State Consumer Disputes Redressal Commission
T.P.Madhavan vs M/S.A.Square Housing Development ... on 8 January, 2015
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : THIRU.A.K.ANNAMALAI PRESIDING JUDICIAL MEMBER
TMT.P.BAKIYAVATHI MEMBER R.P.NO.32/2014 (As against the order in CC.38/2013 on the file of DCDRF, Chennai (North) DATED THIS THE 8th DAY OF JANUARY 2015
1. T.P.Madhavan
2. Mrs.Vasanthi Madhavan, A-3, Sai Raghuvir Apartments, No.120, (Old No.113), Habbibullah Road, M/s.R.Parthasarathi (Opp.Karnataka Sangha), Counsel for Petitioners / T.Nagar, Chennai 600 017. Complainants
-vs-
M/s.A.Square Housing Development P.Ltd, Represented by Director, Mr.Aashish Kumar Surana, Suraj Kunj, Respondent / Opposite party No.8, Rutland Gate, 5th Street, Nungambakkam, Chennai 600 006.
The Revision petitioner filed a petition in CC.38/2013 before the District Forum, Chennai (North) praying to grant interim stay in C.C.38/2013.
The Revision petition coming before us for final hearing on 12.12.2014, and heard the arguments on the side of the petitioners, and perused the records of the District Forum and this commission passed the following order :
A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER The complainants are the Revision petitioner.
2. The Revision petitioner praying for to stay the proceedings in CC.No.38/2013 before the District Forum, Chennai (North) till the disposal of Revision against the impugned order passed in CMP.201/2013 dated 4.4.2014.
3. The Revision petitioner contended in their petition and affidavit that they have filed the complaint against the respondent / opposite party for deficiency in service regarding the construction and the complaint is pending in CC.No.38/2013 before the District Forum, Chennai (North) and during the process and enquiry when the matter was posted for filing written version and appearance of Respondent / Opposite party, since they failed to appear and not filed their written version they were set exparte on 11.9.2013 and the matter was posted for orders after filing the written arguments of the complainant on 15.11.2013. In the meanwhile the respondent / opposite party have filed their petitions to set aside the exparte order and the petition in CMP 201/2013 to condone the delay in filing to set aside petition which was allowed on payment of cost of Rs.250/- to the Respondent / complainant and since the same was not received by the complainants as refused and the petition was allowed on 4.4.2014 by the impugned order. The petitioner contended that the District Forum has no power to review or set aside its own order as per the reported judgment (2011) 9 SCC 541 Supreme Court in the case of Rajeev Hitendra Pathak & Others Vs-Kashinath Karekar & Ohters and in this case already delay of 34 days in filing that petition was made and reopen petition also filed which are pending at that time and those petitions are not entertainable and in order to dispose the matter against the impugned order in CMP.201/2013 the proceedings in CC.No.38/2013 are to be stayed.
4. The Respondent / opposite party vehemently opposed the revision and stated that the District Forum has passed orders in the pending matter and legally the orders are sustainable and thereby the prayer of the petitioners need not be considered.
