HON’BLE MR. JUSTICE ISHAN CHANDRA DAS,PRESIDENT 

             This Revisional Application has been filed questioning propriety of the Order no.17 dated 6.9.2017 passed by the Ld. DCDRF Kolkata –Unit III(South) in C.C. 16 of 2017 where the ld. Forum concerned while disposing of the application being M.A. 27 of 2017 rejected the prayer of the Complainant/Respondents for appointment of an Engineer Commissioner.

          The background of the instant application was that the complainant proposed to purchase a flat measuring 1700 sq.ft. super built up area consisting of three bed rooms , one dining cum drawing , one kitchen, three bath and privies, one Balcony lying and situated on the second floor of G+4 storied building along with one Car Parking space measuring 135 Sq.ft. together with undivided proportionate share of land underneath the said building. The Complainant of C.C. 16 of 2017, pending before the Ld. DCDRF, concerned is claiming refund of Rs.16,21,211/- (Rupees Sixteen lakhs twenty one thousand two hundred eleven) for shortage of  area of the flat given to him,  for want of other amenities attached thereto and for assessment of the claim he wanted to investigate the flat and other areas, prayed for appointment of an Engineer Commissioner for ascertainment  of the points as per schedule of the Petition under Order 26 Rule 9 of the C.P.Code read with Section 151 of the C.P.C.

          Ld. Trial Forum upon consideration of the prayer of the Complainant and the objections raised by the OP thereof rejected the same and prompted the Complainant to file the Revisional Application before the State Commission.

          Now the point for consideration is whether the ld. Trial Forum was justified in rejecting the prayer for appointing an Engineer Commissioner under the provisions of the Order 26 Rule 9 of the C.P.Code. Ld. Counsel appearing for the Revisionist in course of hearing submitted that in view of Section 13(4) of the Consumer Protection Act 1986 , the Forum concerned has  power to appoint of an Engineer Commissioner to determine the question in controversy between the parties. In support of his contention he relied on the decision of the Hon’ble National Commission in M/s Sethi Housing (India) Pvt. Ltd. And Ors –Vs- M/s Jml Motors Pvt.Ltd. reported in (2015)2 CPR NC 1999 and pointed out that a Consumer Forum is competent to requisition the report of the Expert. Further pointing out the provisions in this regard he submitted that if an Engineer is appointed to inspect a property and report the defects/deficiencies, found therein, such an order would be well within the competence of the Consumer Forum.

          Such proposition was strongly opposed by the ld. Counter part, who submitted that the Provisions of Section 13(4) being clear and mandatory do not allow the Consumer Forum to have any departure therefrom taking a liberal approach over the issue. In this context he relied on a decision of the Hon’ble Andhra Pradesh High Court in M/s Sivashakthi Builders, Hyderabad & Anr. –Vs- A.P.State Consumer Disputes Redressed Commission & Ors reported in A.I.R. 2009 Andhra Pradesh 84 & prayed for rejection of this Revisional Application.

          Frankly speaking, the question of appointment of Engineer Commissioner, whether Architect or Engineer in terms of Order 26 Rule 9 of the Code of Civil Procedure is concerned, the Consumer Protection Act  is totally silent  and ld. Trial Forum in the order impugned taking into consideration this aspect rejected the application for such appointment. In this context we may take notice of a guiding principle propounded by the Hon’ble National Commission in M/s Sethi (India) Pvt. Ltd. And Ors (supra) where the Hon’ble National Commission held the following –

      “Therefore, while setting aside the impugned order, we grant liberty to the State Commission to appoint a qualified Engineer/or Architect to carry out investigation followed by tests/analysis if felt necessary by him, and to report the physical features of the subject flat, including as to whether one or more of the works mentioned in the complaint are still pending execution/completion or not”

Since the complainant has prayed for ascertainment of the value of the shortage in area  of the flat and other accessories attached to the said flat and Car parking space etc we are taking into account the verdict of the Hon’ble National Commission, set aside the order impugned and direct the ld.DCDRF Kolkata- Unit III (South) to appoint an Engineer  Commissioner for investigation of the property as per schedule of the petition under Order 26 Rule 9 of the Code of Civil Procedure filed before it by the Complainant for determining the question in controversy between the parties.

          With this observations and directions the Revision Application stands disposed of . No costs.

           Fix 21.6.2018 for appearance of the parties before Ld. DCDRF, Kolkata Unit III (South).