F.A.No.187/2006 against C.D.No.987/2004, District Forum-II, Hyderabad.

Hyderabad.                                                        ….. Appellant/

                                                                                                                 Opp. Party.

                        And

  Sri P. Raja Bhushan Rao, S/o. Late P. Rama Krishna Rao,

Aged about 64 years, Occ: Retired Employee,

R/o. 2-2-1136/2/3, New Nallakunta, Hyderabad.

  Smt. P. Bharathi, W/o. Raja Bhushan Rao,

Aged about 60 years, Occ: Housewofe,

R/o. 2-2-1136/2/3, New Nallakunta, Hyderabad.                           ….. Respondents/

                                                                                                             Complainants.

                                  :           Mr. S. Rajesh Jaishwal

                             :           Mr. C. Appaiah Sarma R1 & R2.

            CORUM:         SRI K. SATYANAND, HON’BLE MEMBER

                                                                        AND

                                    SRI R. LAKSHMINARASIMHA RAOM MEMBER

                                    TUESDAY, THE SECOND DAY OF JUNE

TWO THOUSAND NINE

        Oral Order  : ( per Sri K. Satyanand, Hon’ble Member )

*****

        This is an appeal filed by the opposite party against whom the District Forum-II, Hyderabad in C.D.No.987/2004 passed an order more or less as prayed for by the complainant.

        The facts of the case are briefly as follows:

        The appellant floated a scheme of sale of holiday resort on the basis of time share of the resort.  The complainant appeared to have paid an amount of Rs.96,000/- in two installments and bought the time share in the holiday resorts of the apposite party.  The opposite party undertook to complete the resorts within the time and also to issue membership certificate to the complainants but it failed to keep up its promise. Several requests proved in vain.  As such the complainants approached the Forum.

        The opposite party remained exparte.

        In proof of his case, the complainant filed his own affidavit as also documents marked as Exs.A1 to A6.

        The District Forum upheld the contention of the complainant and accordingly passed an order in favour of the complainant.

        Aggrieved by the said order of the District Forum, though the opposite party remained exparte before the District Forum, it filed the present appeal on the grounds inter alia that the District Forum failed to see that no notice in the main order was ever served on the appellant depriving the appellant of an opportunity to represent its case.  It is therefore urged that the order of the District Forum was liable to be set aside on that ground alone.  The District Forum failed to see that the claim of the respondents was barred by limitation as the agreement was executed on 7-1-2001 while the complaint was filed on 9-7-2004.  It is further submitted by the appellant as per clause 7 of the agreement in the event of the apartment not being available at the time share purchased by the purchaser, the owner shall arrange another similar type apartment and that the appellant was owning other resorts and alternatively they made available similar type of apartment at Amrutha Castle, Saifabad, Hyderabad with all modern facilities.  The appellant also claimed to have issued card to the respondent.  Thus, it was stressed that the opposite party did not commit any default and therefore the order passed by the District Forum was untenable and consequently the P.P. filed by the respondents was liable to be set at naught.

        This appeal was filed with a delay excuse petition to condone the delay of 216 days on the ground that the opposite party had come to know about the order only then P.P. notice was served and not before that.  It appears that the delay was condoned and the appeal came to be numbered.

        Subsequently on 2-2-2009, the appellant filed a petition to receive nine documents, all Xerox copies, as additional evidence.

        In as much as the appellant drew our attention to three important aspects, it is necessary to consider in the first instance those three aspects.  It is firstly contended by the appellants that no notice was ever served by the District Forum on the opposite party and therefore the whole proceedings have to be set aside as a judicial order without notice to the affected party would be a nullity.  In view of this submission, we closely examined the docket notes of the District Forum. From the docket notes, the following facts are clear.

The complainant appeals to have been filed on 9-7-2004, initially it was returned and after compliance with the office objections, it was represented on 27-7-2004. The forum ordered notice on 30-7-2004 and the notice was marked to be returnable by 9-9-2004.  On 9-9-2004 the District Forum did not make any observation as to the status of the service of notice on the opposite party.  It merely observed:  ‘Opposite party called absent. No representation. For affidavit of complainant, call on 7-10-2004’.

        We did not find in the District Forum record any material showing the return of the process including acknowledgement, if any.  This, therefore, leads to an inescapable conclusion that the recording of the opposite party having been called absent and consequently moving on to the next step is not supported by a finding as to the satisfaction of the District Forum that the opposite party was duly served.  This is definitely an infirmity which calls for folding back the process to that point where the initial issue of notice to the opposite party had to be retraced.  In other words, it will have the telling fact on the order of the District Forum requiring this appellate Commission to set aside the order and ask the District Forum to render the procedure properly from the point where it had taken cognizance of the complaint.

        The other infirmity pointed out by the appellant is that the very complaint was barred by limitation, that raised a mixed question of fact and law.  Of course it has to be sorted out by the District Forum itself as, though the date of agreement and the date of complaint show up a prima facie interference that the filing of the complaint was beyond two years but it all depends upon the proper identification of the point of commencement of cause of action which is required to be consigned to the realm of facts.

        The third aspect is not an infirmity by itself.  It pertains to the initiative of the appellant to rely upon some documentary evidence.  If this were to be a normal appeal, this Commission could decide for itself not only the question of admissibility of the additional evidence at this stage but also the evaluation of the probable value of those nine documents.  But the first infirmity is apt to stop us from deciding the appeal which this Commission could have decided in the normal course.  In other words when the very question of notice was in controversy, it has to be steered clear at the level of District Forum itself.  When once it goes to the District Forum, it naturally throws open the whole controversy and adjudication where by a natural right accrues to the appellant to file pleadings on its behalf and also file documents as it did here in this Commission by moving a petition for additional evidence.  In these circumstances, we feel that the correct course in the interest of justice is to set aside the order of the District Forum and remand the matter to the District Forum to adjudicate the complaint afresh after giving opportunity to both sides.  However, obviating the necessity to issue fresh notice to appearance to the opposite party, both parties are directed to appear before the District Forum on 30 June, 2009 and the District Forum shall proceed with the matter to adjudicate it afresh.

        The appeal is disposed of accordingly but without costs in the circumstances of the case.

                                                                    MEMBER

                                                                        (KS)

                                                                    MEMBER

                                                                      (RLNR)

                                                                    Dated 02-6-2009.