State Consumer Disputes Redressal Commission
M/S Hash Builders Pvt. Ltd. And Another vs Lakhvinder Singh Bhullar And Others on 13 April, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Misc. Application No.250 of 2023
In/and
Revision Petition No.07 of 2023
Date of Institution : 08.02.2023
Date of Reserve : 22.03.2023
Date of Decision : 13.04.2023
1. M/s Hash Builders Pvt. Ltd., Registered Office SCO 311-312,
Sector 40-D, Chandigarh through its Managing Director Sudhir
Chadha.
2. Sudhir Chadha, son of Sh.K.L.Chadha, Managing Director of
M/s Hash Builders Pvt. Ltd., resident of H.No.605, IAS/IPS
Society, Sector 49-A, Chandigarh, at present resident of
H.No.591-A, First Floor, Sector 18-A, Chandigarh.
....Petitioners/Opposite Parties No.3&4
Versus
1. Lakhvinder Singh Bhullar son of Sh.Sadhu Singh Bhullar, aged
about 79 years, resident of H.No.1534, Sector 18-D,
Chandigarh.
........ Respondent No.1/Complainant
2. THDC Limited, E Block, Voltas Premises, T.B. Kadam Marg,
Chinchpokli, Mumbai-400033 through its Managing
Director/Chief Executive Officer.
3. Sanjay Dutt, Managing Director and Chief Executive Officer of
THDC Limited, E Block, Voltas Premises, T.B.Kadam Marg,
Chinchpokli, Mumbai-400033.
4. The Defence Services Cooperative House Building Society Ltd.,
Mohali having its Office at Village Kansal, Post Office Nada,
Tehsil Kharar, District Mohali, Regd. No.2527 of 1995 through
its President/Vice President/Secretary/Executive
Member/Authorized Signatory.
.....Respondents No.2-4/Opposite Parties No.1,2&5
Misc. Application No.250 of 2023 2
In/and
Revision Petition No 07 of 2023
Revision Petition against the order dated
22.03.2022 of the District Consumer
Disputes Redressal Commission, S.A.S.
Nagar, Mohali.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the petitioners : Sh.Sunil Chadha, Sr. Adv. assisted by Ms.Taanvi Dhull, Advocate For respondent No.1: Sh.Raman Walia, Advocate SIMARJOT KAUR, MEMBER M.A.No.250 of 2023 (Delay) & Main Case The present revision petition has been filed by the petitioners- M/s Hash Builders Pvt. Ltd. & Anr. to challenge the order dated 22.03.2022 passed by District Consumer Disputes Redressal Commission, SAS Nagar, Mohali (in short, "the District Commission"), whereby the petitioners/OPs No.3&4 were proceeded against ex-parte.
2. There is delay of 233 days in filing the Revision Petition. M.A.No.250 of 2023 was filed which was supported by an affidavit.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
4. Briefly, the facts of the case as made out by the petitioners in the revision petition that notices were issued to petitioners/OPs No.3&4 on 10.09.2021, were not received back till Misc. Application No.250 of 2023 3 In/and Revision Petition No 07 of 2023 date either delivered or undelivered. As per report of the concerned Clerk, a period of 30 days' had expired but Registered Covers were not received back. By drawing presumption that period of more than 30 days had expired, thus the service was complete. Meaning thereby OPs No.3&4/petitioners were served. However, none appeared on their behalf inspite of service and vide order dated 22.03.2022, petitioners/OP No.3&4 were proceeded ex-parte by the District Commission.
5. The said order dated 22.03.2022 passed by the District Commission has been challenged by the petitioners/OPs No.3&4 by raising a number of grounds.
