Delhi

StateCommission

RP/131/2016

M/S OMAXE LTD. - Complainant(s)

Versus

KUSUM LATA - Opp.Party(s)

MUKTI BODH

17 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision :17.11.2016

Revision Petition No. 131/2016

 

(Arising out of the order dated 4.5.16 passed in Complaint Case No.393/15 passed by the District Consumer Dispute Redressal Forum-X, Qutab Institutional Area,  New Delhi.)

 

In the matter of

M/s. Omaxe Ltd.

Omaxe House

7, Local Shopping Centre

Kalkaji, New Delhi.

 

……Revisionist/Petitioner

 

 

Versus

 

 

Kusum Lata

W/o Sh. Karambr

R/o House No. 100,

Baprola Village

New Delhi-110043

…Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.         Whether reporters of local newspaper be allowed to see the            judgment?

2.         To be referred to the reporter or not?

 

 

 

 

 

 

 

Justice Veena Birbal, President

1.             By way of this petition challenge is made to order dated 4.5.16 whereby the opportunity to the petitioner herein i.e. OP-1 before the District Forum, to file written statement has been closed.
2.             The impugned order reads as under:-

            “4.5.16

            Present : Ld. Counsel for the Complainant.

                          None for the OP-1

                        Right to file w/s on behalf of OP-1 closed being beyond 45 days.       Notice to OP-2 not received back. Issue fresh notice to OP-2 to be taken         Dasti for 7.6.16.

•  

            Later on Sh. Devender Kumar appeared for OP-1 and wants to file the reply. The right to file reply stands closed. He has moved an application under Section 26 of the Consumer Protection Act as well under Order 7 rule 11 CPC with spare copy.”

3.             Ld. Counsel for the Petitioner/OP has submitted that petitioner/OP-1 had received the notice of complaint case No.393/15 on 26.1.16 wherein the petitioner/OP-1 was asked to appear  before the District Forum on the aforesaid date. It is submitted that on the said date the copy of the complaint was given to the petitioner/OP-1 and OP-2 was not yet served before the District Forum. The Ld. District Forum adjourn the matter on 4.5.16 for filing of written statement by OP-1 as well as for service on the other OP i.e. OP-2. It is stated that on 4.5.16, the petitioner/OP had appeared before the District Forum late. It is stated that by the time the petitioner/OP-1 had appeared before the Ld. District Forum, the right to file the written statement of petitioner/OP-1 was closed by noting that 45 days had already lapsed. It is stated that on the said date Counsel for petitioner/OP-1 had also taken written statement with him. It is stated that when the District Forum had itself given the date of 4.5.16 for filing the written statement, the District Forum should not have closed the right of petitioner/OP-1 of filing written statement. The Ld. Counsel for the petitioner/OP-1 has relied upon the judgment of the Hon’ble Supereme Court in case of Mr. Sheikh Salim Hazi Abdul v. Mr. Kumar & Ors. wherein it is held that a party can not be allowed to suffer if the court has committed a mistake.
4.             On the other hand Ld. Counsel for the respondent/complainant has submitted that the order passed by the Ld. District Forum is correct and the petition is liable to be dismissed.
5.             We have heard the submissions made and gone through the material on record.
6.             In the present case, perusal of the impugned order shows that the District Forum itself has adjourned the matter for filing of written statement on 4.5.16. On 4.5.16, petitioner/OP-1 appeared late before the District Forum. However, petitioner/OP-1 had taken written statement with it.
7.             For disposal of the present petition, it is necessary to reproduce the order dated 22.1.16 which reads as under:-

            “Present: Ld. Coulsel for the Complainant alongwith complainant.

              Sh. Devender Kr., Adv. Filed MOA on behalf of OP-1. Copy of complaint   given. Notice to OP-2 not received back. Issue fresh notice to OP-2. Put up      for w/s of OP-1 and service to OP-2 for 4.65.16.”

8.             As per aforesaid order Ld. District Forum itself has given opportunity to the petitioner/OP-1 and for service to OP-2 for 4.5.16. Reading the order, it is clear that the petitioner/OP-1 under the bonafide believe that the time is granted for filing written statement and the matter was adjourned for said purpose for 4.5.16. The aforesaid order passed by the Ld. District Forum specifically permitted to file written statement by 4.5.16.
9.             We may mention that the aforesaid order was not challenged by the respondent/complainant. The same has attained finality.
10.             Further it is settled law that for the mistake on the part of the Court, the party should not suffer. In the present case, maxim of equity, namely, actus curiae neminem gravabit – an act of court shall prejudice no man, shall also be applicable. Reliance is placed on the judgment of Shaikh Salim Hazi Abdul Khayumsab v. Kumar & Ors., 2005 (Supp-5) SCR 349.
11.             In the interest of justice, without this order being made precedent, we accept this petition and set aside the order dated 4.5.2016 and give an opportunity to petitioner/OP-1 to file written statement. The petitioner/OP-1 shall now file its written statement before the Ld. District Forum. Thereafter the District Forum shall proceed further in the matter in accordance with the law.
12.             The next date before the District Forum is stated to be 21.11.2016.
13.             On the said date, the petitioner/OP-1 shall appear before the District Forum and shall file its written statement and the District Forum shall take the same on record. Thereafter, the District Forum shall proceed further in the matter in accordance with the law.
14.             The revision petition stands allowed.
15.             A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum-X, Qutub Institutional Area, New Delhi.

            File be consigned to Record Room.

 (Justice Veena Birbal)

President

                                                              

 

(Salma Noor)

Member