State Consumer Disputes Redressal Commission
Md. Muslem Mia, S/O. Late Hazi Amber Ali ... vs 1. Director, Government Of Tripura, ... on 2 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Judgment of Appeal Case No.49/2013 & Revision case No.R.A. 07/2014 1. Appeal No.F.A-49/2013 Md. Muslem Mia, S/O. Late Hazi Amber Ali Bhuiya, Vill-Rangamatia, P.O-Khedabari, P.S-Sonamura, District-Sepahijala. . . . . Appellant. Vs 1. Director, Government of Tripura, P.O-Agartala, P.S-West Agartala, District-West Tripura. 2. Deputy Director, Director of Agriculture, P.O-Agartala, P.S-West Agartala, District-West Tripura. 3. Superintendent of Agriculture, Vill & P.O-Sonamura, P.S-Sonamura, District-Sepahijala. 4. In-Charge, Melaghar Cold Storage, Chandigarh, P.S-Melagarh, District-Sepahijala. . . . . Respondents. 2. REVISION CASE NO-R.A-07/2014. 1. Director, Government of Tripura, P.O-Agartala, P.S-West Agartala, District-West Tripura. 2. Deputy Director, Director of Agriculture, P.O-Agartala, P.S-West Agartala, District-West Tripura. 3. Superintendent of Agriculture, Vill & P.O-Sonamura, P.S-Sonamura, District-Sepahijala. 4. In-Charge, Melaghar Cold Storage, Chandigarh, P.S-Melagarh, District-Sepahijala. . . . . Petitioners. Vs Md. Muslem Mia, S/O. Late Hazi Amber Ali Bhuiya, Vill-Rangamatia, P.O-Khedabari, P.S-Sonamura, District-Sepahijala. . . . . Respondent. PRESENT : HONBLE MR.JUSTICE S.BAIDYA, PRESIDENT, STATE COMMISSION MR.H.CHAKRABORTY,IAS (Retd), MEMBER, STATE COMMISSION. For the appellant/complainant : Mr.P.K.Debnath,Adv. For the Respondents/Revisionists : Mr.D.Bhattacharjee,Adv. Date of Hearing : 28.03.2014. Date of delivery of judgment : 02.04.2014. J U D G M E N T
S.Baidya,J, This appeal filed under section 15 of the C.P.Act, 1986 on 11-09-2013 by the appellant Md. Muslem Mia is directed against the judgment dated 26.08.2013 passed by the Ld. District Forum, West Tripura, Agartala in complaint case being No.C.C.-54 of 2012 whereby the Ld. District Forum was pleased to dismiss the complaint case by the impugned judgment.
3. The revision case filed under section 17(1)(b) of the C.P.Act,1986 by the Director, Department of Agriculture, Govt. of Tripura and some others is directed against the order dated 18.12.2012 passed in C.C. 54/2012 whereby the Ld. District Forum, West Tripura, Agartala passed the said order to proceed exparte against the O.Ps in respect of the said complaint case as the O.Ps failed to submit written objection, in spite of getting time for thrice to file written objection and the revision case has been filed challenging the legality, propriety and justifiability of the said order.
4. The brief fact is that the appellant-complainant Md. Muslem Mia being a Kishan-Credit Card holder is consumer and he is earning his livelihood by employing himself in producing different types of vegetable in his agricultural land situated at Rangamati under Bardwal Mouja and availed of an agricultural loan amounting to Rs.1,40,000/- from the U.B.I. Bank, Sonamura Branch for the purpose of producing Tomatoes etc. That in the month of April, 2011 the complainant packaged the unripe Tomatoes in some plastic basket of cartoons for 32000 k.gs. after paying the necessary charges as consumer for storing the tomatoes as per the guideline of store In-Charge, respondent No-4 and accordingly, handed over the same to respondent No-4 who in turn stored the same in their cold storage after obtaining necessary charges for three weeks and the complainant was awaiting for taking delivery of the said tomatoes in good condition within the stipulated period, but he was instructed on 02.05.2011 and was compelled to take delivery of the said tomatoes in rotten condition before three weeks.
5. It is also stated that the appellant-complainant with labours used to attend the said cold storage every morning and picked out the rotten tomatoes which were more than one thousand k.g. and threw down the same outside the verandah of cold storage totalling 12000 k.gs. (approx) and in this way the appellant-complainant suffered a huge loss for causing damages to the tomatoes stored in the multi cold storage of the respondents.
6. It has also been stated that the Ld. District Forum opined that the complaint case is bad for non-joinder of the parties i.e. the State of Tripura has not been made as party to the complaint and ultimately dismissed the complaint case by the impugned judgment.
7. That being aggrieved by the impugned judgment the appellant has preferred the instant appeal alleging that the Ld. District Forum did not consider the pleadings and evidences adduced by the complainant and failed to appreciate the total loss suffered by the appellant-complainant due to the fault in the cold storage of the respondents and illegally and wrongly passed the impugned judgment dismissing the complaint case which is not sustainable in the eye of law and as such the same requires to be set aside and hence the appellant has preferred the instant appeal.
8. At the time of hearing the learned advocate for the appellant has filed the application praying for adding the State of Tripura as one of the O.Ps in the complaint petition under Order 1 Rule 10(2) of the C.P.C.
