Manjunath Shetty vs M/s Vimal Builders Partnership Firm

This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 28.11.2019 of the State Commission in complaint no. 102 of 2016.

We have heard the learned counsel for the appellants (the ‘complainants’) and for the respondent (the ‘opposite party’) and have perused the material on record including inter alia the impugned Order dated 28.11.2019 of the State Commission and the memorandum of appeal.

Vide its Order of 28.11.2019 the State Commission has dismissed the complaint for want of prosecution in the absence of the complainants. The said Order is reproduced below for reference:

28.11.2019

None present for Complainant. Complainant is not attending the case since many dates. Complainant has failed to file evidence in support of complaint. Advocate Ms. Makhijani is present for all opponents. She has already filed written version and evidence of opponents on record. As complainant has failed to file evidence on record. It appears that the complainant is not interested in prosecuting the complaint. Today case is already fixed for passing suitable order. Hence, complaint is dismissed for want of prosecution. No order as to costs.

Learned counsel for the complainants submits that the matter relates to a builder-buyer dispute. The complainants are husband and wife. They could not be present before the State Commission for about 06 weeks because of the medical condition of the complainant no. 1 i.e. the husband, due to which they had to stay in his native place in Karnataka. The complainant no. 1 was admitted in a hospital on 19.11.2019 for 02 days and was advised for follow-up and treatment for 06 weeks. The relevant hospital record has been attached with the appeal. In all this the complainants could not attend to the case before the State Commission at Mumbai in Maharashtra. The State Commission passed its impugned Order on 28.11.2019, just within a few days of his hospitalization. The complainants have a good case on merit and want opportunity to present their case before the State Commission. They will dutifully conduct their complaint before the State Commission. Submission is that the complainants will prejudicially suffer irreparably if the complaint is not restored and it may eventually lead to complete miscarriage of justice leaving the complainants remediless and helpless.

Learned counsel for the opposite party submits that the complainants do not have a good case on merit. The State Commission has rightly dismissed the complaint in default. Submission is that no interference is called for in the State Commission’s impugned Order.

The rival submissions being as they may, but having objectively and impartially considered the nature of the dispute and the overall facts and circumstances as are being borne out by the record, it is deemed to be just and conscionable that opportunity be provided to the complainants for getting the matter adjudicated on merit before the State Commission.

This Commission is consciously refraining from detailing the facts or critiquing the matter since the dispute is as yet to be adjudicated on merit and it does not wish to in any manner colour the vision of the forum below.

The Order dated 28.11.2019 of the State Commission is set aside and the complaint is restored to its original number before the State Commission.

The complainants are advised to conduct their case with due diligence before the State Commission.

The complainants and the opposite party are directed to appear before the State Commission on 21.03.2023.

The State Commission is requested to adjudicate the complaint, as per the procedure, on merit, in accordance with the law.

The Registry is requested to send a copy each of this Order to the parties and to their learned counsel immediately. It is further requested to most immediately send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.

‘Dasti’, in addition, to both sides, to facilitate compliance.