HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This Interlocutory Application has been filed by the complainant for appointment of a Commissioner to visit the locale and for filing his report in respect of the said inspection.

2. The facts, to be taken notice of for the disposal of the present Interlocutory Application are that the complainant had instituted the complaint case against the respondents praying for the following reliefs :-

“i) An order for directing the all opposite parties jointly or severally to execute and register the deed of conveyance in respect of the flat of the petitioner more fully and specifically described in schedule below in favour of the petitioner. Failing which the deed of conveyance may be registered through court / forum ; and

ii) An order for directing the all opposite parties jointly or severally to bear / pay the enhanced cost of registration as to be determined by the Ld. forum; and

iii) An order for directing the all opposite parties jointly or severally to pay Rs.5,000,00/- (Five Lakhs) only as compensation for harassment, mental agony, and also for negligent act and conducting the deficiency in service ; and

iv) An order for directing the all opposite parties jointly or severally to take the completion certificate with regard to said multistoried building including all flats as per sanctioned plan from the local Municipality and to hand over the same to the petitioner; and

v) An order for directing the all opposite parties jointly or severally to pay the entire tax and rent till the date of receiving of the completion certificate from the local Municipality; and

vi) All cost of the proceeding; and

vii) All other relief / reliefs as entitled to get in law and equity.”

3. Notice was duly served upon the opposite parties. On receiving the notice, the opposite parties No. 1 & 2 entered appearance and are contesting the case by filing written version. The opposite parties No. 3 to 8 did not turn up to contest the case. As such, the complaint case was proceeded ex parte against them.

4. The complainant and the opposite parties No. 1 & 2 have adduced their evidence in support of their case. The evidence of the opposite party Nos. 1 & 2 was closed on 12.09.2022.

5. After filing evidence on affidavit by the opposite party Nos. 1 & 2, the complainant has filed the instant application under hearing.

6. The application was not opposed by the opposite party No. 1 by filing any written objection.

7. We have heard the Learned Advocate appearing for the complainant and have carefully gone through the records of the case including the present application.

8. It is submitted by the Learned Advocate appearing for the complainant that for fair and proper adjudication of this case it is necessary to come out and ascertaining the actual area of the suit property before this Commission, otherwise, it would be very inconvenient to adjudicate the matter properly. He has further submitted that if the application for local inspection is allowed by this Commission, the same will help the Learned Commission to adjudicate the matter in dispute properly. He has further submitted that Learned Commission has every jurisdiction to appoint a civil engineer for the purpose of holding local inspection in respect of the property as described in the schedule below. So, the application should be allowed for the ends of justice.

9. On due consideration of the submission made by the complainant and after careful perusal of the record, we find that the application for appointment of a Commissioner has been filed after filing evidence by both the parties and the case before this Commission is yet to proceed.

10. Sub section 9 of section 38 of the Consumer Protection Act, 2019 runs as follows :-

“..........for the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely :-

a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

b) requiring the discovery and production of any document or other material object as evidence;

c) receiving of evidence on affidavits;

d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory for from any other relevant source;

e) issuing of commissions for the examination of any witness, or document; and

f) any other matter which may be prescribed by the Central Government.”

11. From the above it is clear that the Commission shall have all powers as are vested in Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the above mentioned matters and all the provisions of the Code of Civil Procedure are not applicable.

12. The act provides for the summary disposal of the complaint within the time frame mentioned therein. All the complaints where the sample alleged defective goods is not sent to the appropriate laboratory are to be decided within three months whereas the complaints, in which the sample of defective goods are so sent to the appropriate laboratory, are to be decided within five months. If the Commission are to resort to the appointment of a Commissioner for local inspection, it will certainly result in the delay of disposal of the complaints and it appears that keeping in view of the above position, such a power of the civil court was not conferred upon the Commission by the legislation. The Commission can order for appointment of an expert for local inspection where noting down of physical features by competent person is essential for proper adjudication of the dispute and also in the interest of justice. But this is not the case here.

13. From the application of the complainant, it becomes very much clear that in fact he wants to collect evidence through the agency of the Commissioner which is not permissible in law. The facts which he wants to prove by appointing a Commissioner can be proved otherwise also.

14. In view of our above discussion, we conclude that the local inspection application filed by the complainant is not maintainable in law and is liable to be rejected.

15. In the result, the application for appointment of a  Commissioner to visit locale filed by the complainant is rejected with no order as to costs.

16. The application is, thus, disposed of accordingly.

17. To  30.06.2023 for final hearing.

18. BNA to be exchanged in the meantime.