B.M.VISWANATHAN vs NATIONAL RADIO ELECTRONICS CO.

THE decree-holder in O.P. 1036/95 is the Revision Petitioner. Persuant to the order of the District Forum the decree-holder filed E.P. 96/96, and the second judgment-debtor/second opposite party filed their objection to the execution petition. THEy sought to maintain, that they could not repair the TV within three weeks as stipulated in the order as the decree-holder did not co-operate when the technician visited the resident of the decree-holder. THEy maintained, the mother of the decree-holder who was present in the house since did not allow the technician to collect the TV set they could not repair the same within time. THE second opposite party wanted dismissal of the E.P.

ON behalf of the judgment-debtors JDWs 1 to 3 were examined. Exbts. A1 and A2 were produced. ON a consideration of the said evidence the District Forum found, that the evidence will not establish that the second judgment-debtor wilfully violated the order of the District Forum. Therefore, the seconnd judgment-debtor was given one month''s time from the date of the order to comply with the order and the decree-holder was directed to co-operate with the second judgment-debtor. It is the said order that is under challenge in this revision. With due regard to the dispute in the case it will be necessary to advert to the decretal portion of the order of the District Forum. The same is quoted by the District Forum in the impugned order itself which reads : "In the facts and circumstances of the case after perusing the relevant documents as well as the evidence on either side, we feel it is better the complainant handover the set to the opposite party No. 2 which has got a service centre at Kannur. Opposite party No. 2 shall take delivery of the set at their cost from the complainant''s house and shall attend to the necessary repair if any is required. Within 3 weeks after repair if the set is restored to perfect working condition shall be delivered back to the complainant with the full guarantee period afresh from the date of delivery. Failing which, opposite party shall refund the cost of the T.V. with 18% interest from the date of purchase together with compensation of Rs. 5,000/- (Rs. five thousand only) and costs Rs. 500/- (Rs. five hundred only). Time one month."

The first part of the order states that the opposite party No. 2 shall take delivery of the set at their cost from the complainant''s house and repair the same, restore it to the perfect working condition within three weeks and deliver the same with full guarantee for a fresh period. The second part of the order is to the effect that if the second opposite party fails to comply with the same, the second opposite party should refund the cost of the TV with 18% interest from the date of purchase together with compensation of Rs. 5,000/- and cost of Rs. 500/- the time for the same is fixed as one month.

THE E.P. dated 23.7.1996 states, that the judgment-debtor is not its representative responded to the said order even after 36 days and that they have violated and neglected the order. It is the said allegation of the decree-holder that was investigated and ultimatey the impugned order was pronounced. In considering the first point as to whether there was wilful default on the part of the opposite parties in complying with the order the District Forum came to the conclusion that there was no wilful violation of the order and consequently the District Forum gave a further opportunity of one month to comply with the order. THE learned Counsel for the revision petitioner sought to maintain, that the very approach made by the District Forum cannot be supported inasmuch as within the period prescribed in the order no attempt at all was made by any one of the judgment-debtor to comply with the order. THE order of the District Forum was on 3.4.1996. When it is an admitted case that the TV was not repaired and the justification offered by the judgment-debtor is, inspite of the effort by the second judgment-debtor to take the TV because of the non co-operation of the decree-holder it could not comply with the direction in the order, the burden of proof is on the judgment-debtor to prove the said justification. As the TV is not repaired even now the question for consideration is whether there was compliance within the time stipulated in the order. As has already seen, for attending the TV and repairing the same, time limit fixed is three weeks. Of course the said three weeks has to be interpreted to start from the date of receipt of the copy of the order. It is the case of the Revision Petitioner that he got the copy of the order on 18.6.1996 whereas according to the judgment-debtor he got the copy of the order only on 30.6.1996. THEn the TV has to be attended and repaired within three weeks therefrom is admitted in para (1) of the objection of the second opposite party. THE three weeks from the date of receipt of the copy of the order even from 30.6.1996 would expire by 21.7.1996. As has already noted within this period the TV was not repaired; the defence is, the decree-holder did not co-operate and hand over the TV for repair. For proving the same the judgment-debtor examined JDWs 1 to 3. Jdw No. 2 is the taxi driver of the taxi in which according to the Jdw No. 1 he went to the residence of the decree-holder and Jdw No. 3 is the mother of the decree-holder. In this connection one aspect has to be noticed. The judgment-debtor did not intimate the Execution Court that when attempt was made within the time prescribed to take delivery of the TV because of the default of the decree-holder they could not comply with the direction. It is pointed out, that only when the warrant was issued from the Execution Court did the second judgment-debtor enter appearance, that was long after the expiry of the period. The said circumstance will have relevance in appreciating the evidence of these witnesses. According to the evidence of Jdw 1, the technician, when he visited decree-holder on 5.6.1996 the house was found locked and when he visited on 9.7.1996 the mother of the decree-holder Jdw 3 who was present did not allow him to remove the TV. The evidence of these witnesses, as indicated, cannot inspire confidence to be acted upon particularly in the context of attending circumstances. The judgment-debtor should be in possession of the job card if as a matter of fact as is claimed by Jdw 1 he went to the house of the decree-holder on two occasions necessary entries should have been made in the job card. That necessarily would have had relevants in seeing as to whether the defence by the judgment-debtor is acceptable or not. It should be noted that job card is a document which is admittedly kept by the judgment-debtor, but it is not produced for reasons best to know to the judgment-debtor. This circumstance certainly should reflect adversly on the evidence of the judgment-debtors, the rule of best evidence has to be observed in discovering the truth of a particular disputed fact withholding of a material piece of evidence which is necessary to help an effective adjudication and should be in the possession of the party, could generate an adverse inference; and the adverse inference is, had it been produced it would have gone against the party who with-holds the relevant piece of evidence from the Court. Jdw 2 the Jeep driver though claimed to have taken Jdw 1 to the residence of the decree-holder when asked whether he had a trip sheet, he sought to explain by saying, since it was a short distance he did not make entry in the trip sheet. The evidence of Jdw 2 thus would bring out the trip sheet will not show the journey of Jdw 1 on 9.7.1996 to the house of the decree-holder. The explanation given by Jdw 2 for non-entry of the same in the trip sheet cannot in the circumstance have persuasive value. Then the only witness remaining is, Jdw 3 the mother of the decree-holder. She denied to her having opposed Jdw 1 taking the TV; she said, after the passing of the order none from the concern of the judgment-debtor visited her residence. Though the witness was declared hostile and cross-examined nothing could be brought out to shake the veracity of the witness. It is true that the judgment-debtor produced Exbt. A1 letter, which according to him, was sent to the decree-holder but was returned with endorsement the addressee left the station. The letter purportedly states, that the representative of the opposite party visited the residence of the decree-holder on 9.7.1996 but the mother of the decree-holder refused to hand over the TV set. It should be noted, that even this letter was after the expiry of the three weeks of the receipt of the copy of the order. The question for consideration being, whether there was tangible effort by the judgment-debtor to comply within the period fixed in the order, a letter purportedly sent after the expiry of the said period cannot have much relevance. The letter was sent only on 5.8.1996.