6. Sh.Sunil Chadha, Sr.Advocate assisted by Ms.Taanvi Dhull, Advocate submitted that the District Commission had proceeded OPs No.3&4 ex-parte on 22.03.2022 after drawing the presumption that petitioners/Ops No.3&4 had already been served. He has also submitted that both the petitioners/OPs were not residing at the addresses mentioned in the complaint filed against them by the complainant. Subsequently, petitioners/OPs No.3&4 came to know about the ex-parte order on 12.09.2022, thereafter immediately petitioners prepared application dated 26.09.2022 for setting aside the ex-parte order. Although Sh.Saurav Kanojia, Advocate appeared before the District Commission and filed his power of attorney on 28.09.2022, the District Commission did not entertain the application but only marked his presence and adjourned the case for 20.12.2022. Learned counsel has also Misc. Application No.250 of 2023 4 In/and Revision Petition No 07 of 2023 stated that on 28.09.2022 counsel was informed by the District Commission SAS Nagar that OPs No.3&4 could bring their reply and evidence. Accordingly, on 16.12.2022 petitioners/OPs No.3&4 prepared their reply and evidence, but the District Commission marked the presence of the counsel and complaint was simply adjourned to 01.02.2023 for evidence of OPs. Learned counsel has also submitted that the counsel appeared for OPs No.3&4 before the District Commission and requested for setting aside the ex- parte order dated 22.03.2022 but District Commission did not entertain the counsel by verbally stating that the District Commission has no power to recall their own order dated 22.03.2022. Thereafter on 01.02.2023 the petitioners approached this commission by way of filing Revision Petition along with application for condonation of delay. Learned counsel has relied upon judgments passed by the Hon'ble Surpeme Court in case 'M/s Daddy's Builders Pvt. Ltd. Anr. Vs. Manisha Bhargava and Anr. in Appeal (Civil) 1240 of 2021, Diamond Exports & Anr. Vs. United India Insurance Company Limited & Ors., in Civil Appeal No.7546 of 2021, decided on 14.12.2021 in support of his arguments.
7. The delay had occurred in filing of the Revision Petition as the petitioners were not aware about the ex-parte proceedings, thereafter Revision Petition was filed when they came to know about these proceedings.
Misc. Application No.250 of 2023 5
In/and Revision Petition No 07 of 2023
8. While filing the application for condonation of delay along with the Revision Petition it was specifically mentioned that the delay had occurred due to the reasons and circumstances beyond the reach of the petitioners, which was not intentional and deliberate. A prayer was made in the application for condonation of delay of 233 days in filing the Revision Petition for which the petitioner would suffer financial loss and injury which could not be compensated in terms of money. It has also been prayed that the ex-parte order may be set aside and liberty be granted to the petitioners to put their version before the District Commission. It was also mentioned that petitioners are ready to compensate the opposite party in monetary terms in case the liberty is granted to file reply, put up evidence and argue the case on merits.
9. Sh.Raman Walia, Advocate counsel for the respondent No.1/complainant has appeared in response to the notice issued, but no reply to the application for condonation of delay has been filed. He has also submitted that he has no objection in case the ex-parte order is set aside and petitioners are given the chance to file reply and evidence before the District Commission.
10. We have heard the arguments raised by learned counsel for the petitioners as well as counsel for the respondent No.1.
11. We have also carefully perused the ex-parte order dated 22.03.2022 passed by the District Commission and other documents available on the file.
Misc. Application No.250 of 2023 6
In/and Revision Petition No 07 of 2023
12. Facts relating to filing of complaint, issuance of notice and thereafter passing of ex-parte order after service and filing of Revision Petition before this Commission are not in dispute. It is also not in dispute that complaint is still pending before the District Commission.
13. Although there is long delay of 233 days in filing the Revision Petition but the complaint is still pending before the District Commission. As per ratio of the decision in a number of cases of this Commission, Hon'ble National Commission and Hon'ble Supreme Court of India, wherein it has been held that in case merits in the case, the courts are supposed to be liberal in condoning the delay. Accordingly, the delay of 233 days in filing the Revision Petition is condoned. M.A.No.250 of 2023 is disposed of.
14. In view of the facts as mentioned, above we find merit in the contentions made by learned counsel for the petitioners. The service was complete but inspite of service none-appeared. However, the reasons have been mentioned that petitioners/OPs No.3&4 were not residing at the addresses mentioned in the complaint. The other reason mentioned is that petitioner/OP No.4 appeared in two identical complaints i.e. CC No.54 & 55 of 2022 on 12.09.2022, which were pending before the State Consumer Disputes Redressal Commission, UT, Chandigarh, the petitioner/OP No.4 was informed by the counsel appearing for the complainants in the above said two complaints that respondent Misc. Application No.250 of 2023 7 In/and Revision Petition No 07 of 2023 No.1/complainant had also filed complaint before the District Commission SAS Nagar, Mohali against them. They also found out that petitioners/OPs No.3&4 were proceed ex-parte vide order dated 22.03.2022.
15. The issue for decision by this Commission is as to whether the ex-parte order dated 22.03.2022 passed by the District Commission is contrary to the principles of natural justice and the same can be set aside by this Commission to meet out the ends of justice to the parties.
16. We have perused the record of the District Commission and it has not been ascertained as to whether the notices were received by the petitioners/OPs No.3&4 or not? In such eventuality the benefit of doubt goes in favour of petitioners/OP No.3&4. In the present case, petitioners/OP No.3&4 were proceeded ex-parte only on account of presumption of service on the expiry of period of 30 days. Their non-appearance was not willful or otherwise.
