HON'BLE MR. KAMAL DE PRESIDING MEMBER 

Order No. : 04

Date : 01.08.2019

Parties are present through their Ld. Lawyers.

The revision is taken up for hearing.

Heard both sides.

Considered.

In filing the revision, the revisionist submits that the Ld. District Forum has failed to exercise its jurisdiction and arrived at a wrong decision in passing the impugned order being No. 79 dated 01.03.2019.

It is also alleged that the Ld. District Forum acted illegally and committed irregularity in passing the order impugned under this revision.

It is also ventilated District Forum passed the order without hearing the objection against the report by the expert.

It is also alleged that the Ld. District Forum failed to consider that in view of the objection so filed by the OP revisionist, the report the expert cannot be accepted automatically.

Ld. Lawyer appearing for the OPs 1 and 2 have vehemently opposed the contents in the revisional application and has argued that the Ld. Forum did not commit any illegality in passing the impugned order and there is nothing to interfere into such order.

The whole gamut of controversy arises upon the acceptance of the report of Ld. expert without hearing objection filed against the report in MA/8 2018 pending before the Ld. DCDRF, Burdwan, as argued by the Ld. counsel for the revisionist.

It appears that OPs 1 and 2 as complainant filed the complaint case before the Ld. Forum below against the petitioner – revisionist alleging that after completion of measurement of the disputed flat being Flat No. E/8 on the first floor of the proposed multi storied building, namely, “ Pratayee”. They got 710.17 sq. ft. of covered area instead of agreed 714 sq. ft. and thus the super built area come to 887.71 sq. ft. instead of 953 sq. ft. and claimed a shortage of 69.25 sq. ft. in super built up area.

Complainant - OP parties claimed that these petitioners extracted Rs. 71,819/- more + service tax from them which according to them is deficiency-in-service and unfair trade practice on the part of the revisionist – petitioners.

It appears that earlier one Mr. Suranjan Dhar was appointed as an expert for measurement of flat in question.

But upon prayer of the complainant another Civil Engineer was appointed by Ld. Forum as an expert vide order dated 29.09.2016 which was subsequently challenged before the Hon’ble SCDRC and Hon’ble SCDRC was pleased to set aside the said order vide order dated 18.08.2017.

Complainant – OP subsequently prayed for appointment of an expert in view of order dated 18.08.2017 and the Ld. Forum was pleased to allow the same.

Such order was also challenged before the Hon’ble SCDRC. Hon’ble Commission was pleased to reject the same.

Mr. Dulal Chandra Roy, Civil Engineer, was appointed as an expert for the measurement area of the disputed flat.

It is alleged by the revisionist that the said expert served a notice dated 05.01.2019 upon the revisionist and their Ld. Advocate only on 09.01.2019 evening directing to produce the documents relating to firefighting equipments, completion certificate, Building plan etc. which were absolutely beyond the scope and purview of the inspection work as directed by the Ld. Forum below. For such reasons the revisionist preferred a petition before the Ld. Forum at Burdwan for removal of expert by filing an application being No. MA/8/2019 as the revisionist apprehended strongly that the said expert could not impartially carry out the inspection work. Subsequently, the said expert submitted a report.

It is alleged by the revisionist that the impugned report is faulty regarding measurement of the disputed flat and it is also alleged that he reported on various extraneous matters which he was not directed to inspect a report.

It appears that the revisionists filed objection against the report on 01.03.2019 before the Ld. Forum below stating that the report of the said expert so submitted could not be accepted and the report is liable to be disordered. Unfortunately, Ld. Forum below without hearing the objection against the report of the Ld. expert accepted the report of the expert vide Order No. 79 dated 01.03.2019. Being aggrieved by and dissatisfied with the order No. 79 dated 01.03.2019, the petitioners preferred the instant revision.

The question is whether the Ld. Forum below committed any illegality, irregularity or impropriety in passing the impugned order being No. 79 dated 01.03.2019?

On perusal of the impugned order, it appears that the Ld. expert has already inspected the premises after serving the notice upon the parties and in presence of the parties as directed by the Ld. Forum vide Order No. 76 dated 17.12.2018.

It appears that the Ld. expert has also filed a report.

It appears that the Ld. Forum is ready to accept the report of the expert but there is nothing in the impugned order that the report of the expert is accepted.

From a plain reading of the impugned order, it also appears that in the background of the objection regarding appointment and inspection by the expert, the MA Case filed by the OP being 8 of 2019 is posted for hearing will be heard in presence of both the parties and the complainant is also given liberty to file objection against the MA Case for disposal.

So, it is palpably clear that the report of the expert is not accepted. Question of the acceptability of the report arises pending the disposal of the MA Case being 8 of 2019 filed by the revisionist OPs.

So, it is not true that the revisionist is not given any opportunity prior to the acceptance of the report of the expert. There is gulf differences between “ready to accept” and the report is “accepted”. There is nothing in the impugned order that the report of the expert is accepted without hearing or giving an opportunity to the revisionist regarding his grievances as ventilated in MA/8/2018.

The revisionists have missed the tree in the wood in filing the instant revision. Moreover, it is observed by this Commission that is open to the respondent – complainants to establish their case before the Ld. Forum by leading evidence of affidavit of expert as provided U/S. 13 (4) (iii) of the C.P. Act and in that event the revisionist - OPs will also get opportunity to cross-examine the expert by way of questionnaire.

We do not think that the Ld. Forum committed any gross illegality, irregularity or impropriety in passing the impugned order.

There is no good ground for which the impugned order is not sustainable or is liable to be set aside.

Hence,

                                                    ORDERED

The instant revision petition being RP/2/2019 is dismissed on contest.

The impugned order being No. 79 dated 01.03.2019 passed in CC/54/2014 by the Ld. DCDRF, Burdwan is affirmed.

No order as to cost.

Let a copy of this order be supplied to the parties free of cost.

The instant Revision petition is thus disposed of.