Per Shri A.Z.Khwaja, Hon’ble Presiding Member.
1) Petitioner Amravati Housing and Area Development Board Amravati has preferred the present Revision Petition feeling aggrieved by the order dated 11/08/2021 and another order Dt.17/08/2021 passed by the learned District Consumer Commission Amravati in Consumer Complaint No.19/163 where by the application filed by the petitioner/O.P. for permission to lead evidence came to be rejected.
2) Short facts leading to the filing of present revision petition may be narrated as under :-
3) Respondent/complainant preferred the Complaint before the learned District Consumer Commission Amravati u/s 12 of the Consumer Protection Act 1986 for seeking relief to issue direction to O.P. for ‘No Due Certificate’ and for depositing Stamp Duty Certificate as well as Completion Certificate and also for compensative cost.
4) Notice to the complaint was served on O.P. on 01/08/2019 and O.P. appeared on 13/09/2019 through advocate and sought time for filing written statement, but the application for grant of time to file written statement came to be rejected by the learned District Consumer Commission on 20/11/2019. O.P. then challenged the impugned order Dt.20/11/2019 before the State Consumer Commission vide RBT/RP/20/2 which came to be rejected by order Dt.29/07/2021. Petitioner has contended that thereafter on 05/10/2019 complainant filed his evidence affidavit on record, but from 23/03/2020 lock down was declared due to Corona Virus and continued till November 2020. Regular functioning was resumed in December 2020. Again there was second wave of Corona Virus and again lock down was declared from 09/04/2021 till July 2021. Petitioner has contended that on 11/08/2021 he informed the Commission by filing pursis and also sought time to approach the Hon’ble National Consumer Commission, but the pursis came to be rejected on Dt.11/08/2021. Petitioner has further contended that that thereafter he submitted one application on 17/08/2021 for grant of permission to lead evidence, but the same came to be rejected by the learned District Consumer Commission with costs of Rs.2,000/-. Petitioner/ O.P. was neither allowed to file written statement on record nor was allowed to file evidence affidavit as per order 17/08/2021. Aggrieved by the said orders Dt.11/08/2021 and 17/08/2021 passed by the learned District Consumer Commission Amravati petitioner has come up in revision.
5) After filing of the revision petition, notices came to be issued to respondents. I have heard Shri S.N.Kadu, learned advocate for the petitioner and Shri Agnihotri, learned advocate for respondent. At the out set Shri S.N.Kadu, learned advocate has frankly submitted that petitioner is mainly challenging the order Dt.17/08/2021 passed by the learned District Consumer Commission Amravati by which the application for permission to lead evidence came to be rejected. In this regard Shri S.N.Kadu, learned advocate has made several submissions. At the out set Shri S.N.Kadu, learned advocate has submitted that the petitioner was not allowed to file the written statement on record to put up its own case and no written statement order came to be passed against him. Petitioner thereafter on 17/08/2021 filed an application for permission to lead evidence, but the same also came to be rejected by the learned District Consumer Commission Amravati. Shri S.N.Kadu, learned advocate has submitted that while passing the impugned order on application Dt.17/08/2021, the learned District Consumer Commission Amravati has not taken in to consideration and also lost sight of the fact that there was out break of Covid-19 Pandemic from 23/03/2020 till November 2020 and thereafter from 24/02/2021 till July 2021. According to Shri S.N.Kadu, learned advocate grave miscarriage of justice has been committed by not granting permission to the petitioner to lead evidence by way of affidavit and so the order Dt.17/08/2021 is not sustainable in law. In order to support his contention Shri S.N.Kadu, learned advocate has drawn my attention to the copies of various order sheets of the proceedings of consumer complaint No.162/19. Shri Agnihotri, learned advocate has appeared for respondent and has strongly opposed these contentions. Shri Agnihotri, learned advocate has submitted that the present petitioner had adopted delaying tactics by not placing written statement on record and prolonging the matter on one ground or the other. Shri Agnihotri, learned advocate has pointed out that the present petitioner was given opportunity to file written statement within stipulated time, but no written statement was filed on record and so no written statement order has came to be passed by the learned District Consumer Commission Amravati on 13/09/2019. Against that order the petitioner has filed Revision Petition No.20/2 before the State Consumer Commission Nagpur and the same came be rejected. However the petitioner again sought time by way of Pursis to approach the Hon’ble National Commission but the pursis came to be rejected. Shri Agnihotri, learned advocate for respondent has pointed out that despite the fact that specific order was passed by the learned District Consumer Commission Amravati to proceed without written statement one futile attempt was made by the petitioner to lead evidence by filing an application for permission to lead evidence. Copy of this application is also placed on record. Shri Agnihotri, learned advocate for respondent has drawn my attention to the elaborate order passed by the learned District Consumer Commission Amravati on the application filed by the petitioner on 17/08/2021. Petitioner himself has placed on record copy of the order passed by the learned District Consumer Commission Amravati on 17/08/2021. Bare perusal of this order Dt.17/08/2021 shows that no written statement order came to be passed against the present petitioner on 20/09/2019 and thereafter the matter was fixed for hearing of the complainant and also for final arguments. It is submitted by Shri S.N.Kadu, learned advocate for the petitioner that the learned District Consumer Commission Amravati had not passed any order regarding closing of evidence by the parties and so it was open to the petitioner to lead evidence by way of affidavit. I am unable to agree with this contention as once specific order is passed to proceed without written statement against the O.P., the question of O.P. to tender evidence in rebuttal does not arise. It is well settled that no evidence can be led in absence of written statement and O.P can advance arguments only. If we go through the elaborate order passed by the learned District Consumer Commission Amravati, the learned District Consumer Commission Amravati has also made reference to this position of law. Further the learned District Consumer Commission Amravati has also made reference to the fact that thereafter the matter was fixed for final hearing on several dates, mainly 24/02/2020, 28/02/2020, 04/03/2020, 13/03/2020, 20/03/2020, 04/12/2020, 19/01/2021, 20/01/2021, 16/02/2021, 09/03/2021, 23/03/2021, 05/04/2021, 19/04/2021, 06/07/2021, 29/07/2021, 28/2021 and 11/08/2021. Bare perusal of the elaborate order passed by the learned District Consumer Commission Amravati Dt.17/08/2021 shows that elaborate reasons were given by the learned District Consumer Commission Amravati while rejecting the application for permission to lead evidence. Learned District Consumer Commission Amravati had also observed that petitioner/O.P. had no right to lead evidence by way of affidavit after no written statement order had come to be passed. Further the learned District Consumer Commission Amravati also observed that the petitioner had sought adjournment from time to time for submitting final arguments though the Consumer Complaint under the Consumer Protection Act 1986 was to be tried in a summary manner. Shri S.N.Kadu, learned advocate for the petitioner was unable to point out as to how the petitioner can be permitted to lead evidence after the complaint was ordered to be proceeded without written statement. On the other hand, the contents of the order Dt.17/08/2021 itself shows that the petitioner had sought several adjournments from time to time and costs were imposed. Lastly it is submitted by Shri S.N.Kadu, learned advocate for the petitioner that the learned District Consumer Commission Amravati proceeded with the complaint despite the fact that there was lock down imposed in view of Covid-19 Pandemic. No doubt the imposition of lock down during the first wave and the second wave of Covid-19 Pandemic can not be disputed. But it is very much clear from the various order sheets of learned District Consumer Commission Amravati placed on record that proceedings of the learned District Consumer Commission Amravati were taking place and functioning was not closed completely, taking in to consideration the plight of Consumers under the Consumer Protection Act 1986. In such a situation when the proceedings of learned District Consumer Commission Amravati were going on at Amravati, it was not open to petitioner to take such plea instead of taking part in the proceedings and tendering final arguments. In any case I find that the learned District Consumer Commission Amravati has passed reasoned and elaborate order on the application of the petitioner for permission to lead evidence and I do not see any error or infirmity in the same. As such I am unable to accept the contention of Shri S.N.Kadu, learned advocate for the petitioner and so I pass the following order.
//ORDER//
- Revision petitioner is hereby dismissed.
- No order as to costs.
- Copy of order be supplied to both parties free of cost.