17. The object of service of summons is to apprise the petitioners/OP No.3&4 about pendency of the case and it is necessary that opposite parties must have knowledge about pendency of the case against them. The petitioners/OPs No.3&4 have specifically mentioned in the grounds of revision petition that OPs No.3&4 was not having any knowledge of proceedings of the complaint before the District Commission and they were proceeded ex-parte only on the presumption of service of period of 30 days. Therefore, in the interest of justice, petitioners/OP No.3&4 deserve Misc. Application No.250 of 2023 8 In/and Revision Petition No 07 of 2023 to be granted one more opportunity to contest the case. This Commission having appellate jurisdiction over the ex-parte proceedings dated 22.03.2022 passed by the District Commission.
18. The Order 9 Rule 7 of the Code of Civil Procedure (CPC), provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non- appearance.--
Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
19. To attract the provisions of Order 9 Rule 7 of CPC, the appellants are required to show not only bonafide reason for their failure to appear in the Court on the date fixed but also to show as to what injustice has been caused to them. Hon'ble Supreme Court in case "Sangram Singh v. Election Tribunal Kotah & Anr." AIR 1955 Supreme Court 425, while considering the provisions of Order 9 Rule 6 (1) (a) of CPC, has held as under:
"When the defendant has been served and has been afforded an opportunity of appearing then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) (of Order 9) does is to remove a bar and no Misc. Application No.250 of 2023 9 In/and Revision Petition No 07 of 2023 more. It merely authorises the Court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties. The contrast in language between Rules 7 and 13 emphasises this."
20. Said judgment was relied upon by the Hon'ble Punjab and Haryana High Court in a case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) and the relevant para No.8 of the judgment is reproduced as under:-
"8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
21. The power of the Court to set aside the ex parte order can be by imposing reasonable costs which the Court can put to the party on certain terms as spelled out from the expression "upon such terms as the Court directs as to costs or otherwise". The Hon'ble Supreme Court in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. Misc. Application No.250 of 2023 10 In/and Revision Petition No 07 of 2023 The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex-parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."
22. In view of facts and the judgments as mentioned above and in the interest of justice to prevent the miscarriage of justice and also to meet the ends of justice, one more opportunity is granted to the petitioners to put up their case before the District Commission. The ex-parte proceedings dated 22.03.2022 are set aside subject to payment of costs and moreover no prejudice would be caused to respondent No.1/complainant. Otherwise also, the natural justice demands that no one should be left unheard and adequate opportunity is required to be granted to the parties to the case. Even otherwise also learned counsel for the respondent No.1/complainant has submitted during the course of arguments that respondent No.1/complainant has no objection in case opportunity is granted to petitioners/OPs No.3&4 to file reply and evidence before the District Commission Accordingly, we are of the considered view that the impugned order dated 22.03.2022 is liable to be set aside without touching the merits of the case. Misc. Application No.250 of 2023 11
In/and Revision Petition No 07 of 2023
23. As a sequel of above discussion and by considering the facts and circumstances of the case, the revision petition is allowed and the exparte order dated 22.03.2022 passed by the District Commission is set aside, subject to payment of cost of Rs.20,000/-, out of which an amount of Rs.10,000/- be given to the respondent No.1/complainant and Rs.10,000/- be deposited in the Consumer Legal Aid Account of the District Commission by the petitioners. The District Commission is also directed to allow petitioners/OPs No.3&4 to file reply and to lead evidence in support of their defence within a period of 30 days from the receipt of copy of the order and thereafter allow the respondent No.1/complainant to file rejoinder and rebuttal of evidence, if any. The District Commission is also directed to ensure the costs imposed is deposited/paid before taking the written reply/evidence. It goes without saying that if the written reply/evidence is not filed within the stipulated period of 30 days from the date of receipt of copy of the order or if the cost imposed is not paid within the stipulated period of 30 days, the written reply of the OPs No.3&4 shall not be taken on record for consideration, and the District Commission shall so proceed further with the adjudication of the case by considering the documents available on record.
24. Since the Revision Petition is allowed, as such the pending applications if any are also disposed of.
25. The Registry is directed to send the copy of this Order to the parties as passed in the Revision Petition immediately Misc. Application No.250 of 2023 12 In/and Revision Petition No 07 of 2023 without any further delay. The Registry is also directed to forthwith communicate the Order to the District Commission by the fastest mode available i.e. email. Dasti, in addition, to facilitate timely immediately.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER April 13, 2023 (Rupinder 2)