5. We have considered both sides contentions and averments and the materials placed before us and already we have passed an interim stay in CMP.249/2014 in this Revision petition dated 9.9.2014 pending final hearing in this revision for want of entire records and since we have received the entire records and on perusal of the records the following facts are noticed. The Respondent / opposite party already filed a CMP.69/2014 to re-open the case in order to pray for to set aside the exparte order passed on 11.9.2013 and another petition to set aside exparte order passed on 11.9.2013 which was not numbered by the District Forum and the present disputed petition in CMP.201/2013 on 14.9.2013 praying for to condone the delay of 34 days in order to present the set aside petition alone was entertained and allowed on costs and since the cost was sent to the complainant was refused to receive and thereupon the District Forum allowed the petition to condone the delay against which the revision was filed. The District forum even though numbered the reopen petition in CMP.69/2013 and allowing the same which is kept pending for filing counter of Respondent / complainant on 17.9.2014 without having subsequent proceedings allowed the petition for condone the delay which was filed on 14.11.2013 wrongly mentioned in the index dated as 14.9.2013 and also petition filed on 14.11.2013 praying to set aside without numbering kept pending probably to take it cognizance after allowing the delay condonation petition in CMP.201/2013 against which the impugned order was passed. Now the Learned counsel for the revision petitioner contended that when once the District Forum passed an exparte order on 11.9.2013 it has no power to set aside or to review his own order as per the ruling reported in (2011) 9 SCC 541 in the case of Rajeev Hitendra Pathak & Others vs- Kashinath Karekar & Others and the petition filed by the opposite party is not maintainable and liable to be dismissed by allowing the revision petition even though the same was to condone delay when the main petition filed to set aside exparte order itself not maintainable, the petition for delay to condone for the same also not maintainable30. The learned counsel for the respondent / opposite party contended that though the main petition is not yet heard and order was not passed and only the petition in condone the delay for filing the same was allowed and since the complaint enquiry was not terminated finally, the petition filed by the Respondent /opposite parties are well maintainable and the ruling relied upon is not applicable in such case. On perusal of the District Forum records in the proceedings of the enquiry of the complaint on 11.9.2013 which was recorded as written version not filed inspite of several adjournments opposite parties set exparte. WA of complainant by 27.09.2013 was posted and subsequently on 27.9.2013 written arguments of complainant filed and to be treated as oral arguments and posted for order on 15.11.2013 since on 15.11.2013 declared holiday and the matter was posted for orders adjourned to 10.1.2014. On 10.1.2014 it is recorded as follows: petition to condone the delay, re-open, setaside the exparte order written version filed by the opposite parties on 14.11.2013.CMP.201/2013 is pending. Call on 11.2.2014. From these adjudications it is found that when the matter was reserved for orders immediately on 14.11.2013 petitions were filed by the opposite parties for re-open, condone delay to file set aside exparte order and petition to set exparte along with written version were all filed which was came to be noted by the District Forum only on 10.1.2014 adjudication and in those circumstances the District Forum had taken cognizance of the petitions pending and thereby the matter was being adjourned and allowed CMP.201/2013 to condone delay alone was allowed. Since the rulings relied upon by the complainant reported in (2011) 9 SCC 541 is applicable, in our opinion only such cases in which a final disposal was given and the matters ended with a finality which cannot be set aside or reviewed its own order by the District Forum or State Commission but not in cases of pending proceedings like one before us in this case. In this case since the modified order is only for allowing the petition to condone the delay of 34 days in filing the set aside exparte order petition dated 11.9.2013 and the petition is yet to be considered by the District Forum on merits in view of the adjudication as on 11.9.2013 reveals that inspite of several adjournments given the written version not filed (nearly about 119 days) and thereby the District Forum made them exparte on that date now for which a set aside petition is pending enquiry after condoning the delay even though the delay petition itself is questioned by the revision petitioner since the District Forum allowed the petition whether it is right or wrong and no order was passed at this stage in set aside the exparte order petition, we are of the view that both parties are entitled to agitate before the District Forum for the same in the pending petition yet to be numbered and the District Forum to pass an order after hearing both sides. For this purpose we have to give directions to the District Forum to close the reopen petition pending in CMP.69/2013 in which there was no adjudication after 17.9.2014 which is to be closed as infractuous since already the delay condone petition was entertained and also numbered the set aside petition filed on 14.11.2013 and to proceed with the same for enquiry on receiving counter from the complainant / respondents and after hearing arguments on both sides on merits the District Forum to pass order and to proceed the matter on receiving back of records from this commission immediately and to dispose of the set aside petition within 2 months from the date of receipt of records.
With this directions the R.P. is disposed of. No order as to costs.
In the result, the R.P. is disposed of with the following directions :
Both parties are entitled to agitate before the District Forum in the pending petition filed on 14.11.2013 yet to be numbered for the petition to set aside exparte order dated 11.09.2013 and the District Forum to pass an order after hearing both sides. For this purpose we are giving directions to the District Forum to close the reopen petition pending in CMP.69/2013 in which there was no adjudication from 17.9.2014 to be closed as infractuous since already the delay condone petition was entertained and also number the petition to set aside order dated 11.09.2013 filed on 14.11.2013 and to proceed with the same for enquiry on receiving counter from the complainants / respondents and after hearing arguments on both sides on merits and to proceed the matter after receiving back of records from this commission immediately and to dispose of the set aside petition within 2 months from the date of receipt of records. With these directions the R.P. is disposed of. No order as to costs.
P.BAKIYAVATHI A.K.ANNAMALAI MEMBER PRESIDING JUDICIAL MEMBER