WHEN such is the type of evidence on record, the finding by the District Forum that since the decree-holder did not co-operate the judgment-debtor could not comply with the direction cannot be sustained. In considering whether he had opportunity to comply with the direction it has to be noted, that the District Forum itself have fixed the time limit for complying with the direction, that should be deemed to have been fixed after taking into consideration the normal time required to implement the order. The Execution Court cannot fit on judgment offer the said direction as the Execution Court has to execute the decree as it stands it cannot got behind the decree much less to make directions inconsistent with the decree. This aspect has been considered by the National Commission in the decision in M/s. Rajendra Properties and Industries v. Shri R.S. Nandwani & Anr., 1990 NCJ 295. The learned Counsel for the decree-holder sought to sustain the direction by the District Forum granting further time of one month by stating that the said order even if stands, will not cause any injury to the judgment-debtor so much so the revisional jurisdiction to this Commission should not be exercised in favour of the judgment-debtor. The learned Counsel referred us to the proviso to Section 115 of the CPC which enjoins that the High Court shall not vary or reverse any decree or order except where the order if allowed to stand would occasion a failure justice or cause irreparable injury. This revision is filed as per Section 17(1)(b) of the Consumer Protection Act, 1986. The said provision does not contain the said proviso to Section 115 of the CPC. Apart from the same, in our view allowing the order to stand would prejudice and cause injury to the decree-holder. As has already noticed the Execution Court granted further time of one month from the date of order for repairing the TV. This is nothing but amending in terms of the order of the District Forum; the decree-holder has right to have the TV repaired within three weeks of the receipt of the copy of the order by the judgment-debtor. Failure of which will visit the judgment-debtor with the consequence mentioned in the order itself. The effect of the order of the District Forum is such that a self working out order, the same is when default is committed, the second part of the order would come into effect without intervention of the Court, extending time to repair the TV means the benefit which has occurred to the decree-holder by the second part of the order would be taken away. That is an injury to the decree-holder as we have already found the judgment-debtor had failed to comply with the direction though the judgment-debtor had opportunity to comply with the same, the second part of the order of the District Forum has come into effect. That being the position the order of the District Forum as it now stands cannot be maintained, the same deserves to be set aside. As already observed, the decree-holders are entitled to pursue the execution of the second part of the decree for realisation of the amount mentioned therein. For that purpose the E.P. has to be restored and further steps have to be issued. In the result, the revision is allowed. The impugned order is set aside, the District Forum shall restore the E.P. to file and proceed to dispose of the matter in accordance with law, with due regard to what is stated in this order. In this revision however there will be no order as to costs. Revision allowed.