| Final Order / Judgement | BEFORE THE TELANGANS STATE CONSUMER DISPUTES REDRESSAL COIMMISSION: AT HYDERABAD R. P. No 7 of 2016 Against I.A. No. 377 of 2015 in CC No. 150 of 2015 District Forum III, Hyderabad Between: LIC Housing Finance Ltd Mythrivanam, Hyderabad .. Revision Petitioner/opposite party And Y. Poornima W/o K. Madan Kumar Reddy, Motinagar, Hyderabad .. Respondent/complainant Counsel for the Revision Petitioner : Mr.M. Eswara Prasad. Counsel for the Respondent : GPA holder of the respondent Coram : HON’BLE SRI JUSTICE B. N. RAO NALLA, PRESIDENT And Sri Patil Vithal Rao, Member Friday, the Sixteenth Day of September TWO THOUSAND SIXTEEN Oral order: ( Per Sri Patil Vithal Rao, Member) ******* - The Revision Petitioner herein is the opposite party and the respondent is the complainant in CC 150 of 2015 on the file of the District Forum III, Hyderabad.
- For the sake of convenience, let us refer the parties before us with the same nomenclature as in CC 150 of 2015.
- The complainant has filed CC 150 of 2015 alleging deficiency in service and unfair trade practice on the part of the opposite party in a housing loan transaction between them.
- The opposite party resisted the said claim by way of filing written version on various grounds including the point of limitation. It had specifically took defence that the complainant, in fact, filed CC 461 of 2013 on earlier occasion and withdrew the same and that by suppressing the said fact had filed the present complaint on the same cause of action and as such it was not maintainable as barred by limitation.
- In the above said complaint, the opposite party filed IA 178 of 2015 U/s 151 of CPC to decide the case on the above noted preliminary point of limitation. As seen from the record, the complainant has filed her counter in it and the counsel for the opposite party also submitted his arguments on 06.08.2015 and that thereafter the petition was adjourned to 27.08.2015 for arguments of the respondent/ complainant. Again, on 27.08.2015, the petition was adjourned to 11.09.2015. Without hearing the arguments of the counsel for the respondent, the petition was adjourned from time to time till 17.02.2016 without disposing off it but tagging with the main case.
- It seems the main case, i.e. CC 150 of 2015 was proceeded with enquiry, in which, the complainant had adduced her entire evidence. When the case was posted for evidence of the opposite party and adjourned from time to time, it seems, the opposite party did not adduce any evidence till 29.10.2015 and that as such, on the said date, it was adjourned to 23.11.2015 on payment of costs of Rs.300/-. On the said date, as the opposite party was called absent and there was no representation on its behalf, the opposite party was set exparte and the case was adjourned to 08.12.2015 for written arguments of the complainant. Thereafter, when the case was adjourned to 30.12.2015, the opposite party filed IA 377 of 2015 U/s. 13(3) of the Consumer Protection Act, 1986 to set aside the exparte order dated 23.11.2015. After perusing the petition and the counter of the complainant, the District Forum allowed IA 377 of 2015 on payment of costs of Rs.500/- and posted it to 10.03.2016 for compliance. This order is under challenge in the present Revision Petition.
- The contention of the Revision Petitioner is that their counsel was under the impression that the District Forum was to dispose of IA 178 of 2015 and that as such it did not adduce any evidence in defence but waiting for the said order regarding maintainability of the case on the point of limitation. The learned counsel for the Revision petitioner has specifically contended that having heard him in IA 178 of 2015, without disposing off it on hearing the arguments of the counsel for the respondent, the District Forum adjourned the same from time to time and set the Revision Petitioner ( opposite party) herein exparte and that the said exparte order was, no doubt, set aside but only on imposing costs of Rs.500/-, illegally.
- It is to be noted that the point of limitation raised by the opposite party as a preliminary issue could be dealt with before proceeding with the enquiry/trial in the main case under Order XIV Rule 2 of CPC by the District Forum. The said provision, for the sake of convenience, is extracted below :
“ Court to pronounce judgment on all issues (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. (emphasis added ). - From the above provision, it is clear that the discretion lies with the trial court whether or not to decide the case on a preliminary issue if it relates to the jurisdiction of the Court or a bar to the case created by any law for the time being in force by postponing the settlement of other issues only after the preliminary issue was determined and that basing on result there of proceed with the case further in accordance with law.
- Now coming to the facts of the present case, the District Forum by the order dated 08.10.2015 thought it fit to decide the main case itself without deciding the preliminary issue in IA 178 of 2015. Though, this petition was filed by the opposite party to save the time of the District Forum by deciding the matter on a preliminary issue only, but, the District Forum ignored the same and thought it proper to proceed with the main case. The legal position, quoted supra, amply permits it. As seen from the record, the case was adjourned on various dates from 06.08.2015 to 10.03.2016 even after hearing the arguments of the counsel for the petitioner/opposite party in IA 178 of 2015 and also recorded the evidence adduced by the complainant in the main case. But the learned counsel for the opposite party did not notice it for no valid reason but remained absent on 08.10.2015, 29.10.2015 and 23.11.2015. In fact, nothing prevented the defence counsel in the case to bring it to the notice of the District Forum about his advancement of arguments in IA 178 of 2015 but he allowed the District Forum to record the evidence of the complainant. It reflects gross omission on his part. As the saying goes on ‘ a person cannot allow a dog to sleep and again complain that it was not barking’. In those circumstances, the District Forum had also imposed costs of Rs.300/- on the opposite party for not adducing evidence despite several adjournments. These facts clearly show latches on the part of the opposite party.
- The District Forum, in fact, set aside the exparte order dated 23.11.2015 which was passed against the opposite party but only on payment of costs of Rs.500/- which, in our view, is not illegal.
- Having regard to the facts and circumstances discussed above, we are of the considered opinion that the Revision Petition is devoid of merits and as such liable to be dismissed.
- In the result, the Revision Petition is dismissed. The District Forum shall permit the opposite party to adduce its evidence on payment of costs of Rs.500/- as ordered by it and after hearing both the parties shall dispose of the matter on merits on all points including the point of limitation raised by the opposite party. In the circumstances, the parties shall bear their own costs.
PRESIDENT MEMBER DATED : 16.09.2016 | |
