ORAL ORDER
Per Hon’ble Mr.Justice S.B.Mhase, President
Heard Ms.Sheetal Sampat-Advocate for the revisionist.
This is a revision petition challenging interim order passed on 23/04/2012 in consumer complaint no.45/2012.
We need not enter into the controversy as to what is the complaint in order to consider the points raised in this revision petition. Suffice it to say that the respondent has filed a consumer complaint no.45/2012 against the revision petitioner/ builder/ developer.
On 23/04/2012 District Consumer Disputes Redressal Forum, South Mumbai passed an order to the following effect:-
“Complainant personally present. Opponent called absent. Notice of the complaint application to the opponent was sent by RPAD/ courier. Said notice has been served on opponent and the acknowledgement is on record. In spite of notice being served, opponents are absent and, therefore, matter to proceed ex-parte as against the opponent. Complainant to file affidavit in evidence by next date i.e.24/05/2012.”
Thus, the consumer complaint is pending for an ex-parte hearing before the South Mumbai District Consumer Disputes Redressal Forum and the complainant has been directed to file an affidavit in evidence u/sec.13(2)(b)(ii) of the Consumer Protection Act, 1986. In the present matter, it is accepted by the opponent that the notice was served on it. However, it is a case of the opponent that the documents which were received along with the said notice were misplaced and, therefore, opponent remain absent before the District Consumer Disputes Redressal Forum on 23/04/2012.
The fact which remains is that the opponent has omitted or failed to appear and file written version and, therefore, District Consumer Disputes Redressal Forum has passed an order to proceed ex-parte and directed complainant to lead the evidence by way of affidavit. This order is an interlocutory order. The party may choose not to file written version. Party may participate in the proceeding without filing written version by following rule of non traverse, namely, opponent party may not accept the facts as stated in the complaint but may argue the case to the effect that on the basis of the facts which are stated in the complaint, complainant is not entitled for the reliefs claimed and such type of participation namely, accepting the complaint as it is and to submit that the complainant is not entitled for the reliefs as permissible under the law. Such participation is still open to the present revisionist also. The impugned order, thus, incur no illegality.
Apart from that the reason which has been stated for the purpose of setting aside this order, namely, copy of the complaint which was received was misplaced is such omnibus and omnipotent reason that it can be placed on record in any ex-parte matter. We have come across the cases of several builders and developers and some times in corporate sectors that on first day in spite of service they remain absent, allow the complaint to proceed ex-parte and, thereafter file an appeal or revision to get that order set aside on some flimsy reasons by harassing the complainant in circuitous litigation. These are the delaying tactics adopted by several opponents which we have come across in Consumer Fora. We want to deprecate such practice. Opponents when served whether he is individual and/or corporate body shall be vigilant enough to appear before the Consumer Fora and they shall not ignore the directions to appear. At the most within permissible limit under section 13 & 14 of Consumer Protection Act, 1986, time to file written version can be granted but the tendency of the opponents to remain absent and, thereafter, to invite remand or rolling back of the matter is required to be deprecated. From this angle too we also find that there is no case for the present revision petitioner.
There is one more aspect which needs consideration. This is an interlocutory order and the revisionist can participate in the proceeding as demonstrated in earlier part of the order. We have decided in the matter of Amir Ali Tharani V/s.Rajesh Sukhtankar & another reported in II (2011) CPJ 23 that the revision petition as against interlocutory order are not tenable and, thus, we find that present revision petition is not equally tenable. It is hereby rejected. No order as to costs.
Pronounced in the open court.
Copies of the order be furnished to the parties.
Pronounced on 18th June, 2012.
