State Consumer Disputes Redressal Commission
M/S Nikunjam Constructions Pvt. Ltd., vs Jayaprakash Sivasankaran Nair, on 15 June, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Revision Petition No. RP/12/28 (Arisen out of Order Dated null in Case No. CC/11/357 of District Thiruvananthapuram) 1. M/S NIKUNJAM CONSTRUCTIONS TRIVANDRUM KERALA ...........Appellant(s) Versus 1. JAYAPRAKASH SIVASANKARAN NAIR FLAT NO.10A,HARMONY NIKUNJAM APARTMENTS,VELLAYAMBALAM, TRIVANDRUM KERALA ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
REVISION PETITION NO. 28/12
ORDER DATED : 15.06.12
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
1. M/s Nikunjam Constructions Pvt. Ltd., Nikunjam Constructions Pvt. Ltd., T.C. 4/2554 (5), Indraprastham, Thiruvananthapuram rep by its Managing Director.
2. S. Krishna Kumar : REVISION PETITIONERS Managing Director, Nikunjam Constructions Pvt. Ltd., T.C. 4/2554 (5), Indraprastham, Thiruvananthapuram.
(By Adv. K. Murlidharan Nair) Vs
1. Jayaprakash Sivasankaran Nair, Flat No. 10 A, Nikunjam Harmony Apartments, Vellayambalam, Thiruvananthapuram.
2. Raja Sree : RESPONDENTS Flat No. 10 A, Nikunjam Harmony Apartments, Vellayambalam, Thiruvananthapuram.
(By Adv. Chirayinkil C.P. Bhadrakumar) ORDER SHRI.S. CHANDRA MOHAN NAIR : MEMBER
The appointment of a commission by the CDRF, Thiruvananthapuram in CC.357/11 is being vehemently challenged in this revision petition by the opposite parties on the ground that the Forum below had no jurisdiction to grant such an order. As per the impugned order dated 30.4.12 in IA No. 11/12 filed by the complainant, the Forum below had appointed a commission to report about the nature of the complex as per the approved plan and also the present status of the complex.
2. The short question that is to be answered is whether the Forum below had any such jurisdiction or power to appoint a commission to inspect the premises in question when there is already an injunction order passed by the Forum below restraining and prohibiting the counter petitioners/opposite parties from converting the space kept in the residential complex into a commercial area and to prevent them from alienating the same to third party. The learned counsel for the revision petitioners submitted before us that the appointment of a commission to inspect the disputed premises is un-warranted in the facts and circumstances of the case and hence the same is illegal. It is his very case that the opposite parties have admitted that there is commercial space owned by them and having admitted the fact that there is commercial space, there is no occasion or reason for the forum below to appoint a commission to verify whether there is commercial space or not. The learned counsel has also relied on the decision of the Hon. High Court in W.P ( c) No.7693/10 (2010 (2) KLT 228) wherein it is held that in passing interlocutory orders, the Forums constituted under the Consumer Protection Act also have to look into the points of prima-facie case, balance of convince and irreparable loss and Forums are not expected to pass orders in every applications without looking into the fact that the opposite parties are not put to harassment and difficulties at the end of the trial of the case. The learned counsel has also relied on an earlier decision by the Hon. High Court in "Black Marble Granites V. Biju" (1998 (2) KLT 635) wherein it is held that an order of injunction granted ex-parte causes injury to the person against whom the order is granted. Invoking the ratio of the above decisions, the learned counsel submitted before us that the order appointing the expert commission to inspect the premises and prepare the report about the present nature and status of the complex is highly illegal and hence is liable to be set aside.
3. The revision petition was originally posted to 2.7.12 after admission hearing. The counter petitioner, on filing the vakalath, had advanced the hearing and the matter was taken up for hearing on 8.6.12. The learned counsel for the revision petitioners and the learned counsel for respondent were heard.
4. It is submitted by the learned counsel for the counter petitioner/respondent that the revision petition is lacking bonafides and it is only to protract the matter before the Forum below that the opposite parties have approached this Commission with unclean hands. It is further submitted that the order appointing the commission was passed as back on 31.4.12 and it was passed after hearing both sides and also that the expert commissioner was appointed from the panel submitted before the Forum. He has also a case that for the proper disposal of the IA allowing the order of injunction petition and the complaint in total, the Forum below has found that a report about the nature and present status of the complex is highly essential. He has further submitted that no harm will be caused to the opposite parties if the expert inspects the premises and prepares a report and the complainant has a prima-facie case for appointing the commission. It is his very case that the balance of convince is also in favour of the complainants. In short, the learned counsel for the respondents has submitted that the revision petition is liable to be dismissed.
5. On hearing both sides, it is found that the revision petition is filed against the order of the Forum below in appointing the expert commission to inspect the nature and present status of the complex for the proper disposal of the IA granting injunction from converting the space kept in the residential complex into commercial area and to prevent them from alienating the same to third parties. Though the learned counsel for the revision petitioners vehemently argued before us that for the proper disposal of the revision petition, the Lower Court Records are very much necessary, we find that we are not delving into the merits of the case but only about the particular aspect of the veracity of appointing the expert commission for obtaining a report required for the purpose of finally disposing of the IA granting injunction. Though the learned counsel has placed much reliance on the decision in 'Black Marble granites V. Biju' (cited Supra) we find that it is about granting an injunction exparte. But in the instant case, an injunction is already granted and the revision petitioners/opposite parties can raise the points so held by the Hon'ble High Court before the Forum. The contentions regarding the requirements of prima-facie case balance of convince and irreparable loss etc. are matters considered by the Forum below while passing the order in IA 335/2011. However the revision petitioners/opposite parties have not come up in revision/appeal against the said order and we find that the revision petitioners are aggrieved only about the appointment of an expert commission consequent to the order of injunction. It is found that that the appointment of a commission for the proper disposal of a case by the Forum below cannot be interfered especially when the Forum finds that a report is very much essential for the proper disposal of the I.A. granting injunction. It is also not fair on the part of this Commission to interfere in each and every order passed by the Forum below which is taken on good faith. It appears that the results of testing the veracity of the order appointing a Commissioner to inspect and report the nature and present status of the complex in question with the touch stores of "prima facie case, balance of convenience and irreparable loss" are also in favour of the complainants. We do not find any illegality or material irregularity in the proceedings of the Forum below while passing the impugned order. The revision petition is only liable to be dismissed and it is done so accordingly.
In the result, the revision petition is dismissed. The order dated 30.4.12 in IA.11/12 in CC.357/11 stands confirmed. In the nature and circumstances of the present revision petition, there is no order as to costs.
S. CHANDRA MOHAN NAIR : MEMBER
[ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER