State Consumer Disputes Redressal Commission
National Consumer Awareness Group ... vs Sushil Kumar on 26 August, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 34 of 2015 Date of Institution : 25.08.2015 Date of Decision : 26.08.2015 National Consumer Awareness Group Society Regd. Office #175, Sector 45-A, Chandigarh through its Chairman P.J.S. Mehta. Second Address: Gurudwara Babe Ke, Sector 53, Chandigarh. ...... Revision Petitioner/Opposite Party. Versus Sushil Kumar son of Megh Raj resident of House No.1, Ward No.7, Monak, District Sangrur. ....Respondent/Complainant. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS.PADMA PANDEY, MEMBER Argued by:
Sh. Jasmandeep, Advocate for the Revision-Petitioner.
Sh. Ashish Bansal, Advocate for the respondent.
PER DEV RAJ, MEMBER This Revision petition is directed against the order dated 15.06.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, the Opposite Party (now Revision-Petitioner), were proceeded against exparte.
2. Consumer Complaint bearing No.835 of 2014, was filed by the complainant, on the ground that the complainant deposited Rs.1,000/- on 3.10.2005 as membership fee with the Opposite Party - Society and booked a flat for his own residence, the total price whereof was Rs.22,50,000/-. It was further stated that the complainant paid Rs.1,50,000/- towards land cost on 3.10.2005, Rs.1,00,000/- on 27.12.2005, Rs.50,000/- on 12.1.2006, and Rs.37,500/- on 16.3.2006. It was further stated that the Opposite Party vide letter dated 26.2.2006 intimated that the total cost of four bedroom super deluxe flat would be Rs.22,50,000/-. It was further stated that despite depositing Rs.3,37,000/- and Rs.1,000/- towards land cost and membership fee, the Opposite Party failed to deliver the possession of the said flat to the complainant.
3. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party to refund the proportionate share of the complainant after selling the land measuring 15.56 acres or in alternative, refund Rs.3,37,500/- alongwith interest; difference of price of the flat in 2005 and the price of flat in 2013 in the same area, pay Rs.5,00,000/- as compensation for causing mental agony, harassment and financial hardship and Rs.50,000/- as cost of litigation.
4. The Opposite Party, in its reply, while denying the factual matrix of the case, stated that it purchased 15.56 acres of land in the year 2005 for construction of residential flats for its members on no profit no loss basis. It was further stated that the Director, Town and Country Planning Department, Punjab prepared a master plan for the development of the town of Mohali in the year 2008 and the same was subsequently passed by the Director, Town and Country Planning Department. It was further stated that under the master plan, land purchased by the Opposite Party falling under Sectors 91-92-A was reserved for institutional purposes only. It was further stated that the Opposite Party failed to obtain permission for change of land use for residential flats. It was further stated that it was, therefore, decided in the year 2009 that the land of the society would be sold and the amount would be distributed among the members of the Society. It was further stated that some of the members approached the Permanent Lok Adalat, who took responsibility to sell the land. It was further stated that, despite publication, no offer was received by the Permanent Lok Adalat. It was further stated that, however, with great efforts, the agreement to sell cum memorandum of understanding for Rs.21,78,40,000/- dated 14.7.2014 was entered into the Opposite Party Society for sale of its land, in the interest of its members. It was further stated that the Opposite Party Society had already sold the land and distributing the money among the members and was refunding the proportionate share to the members. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. On 15.06.2015, when the consumer complaint was fixed for filing evidence of the Opposite Party, none appeared on its (Opposite Party) behalf and, therefore, it was proceeded against exparte by the District Forum vide order dated 15.06.2015.
6. Feeling aggrieved, the instant Revision-Petition, was filed by the Revision Petitioner/Opposite Party, against the order dated 15.06.2015.
7. We have heard the Counsel for the Revision-Petitioner, respondent, and have gone through the record of the case, carefully.
8. The Counsel for the Revision-Petitioners/Opposite Party, submitted that non-appearance of the Revision-Petitioner/Opposite Party was neither intentional nor deliberate but due to the reason that when the case was called, the Counsel met with an accident when he was on his way to the District Forum, wherein he received minor injuries and had to rush to the doctor for getting first aid treatment. The Counsel has placed, on record, copy of treatment slip dated 15.06.2015 as Annexure R-2. He has further submitted that he reached the District Forum just before 1:00 p.m. but till then, the Opposite Party had been proceeded against exparte by the District Forum. The Counsel has also placed, on record, copies of orders dated 15.06.2015 of the other three cases, to show that his presence in those cases was recorded by the District Forum on the same date. He has further submitted that an application was also filed by the Opposite Party for setting aside the order dated 15.06.2015 but the same was declined by the District Forum vide its order dated 20.07.2015. He further submitted that no prejudice shall be caused to the respondent/complainant, if the exparte order dated 15.06.2015 is set aside and the Revision-Petitioner/Opposite Party is given opportunity to join the proceedings and file its evidence. He further submitted that it is well settled law that no one shall be condemned unheard. He further submitted that the decision of complaint without giving opportunity to the Revision-Petitioners/Opposite Party, to put its version is contrary to the principle of natural justice. He further submitted that, thus, the order of the District Forum, in proceeding exparte against the Opposite Party, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that the absence of the Revision-Petitioner/Opposite Party, on 15.06.2015, in the District Forum, was intentional and deliberate.
