 for questionnaire by OP and
23.12.14 for reply by Complainants.
It reveals from records that the Complainant was absent on 07.11.14 and failed to file evidence on 28.11.2014 . Accordingly, Ld. Forum below fixed 02.12.14 for show cause reply and as the Appellants /Complainants were absent on 02.12.14, the complaint was dismissed for default.
It is true that as the Appellants / Complainants were absent on 28.11.14 they were not aware of fixing of such a short date with only 2 days in between the dates of orders as pointed out by the Appellants . The order dated 02.12.14 is indeed a hasty outcome of judicial discretion as pointed out by the Appellants. The Appellants/ Complainants , in all fairness of facts , should have been given another chance to submit their evidence together with a show cause reply for the interest of justice and more so in view of the fact that the compliant is based on alleged deficiency in service on the part of the Respondents who are said to have received a considerable sum for a flat , such flat not being made over to the Appellants /Complainants in terms of the Agreement of Sale. However, it has been rightly observed by the Ld. Forum below that they do not have the power to review their own order and in that consideration , the petition for review of the order of dismissal of the complaint was rejected.
Order passed by the Hon’ble National Consumer Disputes Redressal Commission in First Appeal No. 186 of 2008 and Orders of this Commission in SC Case No. FA/29/2013 and SC Case No. FA/537/2013 have been cited by the Ld. Advocate for the Appellants / Complainants emphasizing their points of argument .
In view of what has been discussed and upon consideration of the materials on record we are inclined to hold that the Appellants/Complainants should be given a fresh chance to file evidence in support of their complaint for the interest of justice. Hence,
Ordered
That the appeal be and the same is allowed in part in so far as it relates to the order of the Ld. Forum below dated 02. 12. 2014 dismissing the complaint for default . The order as regards rejection of the review petition and payment of penalty shall, however, remain unchanged. The matter is sent back on remand to the Ld. Forum below for fresh adjudication after giving opportunity of filing evidence by the Complainants in support of their complaint, if any . Parties to appear before the Ld. Forum below on 07.12. 2015 for necessary order by the Ld. Forum below. There shall be no separate order as to costs.
