31/07/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Revision Petition is directed against order no.4 dated 24/09/14 passed by Learned District Forum, Kolkata, Unit-II in case no.CC 354 of 2014.

            The Learned Counsel for the Revision Petitioner has submitted that the Complainant went to Dr. Susanta Roy and paid fees at his chamber situated at Salt Lake which is outside the territorial jurisdiction of District Forum, Kolkata, Unit-II.  It is submitted that notice was given by the Complainant to Dr. Susanta Roy and not to the Dental Clinic and no relief was claimed against OP No.1 Dental Clinic.  It is contended that the consideration amount was paid by the Complainant at the chamber of Dr. Susanta Roy at Salt Lake and not at Dental Clinic.  Under such circumstances, it is submitted by the Learned Counsel for the Revision Petitioner that the Revision Petitioner/OP No.1 of the complaint is not a necessary party and his name should be expunged.  It is submitted that the Learned District Forum did not consider the petition. 

            The Learned Counsel for the Respondent No.1/Complainant has submitted that the Complainant went to City Dental Hospital first where on 20/11/13 and 25/11/13 the Complainant paid the fees and treatment was done by Dr. Susanta Roy.  It is submitted that the doctor told him that further treatment will be made in his private chamber.  It is contended that the treatment in his private chamber was unsuccessful.

            The Learned Counsel for the Respondent No.2 has submitted that the Complainant came with severe pain and paid Rs.200/- on 26/11/13 at Salt Lake.  It is submitted that the cause of action arose on 26/11/13 at Salt Lake and, as such, the matter in dispute is beyond the territorial jurisdiction of District Forum, Kolkata, Unit-II.  It is submitted that in order to attract the jurisdiction of the District Forum, Kolkata, Unit-II the City Dental Hospital has been impleaded in this case. 

            We have heard the submission made by both sides.  It appears from the impugned order dated 24/09/14 that the OP prayed for inspection of original documents and such prayer was allowed.  The Complainant was directed to produce original documents for inspection by the OP and direction was given to the OP to file W.V. by the next date positively, in default to pay the penalty of Rs.1,500/-.  The Learned District Forum fixed 16/10/14 for filing W.V. “as dead last chance”. The Learned District Forum also recorded that OP No.1 filed a petition praying for expunging his name and the date was fixed for filing objection, if any, by the Complainant. 

            It is the contention of the Revision Petitioner that when a petition was filed by the OP challenging the want of territorial jurisdiction of the Learned District Forum the direction for payment of penalty upon the W.V. in case of non-filing of W.V. was unjustified. 

            It is the settled principle of law that when the jurisdiction has been challenged it should be decided first.  The Learned District Forum ought to have disposed of the petition of the OP No.1 on hearing both sides and the imposition of penalty, under such circumstances, is not sustainable being contrary to the settled position of law.

            The Revision Petition is allowed.  The impugned order imposing the penalty upon the OP is set aside.  The Learned District Forum will hear both sides on the petition filed by the OP No.1 and pass necessary order according to law.  Both parties are directed to appear before the Learned District Forum on 19/08/15.