10. Perusal of the record of the District Forum reveals that the complaint was admitted, vide order dated 19.12.2014 and notice was ordered to be issued to the Opposite Parties, by it (District Forum). On 23.03.2015, since notice sent to the Opposite Party through regd. AD on 10.2.2015 was not received back served or unserved and as 30 days period had already expired, and nobody had appeared before the District Forum on 23.03.2015, the District Forum after taking presumption of service of the Opposite Party, proceeded the Opposite Party exparte. Subsequently, on 13.4.2015, on the no objection given by the Counsel for the complainant, the aforesaid order dated 23.03.2015 was set aside by the District Forum and the case was listed for filing reply and evidence of the Opposite Party for 24.04.2015. On 24.4.2015, the case was again adjourned to 04.05.2015 for the same purpose, on which date, it was again adjourned to 18.05.2015. On 18.05.2015, the Opposite Party filed its reply but none was present on behalf of the complainant on that date. However, on the asking of the Counsel for the Opposite Party, the case was fixed before the Lok Adalat on 05.06.2015 for settlement, if any. However, no settlement took place on 05.06.2015 in the Lok Adalat and the case was adjourned to 15.06.2015 for filing evidence of the Opposite Party, on payment of costs already imposed. However, as stated above, since, on 15.06.2015, none appeared on behalf of the Opposite Party, on account of the reason that the Counsel had met with an accident on the same very day, as a result whereof, it (Opposite Party) was proceeded against exparte.
11. It may be stated here, that it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper- technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
12. It is evident from record that on 15.06.2015, when the case was listed for filing evidence on behalf of the Opposite Party, none appeared on behalf of the Opposite Party, as a result whereof, it (Opposite Party) was proceeded against exparte. No doubt, the Counsel for the Revision Petitioner/Opposite Party moved an application before the District Forum under Order IX rule 7 C.P.C read with Section 151 CPC for setting aside the exparte order dated 15.06.2015, which was rejected by the District Forum vide order dated 20.07.2015. In that application, the Counsel for the Revision Petitioner/Opposite Party duly mentioned the same ground of his meeting with an accident on 15.06.2015, which he has stated in the Revision Petition filed before this Commission. Alongwith the application, aforesaid, which was duly supported by the affidavit, the Counsel for the Revision Petitioner/Opposite Party also annexed copy of treatment slip dated 15.06.2015 (Annexure A-I), issued by Dr. K. R. Dhawan, M.B.B.S., M.I.M.A, Family Physician, 1670, Sector 15, Panchkula, to corroborate his plea of having met with an accident. To further strengthen his contention that after taking first aid treatment, he came to the District Forum and attended other cases in same Forum, he placed, on record, copy of zimini orders dated 15.06.2015 passed by the District Forum in CC/794/2014, CC/795/2014 and CC/186/2015, wherein his presence is recorded. From the above, it is clear that the non-appearance of the Counsel for the Revision Petitioner/Opposite Party on 15.06.2015, when the case was called by the District Forum, was not intentional or wilful but due to the circumstances beyond his control. However, it was required of the Counsel for the Revision Petitioner/Opposite Party, to intimate the factum of his meeting with an accident through telephone or mobile, after taking first aid treatment or send some Proxy Counsel on his behalf. However, he did not bother to intimate the District Forum even telephonically. However, perusal of zimine orders dated 15.6.2015 passed in other three cases, which the Counsel annexed with his application, showed that he subsequently caused appearance in those three cases before the District Forum. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the Opposite Party, to put appearance before the District Forum and file its evidence, by way of affidavit(s), so that the complaint could be decided, on merits, and the rights of the Parties, are finally determined, by Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside. No doubt, for, whatsoever, the reason may be, by not putting in appearance and file evidence, by way of affidavit, the Opposite Party/Revision-Petitioner, certainly caused delay, in the disposal of the complaint, on merits.
13. According to Section 13 (3A) of the Act, every endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(ies), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint was filed, in the District Forum, on 17.12.2014. A period of three months had already expired on 16.03.2015. The Revision-Petitioner, is, thus, required to be burdened with costs, to meet the ends of justice.
14. No other point, was urged, by the Counsel for the Revision-Petitioner, and respondent/complainant.
15. For the reasons recorded above, the Revision-Petition is accepted. The order dated 15.06.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/-. The District Forum shall grant only reasonable opportunity to the Opposite Party, for filing evidence, by way of affidavit(s), and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of costs to the tune of Rs.3,000/-, referred to above, to the complainant/respondent, shall be a condition precedent. In other words, the payment of costs, shall be made, before filing of evidence by the Opposite Party/Revision Petitioner, by way of affidavit(s).
16. The parties are directed to appear, before District Forum (I) on 07.09.2015 at 10.30 A.M., for further proceedings.
17. The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 07.09.2015 at 10.30 A.M.
18. Certified Copies of this order, be sent to the parties, free of charge.
19. The Revision Petition file be consigned to the Record Room, after due completion.
Pronounced August 26, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad