At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE HARISH TANDON
For the Petitioner: Gopal Chandra Ghosh, Anyasha Das, Advocates. For the Respondent: Indranath Mukherjee, D.K. Bhattacharya, Advocates.
1. These two revisional applications are filed challenging several orders passed in Complaint Case No. CC/89/2016 and final order dated 25.9.2017 passed by the State Consumer Disputes Redressal Commission, West Bengal on various grounds including that the Commission have proceeded hastily in disposing of the complaint case without affording an opportunity to the Petitioner to file written objection against the complaint case.
2. It is not in dispute that C.O. 2659 of 2017 came to be filed at a stage when the State Commission was in sesin of the matter and orders were passed for fixing the said case at ex parte board.
3. The matter was moved before this Court on August 11, 2017 and the directions were passed to serve the copy upon the opposite party herein and also a liberty was given to the Petitioner to pray for an adjournment. The second revisional application being C.O. 3559 of 2017 is filed challenging the final order dated 25.9.2017 dismissing the complaint petition ex parte.
4. This Court is in fix as to why the Petitioner has filed the second revisional application challenging the final order passed in the said complaint case. There is no doubt that the Petitioner raised grievances in an earlier revisional application as the State Commission wrongly dismissed the petition for adjournment and prayer for extension of time to file written objection leading to fixation of the complaint case at ex parte board. But this Court is astonished when the second revisional application is filed dismissing the complaint case ex parte.
To have the better understanding the salient facts are adumbrated as under:
5. The Opposite Party in both the revisional applications filed the Complaint Case under Section 17 of the Consumer Protection Act, 1986 before the State Consumer Disputes Redressal Commission, West Bengal. The Complainant / Opposite Party claimed to be the sole and absolute owner of piece and parcel of land together with the two storied building of premises No. 64/68/1, Khudiram Bose Sarani, P.S.-Ultadanga, Kolkata-700 037. An agreement for development was entered into between the parties for construction of a ground plus three storied building after demolishing the existing one and as per the said agreement the Complainant/Opposite Party was agreed to be alloted two self-contained complete flats covering the entire second floor and one car parking space on the ground floor. The agreement further stipulated that the construction of a new building shall be completed within 18 months from the date of the sanction of the building plan by the Kolkata Municipal Corporation; otherwise the Petitioner shall pay a compensation of Rs. 5,000 per month to the Complainant / Opposite Party for delay. The agreement further provided that after the completion of the new building, the possession would be given to the Complainant/Opposite Party first before delivery to any other person from the developer’s allocation.
6. The complaint petition came to be filed for direction upon the Petitioner to complete the construction of a new building and also to make it habitable together with the recovery of money, which the Complainant/Opposite Party spent for incomplete works as well as the compensation of Rs. 5,00,000 only. The record would reveal that a direction for service of the complaint petition was passed by the State Commission and the Petitioner appeared and asked for time to file written objection. It appears that the Court extended the time for filing the written objection from time-to-time and ultimately fix the matter at the ex parte board.
7. This Court can very well appreciate when the first revisional application came to be filed foreclosing the right of the Petitioner to file the written objection despite the cogent and convincing materials were produced for its non-filing. But this Court is yet to understand the reason for filing the second revisional application by the Petitioner being the Opposite Party in the said Complaint Case challenging the final order whereby and whereunder the Complaint Case was dismissed ex parte. A person can approach the higher Forum provided he is an aggrieved person. The Complaint Case was filed against the Petitioner and the moment the final order is passed dismissing the Complaint Case, he cannot be said to be an aggrieved person. Furthermore, the interlocutory orders passed in the said Complaint Case merged with the final order and therefore cannot be independently survived.
8. This Court must put on record that once the Court granted liberty to the Petitioner to ask for an adjournment what it intended was that the subordinate Tribunal should respect such request and intention and should not proceed in such a manner which would undermine such liberty. Sometimes the Court feels that granting stay may be interpreted differently by the adversary and liberty is given to seek for an adjournment so that the other side may be made aware of the filing of the said case. Service may take sometime and to expedite the matter liberty is granted to the Petitioner to ask for adjournment on the ground of the pendency of the revisional application to make the other side aware of filing of the revisional application before this Court. The State Commission ought to have respected such liberty than to frustrate it by refusing an adjournment and passing a final order.
9. This Court is not oblivion of the fact that the State Commission proceeded
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in haste in deciding the Complaint Case despite a liberty was granted by this Court in the first revisional application to seek adjournment on the ground of pendency of the revisional application. But such point becomes obliterated the moment the Complaint Case is dismissed by the State Commission and therefore the Petitioner cannot be said to be an aggrieved person entitling him to maintain the second revisional application against the final order. In view of the above, both the revisional applications are dismissed. However, there shall be no orders as to costs. Ordered accordingly.