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Judgment
WE are proceeding to dispose of this appeal at the stage of admission itself on the perusal of material made available in the appeal paper book and on hearing of learned Counsels for both the parties.
AT the outset, we wish to clarify that we are not considering the merits or de-merits of the matter herein, since we are disposing of this appeal purely on law point. The appellant is the original O.P. and the respondent is the complainant. The O.P./the appellant has taken exception to the order dated 6th August, 2001 passed by the District Forum, Nagpur.
On a cursory glance on pleadings and what we gather from the submissions across that the complainant claims to be a flat purchaser and O.P. the builders. The flat purchaser filed the complaint alleging certain deficiency against the builder and claimed compensation, etc.
ON receipt of the notice under Section 13 of C.P.A., 1986 the builders responded and pointed out that Shri A.D. Anjikar, who has been named in that cause title of the complaint while describing O.P. as through (vernacular explanation used as) moved an application and pointed out that the description of the O.P. was not proper and the same suffered from mis-joinder as also non-joinder as a necessary party. It is stated that Forum considered the said application as also granted reliefs claimed therin. However, when the said complaint was taken up for hearing and came to be disposed of by order 6th August, 2001 by the District Forum, Nagpur vide judgment impugned in this appeal. Forum proceeded to do the same with unamended description of the O.P. as originally described totally ignoring its earlier order. It appears the complainant did not take steps to have the cause title of the complaint suitably amended and proper and necessary parties impleaded.
THE District Forum, Nagpur eventually has held the builder deficient and made the award. It is submitted on behalf of the O.P. that as order impugned in this appeal stands person named as Shri A.D. Anjikar would be taken as the proprietor of the O.P. which is not the position. Said Shri A.D. Anjikar is a constituted Attorney of the O.P. Builders-M/s. Anjikar Builders & Developers, in which Smt. Jyoti Anjikar is a proprietress. Reference is made to the agreement entered into between the parties being dated 19th April, 1996, wherein preamble itself makes the position about the status of the parties clear. Sh. A.D. Anjikar has signed and executed the said agreement as a constituted attorney of the builders M/s. Anjikar Developers.
THE learned Advocate for the appellant has drawn our attention to the observations of the District Forum, Nagpur, appearing in the impugned judgment on page 3 (un-numbered para 2) wherein it has dealt with and considered the aspect as highlighted hereinabove.
WITH due respect, it is not possible to concur to the perception of District Forum, Nagpur both on law and fact appearing therein. The reference made to the judgment of Mumbai High Court in the case of Midland Overseas v. CMBT Tana, 2000 (1) Bom.CR 618 as we read will have no application to the facts and circumstances as obtained in the matter herein. Since the impugned order as passed with the defects, as above, the same cannot be sustained. Hence, the appeal stands allowed and the impugned order stands set aside.
At this stage the learned Advocate for the complainant, stated that the complainant would take appropriate steps to cure the defects. We do not wish to say either way in this regard and it is for the complainant to take such steps as he may deem fit and proper and it is for the Addl. District Forum, Nagpur to consider the same on merits. ORDER (i) Appeal is allowed and its impugned order dated 6th August, 2001 is set aside. (ii) However, there shall be no orders as to cost. (iii) Appellant shall furnish the copy of the order to the District Forum, Nagpur.
Appeal allowed.