9. It has been narrated in the revision petition that the sole respondent Md. Muslem Mia filed the complaint under section 12 of the C.P.Act, 1986 claiming a sum of rupees five lakhs with interest causing deficiency, negligence and unfair trade practice in rendering their proper service and accordingly, the notice was issued upon the present petitioner and since the petitioners are the Govt. instrumentality, they have been provided with a counsel to defend their case and accordingly, they made contact with their newly appointed counsel who after receiving the briefs approached the Ld. District Forum for providing time to file a written objection, but the engaged law clerk of the learned advocate wrongly posted the case in a wrong date and it was detected on the day itself i.e. 18.12.2012 that the date was fixed for filing written objection and accordingly, on 18.12.2012 the Ld. District Forum declared that the case will proceed exparte against the present petitioners who are the O.Ps in the said complaint case. It is also stated that the mistake on the part of the advocates clerk was unintentional. It has also been alleged that if the exparte order dated 18.12.2012 is not vacated and the written objection is not accepted allowing the present petitioners to contest the said complaint case No. C.C.54 of 2012, the petitioners will be highly prejudiced and hence, the petitioners have filed the instant revision case.
10. From the cases of the parties and also after hearing the learned advocates of the parties, it appears to us that after passing of the order dated 18.12.2012 the Ld. District Forum proceeded with the said complaint case and ultimately dismissed the said complaint case by the impugned judgment dated 26.08.2013. It also appears that one of the grounds for dismissal of the said complaint case was defect of parties i.e. non-joinder of necessary party (State of Tripura). It is settled principle of law that no suit or just claim should be defeated for defect of parties. It is also settled principle of law that where there involves a shortcoming for defect of parties, opportunities must be given to the party to cure the defect by making a prayer for addition of necessary party. Furthermore, the defect of necessary party is a preliminary issue and that issue requires to be disposed of at the preliminary stage of the case. But in the instant case, the defect of party i.e. non-joinder of necessary party has been pointed out in the impugned judgment while dismissing the complaint case. The ends of justice also demands that even at the time of writing out the judgment, if it is found that suit or the case is going to be dismissed on the ground of non-joinder of necessary parties, the parties should be provided with reasonable opportunity to cure the said defects giving necessary direction in that regard. But in the instant case, it is found that the same was not done by the Ld. District Forum and, instead of that, dismissed the complaint case by the impugned judgment raising the defect that the complaint case is defective for non-joinder of necessary party i.e. the State of Tripura.
11. Now, the appellant who is the complainant in the said complaint case has come up before this Honble State Commission with the present application for addition of the State of Tripura as one of the O.Ps in the said complaint petition. In that view of the matter, it is found necessary that the application filed by the present appellant should be allowed. But it requires the amendment of the complaint petition, the issuance of notice upon the State of Tripura and if the State of Tripura enters appearance on receipt of the said notice, opportunity requires to be given for filing written objection. At the same time opportunities should also be given to the parties to adduce further evidences in support of their respective cases and for that purpose it is our considered view that the matter requires to be sent back on remand to the Ld. District Forum for the aforesaid purposes.
12. It is also our considered view that the laches on the part of the learned advocate or his law clerk no party should suffer for a fault not of his own. That being the position, we are inclined to give the petitioners of the revision case opportunity to file written objection in the said complaint case before the Ld. District Forum and also to adduce evidences in support of their case to be made out in the written objection and for that the impugned order dated 18.12.2012 passed in complaint case No.C.C.54 of 2012 which is under challenge in the revision case requires to be set aside.
13. We have made it clear that this State Commission have no entered into the merit of the cases of the parties. For effective adjudication of the matter in dispute between the parties the following directions are given.
(i) Both parties are directed to appear before the Ld. District Forum, West Tripura, Agartala on 17.04.2014 either in person or through their respective counsel.
(ii) The complainant-appellant is directed to file a similar application under Order 1 Rule 10(2) read with section 151 of the C.P.C. by 17.04.2014 after serving a copy of the same to the O.Ps.
(iii) Ld. District Forum shall consider and allow the said application, if filed within the stipulated time.
(iv) The Ld. District Forum shall cause the service of notice upon the added O.P. and also give opportunity of filing written objection by added O.P.
(v) The Ld. District Forum shall give reasonable opportunity to the petitioners of the revision case who are the O.Ps in the complaint case to file written objection against the complaint petition within the date fixed by it.
(vi) The Ld. District Forum shall provide opportunities to the parties to adduce evidences in support of their respective cases.
(vii) The Ld. District Forum shall dispose of the complaint case taking into consideration the evidences already on record and the evidences to be adduced by the parties after remand.
14. As the cases are going back on remand for fresh adjudication of the matter in dispute between the parties, the impugned order dated 18.12.2012 and the impugned judgment dated 26.08.2013 passed in case No.C.C. 54 of 2012 by the Ld. District Forum, West Tripura, Agartala are hereby set aside.
15. The appeal being No.49/2013 and the revision case being No.07/2014 are, accordingly, allowed, but without any order as to cost.
16. This common judgment kept with the record of F.A-49/2013 will also govern the R.A. 07/2014.
17. Let a copy of this judgment along with the record of complaint case being No.C.C.54/2012 be transmitted to the Ld. District Forum, West Tripura, Agartala forthwith for perusal and proceeding with the disposal of the complaint case afresh in the light of the directions given in the body of the judgment.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura