State Consumer Disputes Redressal Commission
Viman Kumar vs Improvement Trust Amritsar on 6 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.243 of 2016
Date of institution : 28.03.2016
Date of decision : 06.05.2016
1. Viman Kumar son of Late Bhajan Lal, resident of 1667, Calle
Del Ray Livermore CA 94551 USA, through his Special Power
of Attorney, Preet Sharad, resident of 14, Friends Colony,
Taylor Road, Amritsar.
2. Phulwinder Singh son of Sh. Jagmohan Singh, resident of 129-
A, Race Course Road, Amritsar.
....Appellants/Complainants
Versus
1. Amritsar Improvement Trust, having its Office at Ranjit Avenue,
Amritsar, through its Chairman.
2. Arvind Sharma, E.O., Amritsar Improvement Trust, having its
Office at Ranjit Avenue, Amritsar.
....Respondents/Opposite Parties
First Appeal against the order dated
04.03.2016 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellants : Shri K.P. Singh, Advocate
For the respondents : Shri Prem Kumar, Advocate.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/complainants have preferred this appeal against the order dated 04.03.2016 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), vide First Appeal No.243 of 2016 2 which the complaint filed by them, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was dismissed in default for want of prosecution, on account of their continuous absence on four dates of hearing. The grounds, on which that order has been challenged, are detailed in the memorandum of appeal. As per those grounds, counsel for the respondents/opposite parties appeared before the District Forum on 09.09.2015 and took five adjournments from 01.10.2015 to 15.12.2015 for filing of written version. On 15.12.2015, instead of filing the written version, he filed an application for dismissal of the complaint and their counsel submitted reply thereto on 19.01.2016, without any delay and thereafter, the complaint was adjourned to 03.02.2016 for arguments. The arguments were advanced by the counsel for the parties on that date and thereafter the application was adjourned to 16.02.2016 for orders. On that date, their counsel went to the District Forum for noting the date in the Lunch Time and he noted down "26.02.2016", as the next date of hearing. On that day, that counsel sent his clerk; namely, Inderjit Singh, for noting down the date and that clerk noted down the next date as 07.03.2016. When on that date, that counsel, accompanied by that clerk, went to the District Forum to enquire about the status of the complaint, he was astonished, when he came to know that the complaint had already been dismissed in default on 04.03.2016. Their presence was not necessary on each and every date of hearing and as per the settled law, the complaint should have been decided on merits, after giving opportunity to the parties to present their respective cases.
First Appeal No.243 of 2016 3
2. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
3. At the time of arguments, counsel for the appellants/complainants reiterated the facts, as stated in the grounds of appeal, and submitted that there is sufficient cause for setting aside the impugned order; as the District Forum had heard arguments on the application filed by the opposite parties for dismissal of the complaint and had adjourned the case for orders and it has been wrongly mentioned in the impugned order that the complaint itself was being adjourned repeatedly and the complainants had not been appearing. Moreover, the interest of justice requires that the complaint be decided on merits, by giving full opportunity to the complainants to present their case before the District Forum.
4. On the other hand, it was submitted by the learned counsel for the opposite parties that fair records were prepared by the District Forum and the complainants failed to appear before the District Forum continuously for four consecutive dates and, as such, the District Forum was justified in dismissing the complaint for want of prosecution. There is no ground for allowing this appeal.
5. The records of the District Forum were called for and were perused minutely. After the complaint was admitted, counsel for the opposite parties appeared before the District Forum on 09.09.2015 and the complaint was adjourned to 01.10.2015 for filing written version. The same was not filed on that date and for the same purpose, the complaint was adjourned to 19.10.2015, then to First Appeal No.243 of 2016 4 05.11.2015, then to 27.11.2015 and then to 15.12.2015. As per the mandate of the Consumer Protection Act, the opposite parties were not entitled to more than 45 days for filing their written version, but in violation thereof the District Forum adjourned the complaint for filing of the written version for more than 45 days. Instead of filing the written version, the opposite parties filed application for dismissal of the complaint, on the ground that the same was not maintainable and no cause of action had arisen to the complainants to file the complaint. The reply to that application was filed on 19.01.2016 and the complaint was adjourned for consideration of that application on 03.02.2016 and then to 16.02.2016. On that date and on the subsequent dates, none appeared for the complainants and ultimately the complaint was dismissed in default for want of prosecution on 04.03.2016.
6. In support of the facts taken up in the grounds of appeal, the complainants have annexed the photostat copy of the cover-file, as Annexure A-2. A perusal thereof shows that the counsel for the complainants had noted down the date "03.02.2016" as consideration of the application filed for dismissal of the complaint and further noted the date "16.02.2016" for orders on that application. In support of the facts stated in the grounds of appeal, affidavit of Inderjit Singh, Clerk of the counsel for the complainant, has been filed and the same has not been controverted by the opposite parties, by filing a counter affidavit. The grounds, so taken up by the complainants in the memorandum of appeal, appear to be correct. It stands proved therefrom that they had good cause for not First Appeal No.243 of 2016 5 appearing before the District Forum on the date fixed and that is a ground for setting aside the impugned order. Moreover, the Act has been enacted for better protection of the interest of the consumer and if two view are possible, then the view favourable to the consumer is to be adopted. The law also requires that the consumer disputes should be decided on merits and the dismissal of the complaints in default should be avoided.
7. In view of the above discussion, the appeal is allowed and the order dated 04.03.2016 passed by the District Forum is set aside. The complaint filed by the complainants is ordered to be restored at its original number and the District Forum is directed to proceed with the same, in accordance with the procedure laid down in the Act.
8. Parties are directed to appear before the District Forum on 03.06.2016. Its records be returned immediately.
9. The arguments in this case were heard on 29.04.2016 and the order was reserved. Now, the order be communicated to the parties.
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER May 06, 2016.
(Gurmeet S)