Date of filing: 01.06.2017

Date of hearing: 13.11.2017

         The instant Revisional Application under Section 17(1) (b) of the Consumer Protection Act, 1986(hereinafter referred to as ‘the Act’ ) is at the behest of the Opposite Party to assail the Order No. 10 dated 04.05.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No.596 of 2016.

      The Opposite Parties herein, who are spouses to each other lodged a complaint under Section 12 of the Act against the Revisionist/Petitioner before the Ld. District Forum on the allegation of deficiency in services and unfair trade practices on the part of them in providing the facilities as per Agreement dated 17.11.2016.  After entered appearance, the OP/revisionist by filing a written version has stated that there is no privity of contract between the parties.  Subsequently, by filing an application the OP/revisionist challenged the maintainability of proceeding on the ground that the complainants are not ‘consumer’ to the OP/revisionist.  By the impugned order, the Ld. District Forum has observed that the crux of the controversy under disposal is kept open for consideration at the time of final hearing of the case.  To impeach the said order, the OP has come up in this Commission with the instant revision petition.

          Mr. Sumeet Chowdhury, Ld. Advocate for the revisionist has submitted that observation of the Ld. District Forum goes to show that his client will not get any justice from the Ld. District Forum where the matter is pending for consideration.  He has referred to a paragraph of the said order which is set out: “It is also stated that gross difference in the actual rubber stamp and the statement makes it absolutely clear that the OP is always trying to deceive the consumers and also trying to mislead the Forum”.  Ld. Advocate for the revisionist has submitted that a Judge acts as a referee who can blow his judicial whistle when the ball goes out of play, but when the game restarts, he must neither take part in it nor tell the players how to play and in this regard he has referred several decisions including the decision of foreign Court.  Ld. Advocate for the revisionist has finally submitted that when in the written version as well as in the questionnaire, the question raised by the OP to that effect, the Ld. District Forum should have disposed of the application on merit without keeping it open for final hearing of the case.

        Per contra, Mr. Abhik Kumar Das, Ld. Advocate for the opposite parties has placed reliance to a decision passed by this Commission in A/454/2017 (The Chief In-charge, M/s. Country Vacations & Anr. – Vs. – Jayanti Mukherjee) and submitted that in view of the said decision, the Ld. District Forum has rightly passed the order which should not be interfered with.

           I have considered the rival contention of the parties and scrutinised the materials on record.

          The Revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under;-

          “to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity”.

         The above provision makes it quite clear that the revisional jurisdiction conferred on the State Commission is limited to the extent of jurisdictional illegality or material irregularity.  Admittedly, there is no jurisdictional error in passing the order by the Ld. District Forum.  By the impugned order, the Ld. District Forum did not dispose the application challenging the maintainability rather keep the matter is pending for final adjudication along with other contentious issues.  The fact remains that the case is otherwise ready for final hearing and in such a situation, it would be unwise to decide the maintainability when a mixed question of fact and law are involved to decide the dispute.  The OP/revisionist will not be prejudiced in any way if the application challenging the maintainability of the proceeding on the ground that no relationship of consumer-service provider exists is considered at the time of final decision of the case.

          The impugned order does not show that it suffers from any material irregularity.  However, since judicial restraint is a virtue, the Ld. District Forum should have restrained itself from commenting that the OP/revisionist is always trying to deceive the consumers and also trying to mislead the Forum.  Therefore, the said part of the order be expunged from the impugned order  otherwise I do not find any jurisdictional error or material irregularity in passing the order impugned, the impugned.

         In view of the above, the instant Revision Petition is dismissed on contest with an observation that the impugned order is modified only to the extent that the sentence – “......... it is absolutely clear that the OP is always trying to deceive the consumers and is also trying to mislead the Forum” be expunged from the Order No.10 dated 04.05.2017 in CC/596/2016.  However, there will be no order as to costs.

        The parties are directed to appear before the Ld. District Forum on 19.12.2017 and on that date the Ld. District Forum is requested to fix a date for final hearing and thereafter to dispose of the complaint in accordance with law.

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