State Consumer Disputes Redressal Commission
Ram Kishan Shinde vs Bheta Vividh Karyakari Seva Sahakari ... on 22 January, 2013
1 FA/204/2007
Date of filing :13/03/2007
Date of order :22/01/2013
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. : 204 OF 2007
IN COMPLAINT CASE NO.: 165 OF 2005
DISTRICT CONSUMER FORUM : LATUR
Ram Kishan Shinde
R/o. Bheta Tq.Ausa,
Dist.Latur. Appellant
VERSUS
1. Bheta Vividh Karyakari Seva Sahakari Society Ltd
Through it's Sectretary
R/o.Bheta Tq.Ausa,
Dist.Latur.
2. Chairmen
Shrikrishan Ambadas Mane
Bheta Vividh Karyakari Seva Sahakari Society Ltd
R/o.Bheta Tq.Ausa,
Dist.Latur.
3. Secretary
Bhavsar Vithoba Kamble
Bheta Vividh Karyakari Seva Sahakari Society Ltd
R/o.Bheta Tq.Ausa,
Dist.Latur.
4. Rameshwar Dhondiba Ambure
Ex-secretary of Bheta Vividh Karyakari Seva Sahakari,
Society Ltd R/o.Bhavsar Galli Ausa,
Tq. Ausa Dist.Latur.
Respondents
CORAM : Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.A.K.Jawalkar present for the appellant.
Adv.V.P.Golewar present for the respondent.
O R A L O R D E R Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 12/02/2007 passed by the Dist. Forum, Latur in CC.No. 165/2005 whereby the said complaint has been partly allowed.
2 FA/204/2007
2. The facts in brief giving rise to this appeal are as under.
The complainant/appellant herein had filed the complaint bearing CC. No. 165/2005 before the Dist. Forum, Latur against the original opponents i.e. respondents herein praying that they be directed to cancel the illegal recovery process of Rs 64,000/- and refund that excess paid amount of Rs 3,16,765/- along with interest @ 18 % p.a. from the date of deposit till the realisation of the entire amount and further they be directed to pay Rs 20,000/- to him ( complainant ) towards mental harassment and Rs 10,000/- towards cost of the complaint.
3. The respondents appeared before the District Forum after receiving notice of that complaint. The respondent common Nos. 1 to 3 filed common written statement. The respondent No. 4 filed separate written statement. All of them denied the claim. The Dist. Forum below after giving opportunity of hearing to both the sides and considering the evidence brought on record, passed the impugned judgment and order dated 12/02/2007. The Dist. Forum thereby directed respondent Nos. 1 to 3 to issue account extract to the complainant from the year 1995 within the period 30 days on receiving copy of that order. The Dist. Forum below further directed to respondent No. 1 , 2 and 3 to pay to the complainant jointly and severally compensation of Rs 3,000/- towards mental harassment and Rs 1000/- towards cost of the complaint within the period of 30 days on receiving the order.
4. Feeling dissatisfied with the said order, the original complainant has preferred this appeal.
5. We have heared Adv.Shri.A.K.Jawalkar, appearing for the appellant and Adv.Shri. V.P.Golewar present for the respondent Nos. 1,2 and 3. None is present for the respondent No. 4 though duly served. We have perused the papers placed before us.
3 FA/204/2007
6. Adv.Shri.Golewar raised the objection about maintainability of the complaint and submitted that the original opponent Nos. 1, 2 and 3 who are respondent Nos. 1, 2 and 3 herein had filed appeal No. 188/2007 challenging the same impugned judgment and order dated 13/01/2012 passed against them in CC. No. 188/2007 and that this Commission after hearing, passed the order on 13/01/2012 and thereby allowed that appeal, quashed and set aside the impugned judgment and order passed by Dist. Forum dismissed the complaint. He further submitted that as in the said appeal No. 188/2007, entire complaint has been dismissed, this appeal which is filed by the original complainant against the same order which has been set aside is not maintainable. He also directed that only remedy available to the original complainant is to file Revision Petition before Hon'ble National Commission against the said order passed in appeal No. 188/2007. He therefore submitted that the present appeal be dismissed. He relied upon the observations made by the Hon'ble Bombay High Court in the case of Arvind Nathubhai Dattani - V/s- Maniben Karsandas Dattani and another reported in 2012 (2) Mh.L.J. 20. It is observed by the Hon'ble Bombay High Court that once the Court comes to the conclusion that its co-ordinate Bench has dismissed the suit by proceeding under Explanation to Rule 2 of Order 17 and decided the suit on merits, the only remedy available to the plaintiff is to challenge the order in appeal.
7. On the other hand, Adv. Shri.Jawalkar appearing for the appellant submitted that the appeal bearing No. 188/2007 filed by the respondent Nos. 1,2 and 3 before this Commission was restricted only to the extent of the order passed by the Dist. Forum granting relief which was not claimed by the complainant in the complaint. He further submitted that this Commission considered in that appeal only question as to whether the relief granted by the Dist. Forum without claiming the same by the complainant is proper, legal or correct. He further submitted that the said order passed by this Commission in appeal No. 188/2007 can have bearing only to the extent of setting aside the order by which the relief which was not claimed by the complainant. He further submitted that this appeal 4 FA/204/2007 can be considered for prayer regarding grant of actual relief sought for in the complaint. He therefore submitted that this appeal is maintainable for considering the relief sought for and not considered by District Forum below. He thus submitted that the appeal may be heard and decided on merit.
8. The question of maintainability of the appeal is involved in the present appeal. We therefore to heard both the parties on the point of maintainability of the appeal. We have also called the record and proceeding of appeal bearing No. 188/2007 and we have also perused the same. The appellants in the said appeal memo ( who are respondents Nos. 1 and 2 in this appeal ) had prayed that the appeal may be allowed and impugned judgment and order dated 12/02/2007 passed by the Dist. Forum below in CC. 165/2005 may be quashed and set aside. This Commission heard advocates of both sides in that appeal No. 188/2007 on 13/01/2012 and passed the following final order on the same date in that appeal.
"1. Appeal is allowed.
2. The impugned judgment and order passed by Dist. Forum is hereby quashed and set aside.
3. Complaint stands dismissed.
4. No order as to cost.
5. Pronounced and dictated in the open court.
6. Copies of the judgment be issued to both the parties".
The said final order was passed after giving reasons. In our view once the complaint has been dismissed in its entirely, by this Commission, we can not again consider any relief sought for in that complaint in this appeal. This Commission has no power of review. Entertaining of this appeal as against the said earlier order about dismissal of the complaint, would amount reviewing the said order passed by this Commission. Therefore, we hold that once this Commission has dismissed complaint bearing No. 188/2007 the present appeal filed by the original complainant against the final order passed in that complaint is not maintainable. We thus hold 5 FA/204/2007 that ratio of the order case relied on by the learned counsel for respondent Nos.1,2 and 3 is applicable to the present case. Therefore, the present appeal is not maintainable before this Commission.
O R D E R
1. The appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment and order be furnished to both the parties.
K.B.Gawali, B.A.Shaikh Member Presiding Judicial Member Patil A.H. Steno H.G.