Calcutta High Court (Appellete Side)
Smt. Pritikana Saharoy vs Smt. Durga Mondal on 29 September, 2016
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
1
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Md. Mumtaz Khan
C.O. No. 2925 of 2016
Smt. Pritikana Saharoy
Vs.
Smt. Durga Mondal
For the petitioner : Mr. Avik Mitra
Mr. Syed Julfikar Ali
For the opposite party : Mr. Haradhan Banerjee
Mr. Amitava Pain
Mr. Subhrangshu Dutta
Mr. P.P. Mukherjee
Heard on: 21.09.2016
Judgement on: 29.09.2016
Md. Mumtaz Khan, J. :
This revisional application is directed against the order no.3 dated July 15, 2016 passed by the State Consumer Disputes Redressal Commission, West Bengal in Miscellaneous Application No. MA/666/2016 in First Appeal No. A/234/2016 staying further proceedings of the Execution Case No. 69/206 pending before the District Consumer Redressal Forum, Howrah.
The petitioner herein filed an application before the District Consumer Disputes Redressal Forum, Howrah on the alleged 2 deficiency of service on the part of the opposite party under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the said Act) inter alia, praying for a direction upon the opposite party to complete the remaining work of the flat in question forthwith and hand over the possession of the same and execute and register a Deed of Conveyance and/or any other document necessary for effectively transferring the ownership of the said flat to the complainant immediately and also for compensation against the loss, mental agony and harassment suffered by her for such deliberate delay of possession etc. The said complaint was at first dismissed in the District Forum as also the appeal preferred before the State Consumer Disputes Redressal Commission, West Bengal. But in revision the orders passed by the fora below were set aside by the National Consumer Disputes Redressal Commission, New Delhi and the District Forum was directed to decide the case afresh within a stipulated period. Thereafter District Consumer Disputes Redressal Forum, Howrah after contested hearing allowed the complaint of this petitioner with cost with a direction upon the O.P. to hand over the flat in question after executing and registering the deed of conveyance in her favour after receiving the due amount of Rs. 7,20,000/- and also pay compensation of Rs. 50,000/- within 60 days from the date of the order failing which petitioner will be at liberty to put the order in execution. Petitioner 3 then filed the execution case in question for failure on the part of the opposite party to comply the said direction.
It was submitted by the learned advocate appearing for the petitioner that opposite party surreptitiously behind the back of the petitioner without serving any copy of stay application managed to obtain the order of stay of the execution case and the State Commission without imposing any condition or obtaining any security from the opposite party stayed the further prosecution of the execution case which is bad in law and violation of principles of natural justice. He also drawn attention of this Court towards the photostat copies of postal receipts, A/D card in support of claim of non-service of the copy of the stay application.
At the beginning of the hearing learned advocate appearing for the opposite party raised a preliminary objection that in view Section 21(b) of the Consumer Protection Act, 1986 this Court has no jurisdiction to entertain a revision under Article 227 of the Constitution of India and according to him the remedy lies only before the National Forum under the said Act. But subsequently, in course of hearing, he frankly admitted that there is no absolute bar in entertaining application under Article 227 of the Constitution of India but it can only be exercised in exceptional cases. According to him this petitioner after receipt of the notice of hearing of the stay application duly appeared before the said Forum and contested the application and the impugned order was passed after contested hearing and there was no illegality or 4 irregularity of the same and as such the instant revision is liable to be rejected. In support of his contention he relied upon the decisions in the matter of The Oriental Insurance Company Ltd. Vs. M/s. Vikrant Refrigeration (Pvt.) Ltd. And Ors. reported in 2012(3) CLJ (Cal) 410 and in the matter of Mool Chand Yadav and Anr. Vs. Raza Buland Sugar Company Limited, Rampur and Ors. reported in (1982) 3 SCC 484.
In reply the learned advocate for the petitioner submitted that there is no absolute bar in entertaining revision under Article 227 of the Constitution of India despite the existence of alternative remedy and the High Court can exercise the supervisory jurisdiction in appropriate cases. In support of his contention he relied upon the judgment and order dated January 20, 2014 passed in the matter of L and T Finance Ltd. Vs. Anup Kumar Bera and Another.(In re: C.O. No. 3020 of 2012) and also the judgment and order dated August 22, 2016 passed in the matter of Tej Bahadur Thapa Vs. Branch Manager of District Central Co-operative Bank Ltd. and Anr. (In re: C.O. No. 2587 of 2010).
Upon hearing the respective counsels and after going through the decisions relied by them, it is apparent that power of the High Court under Article 227 of the Constitution of India has not been taken away despite of existence of alternative remedy in the Consumer Protection Act and the High Court can exercise the supervisory jurisdiction in appropriate cases. 5
In the case at hand, opposite party has already preferred an appeal before the State Consumer Disputes Redressal Commission, West Bengal against the order passed by the District Consumer Disputes Redressal Forum, Howrah which was duly intimated to the petitioner by SMS (Annexture-P7) which the petitioner has also admitted in paragraph 12 of her application. From the text of the said SMS it is evident that date of filing of the appeal was July 12, 2016 and the date of hearing was fixed on July 15, 2016. The impugned order was passed on July 15, 2016. The dispute with regards to the signature appearing on the A/D card, absence of seal of the postal authority and non service of the copy of the stay application are questions of fact which can only be taken care by court of first instance. But from the impugned order it is apparent that the same was passed after hearing both parties and impugned order does not reflect that any such plea as to the non-service of the copy of stay application etc. was taken there on behalf of the petitioner. More so, when appeal is admitted, judicial approach requires that during pendency of the appeal the operation of an order having serious civil consequences must be suspended. Reference may be made to the decision of the Hon'ble Apex Court in the matter of Mool Chand Yadav and Anr. Vs. Raza Buland Sugar Company Limited, Rampur and Ors. (Supra). It appears from the order impugned that the hearing of the appeal is fixed on December 9, 2016 and the stay is till that date only. There appears no error apparent on the face of the 6 record which requires interference of this Court in the instant revision.
However, this court repose trust and hope on the said Forum that considering the issue involved and period spent in litigation it would make all endeavour to dispose of the same in accordance with law at the earliest after giving opportunity of hearing to the respective parties.
With these observation, this revisional application is disposed of. However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, to be given to the parties on priority basis upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.)