24/04/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Revision Petition is directed against the order no.42 dated 12/03/14 passed by Learned District Forum, Kolkata, Unit-I in case no.CC 4 of 2008. 

            The Learned Counsel for the Revision Petitioner has submitted that the Revision Petitioner/OP of the complaint filed a petition praying for appointment of an Engineer Commissioner as per the order of remand in FA No.355 of 2012.  It is contended that the dispute arose as to who will bear the cost of the Commission work.  It is contended that u/s 13(1)(d) of the C. P. Act, 1986 the Complainant has to deposit the required fees for expert opinion and the necessary costs in this regard should also be borne by the Complainant.  It is submitted that the Learned District Forum should have directed the Complainant to deposit the required fees for the Commission work to be done by an Engineer Commissioner. 

            The Learned Counsel for the Respondent/Complainant has submitted that although it was the allegation of the Complainant that there was defect in construction, the OP of the complaint filed the petition praying for appointment of an Engineer Commissioner and, therefore, the OP is to bear the expenses of the Commission work.  It is submitted that the OP/Revision Petitioner has taken the onus upon him which was lying upon the Complainant. 

            We have heard the submission made by both sides and perused the papers on record.  It appears that the complaint case was earlier disposed of and in Appeal bearing FA No.355 of 2012 the case was sent back on remand to the Learned District Forum to give opportunity to the Complainant to file petition praying for appointment of an Engineer Commissioner for inspection of the disputed site on the points raised.  Now it appears that the OP of the complaint/Revision Petitioner filed the petition for appointment of an Engineer Commissioner, although the onus to prove the allegation of defect in construction was lying upon the Complainant. Having heard both sides and on perusal of the papers on record, we are of the view that the OP of the complaint would pay 40% of the cost of Commission work and 60% will be paid by the Complainant.  The impugned order is not speaking one. 

            The Revision Petition is allowed.  The impugned order is set aside.  The OP of the petition of complaint will pay 40% of the cost of Commission work and 60% thereof would be paid by the Complainant.  Let a copy of this order along with the list of Engineer Commissioner maintained in this Commission be sent to the Learned District Forum, Kolkata, Unit-I.