1. BOTH these appeals have been listed on our today''s Board for admission hearing. Respondents are present along with their Advocates.
2. WE are proceeding to dispose of both of these appeals at the stage of their admission itself on hearing the learned Advocates for the parties as above and on perusal of the material available in the appeal paper books with common judgment since appellant is common in both the matters and subject matter of both the disputes as also the nature of grievances made by the complainants are common.
At the outset, we wish to clarify that we are not adverted to the factual aspects as involved therein. For that matter merits or demerits of the issues arising therein. This is to because, we think it appropriate that in interest of justice matters should go back to the District Forum, Thane for consideration afresh and opportunity be provided to the O.P.-appellant to defend the disputes by filing the written statements, etc.
The orders impugned in both these appeals are dated 14th July, 2004. (For brevity''s sake appellant who is org. O.P. is hereinafter referred to as ''Builder'' and respondent who is org. complainant as ''Flat Purchaser'').
3. THE flat purchaser filed these disputes with various grievances against the builder.
After institution of the disputes, District Forum issued its processes under Section 13 of Consumer Protection Act,1986 upon the builder, which were duly served and O.P.-builder responded through his Advocate before the District Forum. However,written statements were not filed although time was granted by the District Forum for the purpose on the request of the Advocate.
4. IN paragraph 2 of the impugned order, District Forum has recorded and we reproduce the entire paragraph as to how the proceedings proceeded before the District Forum:
"2. Forum issued notice under Section 13(2) and also notice under Section 13(2)(B) to the O.P. Said notices are duly served on the O.P. Accordingly O.P. has appeared through the Advocate on 5.6.2004 and 19.6.2004. O.P. failed to file the written version and say an interim orders passed on Ex. 5 on 23.3.2004. Evidence led by the complainant remained unchallenged. However, on the date of argument i.e., on 14.7.2004, Advocate Smt. Pradhan was present but she failed to take any steps. While Advocate for the complainant was arguing she was present after that she requested Hon''ble Forum to wait upto 12 O''clock and went away. Accordingly Forum waited upto 12.50 but she did not turn up, hence we have diefeted declared the order in open Court by giving following reasonings. We hold that sufficient opportunity is given to O.P. and as per provision of Consumer Protection Act, 1986 we have to dispose of the complaint within 90 days as such matter is proceeded further."
It would thus be noticed that O.P.-builders have taken steps to engage the Advocate to represent them before the District Forum and it was expected that when the legal man was on the scene, the proper steps within the stipulated period should have been taken to prosecute and defend the complaints. It is obvious that the same was not done.
It is well settled position of the law as also enunciated by the Supreme Court that any lapse on the part of the Advocate, litigants should not be suffered and also for the said considerations, we are inclined to provide an opportunity to the builders-O.P. to defend the complaints and with that view, we think it appropriate to remand the matters to the District Forum for consideration afresh on merits.
5. THE guidelines in that behalf will be indicated in the operative clauses of the order. We are conscious of the fact that the inconvenience is caused to the consumer-complainant and we propose to adequately compensate them by awarding cost as will be indicated in the operative clauses of the order: ORDER
1. Appeals are allowed and their impugned orders dated 14th July, 2004 are set aside. 2. Matters are remitted to the District Forum, Thane for consideration afresh on merits in accordance with the provisions of the law and the rules and on giving proper opportunities to the parties thereunder. 3. Appellant''s Advocate shall furnish copy of the order herein to the District Forum, Thane immediately. 4. By consent the date of appearance before the District Forum, Thane by parties is fixed on 17.12.2004 on which date the parties shall ensure their appearances before the District Forum without fail and seek the directions with regard to the fixation of date of hearing. 5. We are providing opportunity to the O.Ps. to file the written statements along with affidavit in support thereof and list of documents before the District Forum on 17.12.2004, copy whereof shall be furnished to the complainants by the same date. 6. Complainants to file rejoinder, if so desire, before the District Forum on 31.12.2004 and copy thereof shall be furnished to the O.Ps. by the same date. 7. It is made clear and distinctly understood to the parties that no further notices for appearance will be required to be issued by the District Forum to the parties. 8. THE District Forum shall proceed to dispose of the complaints totally uninfluenced by its earlier findings or any observations of ours in the judgment herein concerning the merits of the matters treating the same as our prima facie views and observations thereof. 9. District Forum to ensure expeditious disposal of the matters after remand. 10. As far as these appeals are concerned, appellant-builders shall pay cost to each of the complainant quantified at Rs. 1,500/-. 11. Office shall furnish copies of the order to the parties.
Appeals allowed.
