Date of Filing – 22.03.2017

Date of Hearing – 13.04.2018

            The instant Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of Opposite Party No.3 to impeach the Order No.17 dated 09.03.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (in short, Ld. District Forum) in Consumer Complaint No. 405/2016 whereby the application filed by the Opposite Party No.3/Revisionist for amendment of written version was rejected.

          The Opposite Party No.1 herein being Complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum on the allegation of deficiency in services on the part of OP Nos.1 to 3 being legal heirs of original owner Hara Prasad Dasgupta, since deceased for execution and registration and delivery of possession in respect of one self-contained flat measuring about 650 sq. ft. on the ground floor at Premises No.614A, Bolck-E, Baghajatin Colony, P.S.- Jadavpur, Kolkata – 700086, Dist-South 24 Parganas within the local limits of Ward No.101 of Kolkata Municipal Corporation.

          After entered appearance, the OP No.3 by filing written version disputed the claim and the matter is pending for filing evidence on affidavit by OP No.3.  At that stage, an application has been filed on behalf of OP No.3 in order to amend the written version on the plea that OP Nos.2 & 4 i.e. the wife and daughter of deceased Hara Prasad Dasgupta by way of Deed of Gift dated 25.11.2011 bequeathed the property in favour of him.  By the impugned order, the Ld. District Forum rejected the said application, which prompted OP No.3 to come up in this Commission with the instant revision petition.

          Ld. Advocate for the Revisionist has submitted that the Court may at any stage of the proceeding allow either party to amend or alter his pleadings in such manner and on such terms as may be just and the amendment should have been allowed for determining the real controversy between the parties.  In support of his contention, Ld. Advocate for the revisionist has placed reliance to two decisions of Hon’ble Supreme Court reported in – (1) AIR 1983 SC 43 [Harcharan –Vs.- State of Haryana] and (2) AIR 2000 SC 614 [B.K.N. Pillai – Vs. – P. Pillai & Anr.].

          None appears for the OP No.1/Complainant when the record was called on for hearing.

          Upon hearing, the Ld. Advocate for the Revisionist and on perusal of the materials on record, it would reveal that the OP No.1/complainant being an intending purchaser has lodged the complaint against the developer (OP No.1) and the landowners (OP Nos.2 & 3) in a dispute of housing construction.  In fact, the complainant had entered into an agreement to purchase the subject flat at a total consideration of Rs.4,50,000/- and she has paid the entire consideration amount.

          Now, the Revisionist/OP No.3 had taken a plea that the developer has received a sum of Rs.2,00,000/- from one Smt. Shukla Roy and Rs.2,00,000/- from the revisionist and thereby relinquish their right by executing an undertaking on 11.08.2011.

          Therefore, it is quite apparent that the OP No.3 may have genuine grievances against the OP No.1/Developer but for which he cannot stand in the way in exercising the right by an intending purchaser/consumer under the provisions of the Act.  Whatever dispute be there between the landowners and the developer, the same can be settled in an independent proceeding.  As per agreement, the landowners had given consent to the developer to transfer the property falling to its share.  The decisions referred by the Ld. Advocate for the Revisionist prior to amendment of Civil Procedure Code, 1999 which came into force on and from 01.07.2002 which makes it abundantly clear unless any subsequent incident had taken place, after beginning of hearing no amendment application will be entertained and as such the referred decisions have no application in the facts and circumstances of the case.

          In a celebrated decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati – Vs. – Uppal Agencies Pvt. Ltd. & Anr.] the Hon’ble Supreme Court in Paragrah-23 has observed thus – “ We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages.  On the other hand, where the builder commits breach of his obligations, the owner has two options.  He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider”. 

       In another decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. – Vs. – K. Rajiv] the Hon’ble National Commission has observed – “an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch”. 

      The avowed object behind the legislation of the Act is to protect the interest of a consumer.  Admittedly, Hara Prasad Dasgupta, since deceased i.e. the predecessor-in-interest of OP Nos. 2 to 4 was the owner of the property and on his death, the property devoid upon OP Nos. 2 to 4.  Now, whether the property owned by OP No.3 alone or OP Nos. 2 to 4 jointly is an irrelevant consideration because if the case is succeeded, the persons who are responsible for the agreement must execute the Sale Deed in favour of the complainant.

       Considering the above, I do not find any material irregularity which seeks interference of this Commission by invoking its revisional jurisdiction.  Therefore, the instant revision petition being harassing one which has taken away valuable time of about one year and further succeeded the OP No.3 to stall the proceeding for more than one year, deserves dismissal with cost of Rs.20,000/- out of which Rs.10,000/- to be paid to OP No.1/Complainant and the balance amount of Rs.10,000/- to be paid in the Consumer Legal Aid Account of this Commission.

      Consequently, the Revision Petition is dismissed on contest with cost of Rs.20,000/- out of which Rs.10,000/- to be paid to OP No.1/Complainant and the balance amount of Rs.10,000/- to be paid in the Consumer Legal Aid Account of this Commission within 15 days from date positively.

       To 04.06.2018 for appearance of the revisionist/OP No.3 before the Ld. District Forum and showing receipt as to payment of costs and to file evidence on affidavit positively otherwise the OP No.3 shall be debarred from filing evidence on affidavit and the Ld. District Forum will proceed to dispose of the case in accordance with law.

      The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information.