The brief facts of the complaints are that they booked one flat on the 3rd floor, East-south corner measuring about 1481 sq. ft. super built up area for a consideration of Rs.60,00,000/- (Rupees Sixty Lakh) only along with one car parking space in the ground floor East-south corner measuring about 150 sq. ft. at a consideration of Rs.3,00,000/- (Rupees Three Lakh) only by virtue of agreement for sale dated 22.06.2018 executed between the complainants and the opposite parties. Thereafter, on payment of full consideration amount of the flat and car parking space, the opposite party no. 1 handed over the possession of the flat and deed of conveyance dated 21.08.2018 was executed but the opposite party no.1 has not provided the completion certificate, possession letter and car parking space to the complainant. Therefore, the opposite parties are liable for deficiency in service. Hence this case.
The opposite party nos. 2 & 3 appeared in this case and filed written version.
Opposite party no. 1 has not appeared in spite of service of notice. As such, the case was fixed ex-parte as against opposite party 1.
The opposite party nos. 2 & 3 stated that as per agreement dated 11.12.2013 and supplementary agreement dated 25.07.2016 between the land owners i.e. opposite party nos. 2 & 3 and developer opposite party no. 1, the entire first floor of the building allocated in favour of them along with one car parking space measuring about 120 sq. ft. in the ground floor exclusively for the opposite party no. 2. The complainant entered into an agreement with opposite party no. 1 in respect of the allocated portion of opposite party no. 1 as per agreement dated 11.12.2013 and supplementary agreement dated 25.07.2016. So, the opposite party nos. 2 & 3 are not necessary parties in this case.
Points for decision:
- Are the complainants consumers in terms of Consumer Protection Act, 2019?
- Have the consumers any cause of action to file the case?
- Are the complainants entitled to any relief as prayed for?
Decision with reasons :
Point nos. 1, 2 & 3
All the above points are taken up together for consideration and discussion.
In order to prove the case, the complainants instead of submitting evidence on affidavit preferred to file a petition dated 26.10.2021 supported by affidavit on following averment in paragraph of the petition :-
“3. That on 26.07.2021 the case is fixed for evidence by the complainants. Your petitioner have filed this case with all supporting documents which have been properly affirm and those papers of document will be considered and treated as an affidavit of evidence. So, in this situation your petitioners are not willing to file further evidence before this Commission.”
It is prayed by the complainants by filing the petition dated 26.10.2021 to allow the Complaint Application and xerox copy of documents filed at the time of institution of the case to consider as evidence on affidavit.
Section 38(9)(b)&(c) of the Consumer Protection Act, 2019 prescribes the procedure of evidence to be given by the parties in a case filed under the Act. The above mentioned section read as follows :-
“(9) For the purpose 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 (5 of 1908) while trying a suit in respect of the following matters, namely—
- ………………………………………………………………………….
- requiring the discovery and production of any document or other material object as evidence;
- receiving of evidence on affidavits;
- ………………………………………………………………………….
- ………………………………………………………………………..
- …………………………………………………………………………… ”
Therefore, it is crystal clear that a party to a complaint case is required to submit evidence on affidavit as per order XVIII rule 4 under the Code of Civil Procedure.
It is settled principal of law that a pleading cannot be treated as evidence. Any order passed beyond the scope of statute cannot have any binding effect.
The entire case of the complainant is based on Agreement for Sale dated 22.06.2018 and Deed of Conveyance dated 21.08.2018. The original agreement for sale dated 22.06.2018 and Deed of Conveyance dated 21.08.2018 were never produced as evidence during the course of hearing by the complainant. Moreover, the complainant did not give any evidence regarding the contents of Deed of Conveyance dated 21.08.2018 or Agreement for Sale dated 22.06.2018. The foundation of the case is lost for withdrawing the best documentary evidence by the complainant.
The burden of proof is on the complainant to prove the complaint case.
The complainants have miserably failed to prove his case by submitting any cogent evidence on affidavit. There is absolutely no evidence on record to prove the case of the complainants as such the complainants are not entitled to any relief claimed for.
Having considered the discussion made above, all three points are decided against the complainant.
Therefore, the case fails.
Hence, it is
O R D E R E D
that the case be and the same is dismissed on contest against opposite party nos. 2 and 3 and ex-parte against the opposite party no. 1 with cost.
