REKA PAL vs AUGUSTINE ROBERT D'CRUZ

THE respondent Augustine Robert D''Cruz filed an application under Section 12 of the C.P. Act, before the Calcutta District Forum against C.E.S.C. Limited for installation of electric line at his residence at 43, Ekbalpur Road, Calcutta. THE said case before the Calcutta District Forum was registered as C.D.F. Case No. 320 of 1992 where the appellant before us Smt. Reka Pal was not made party. In the said case the order was passed on 31.8.1992 directing the C.E.S.C. Limited for installation of a new electric meter in the name of the respondent No. 1 who was complainant/ petitioner in C.D.F. Case No. 320 of 1992. It is needless to mention that the said order was passed in absence of the appellant although the new electric meter was directed to be installed from the meter board of the appellant which is situated completely within her tenancy.

THAT the said order in CD.F. Case No. 320 of 1992 was put into execution when Smt. Reka Pal, the appellant herein came to know about the said purported order passed by the Ld. Calcutta District Forum. Immediately the appellant rushed before us by preferring an appeal being S.C. Case No. 210/A/1993 wherein this Commission by its order stayed the operation of the order in Execution Case No. 47 of 1993 and directed the appellant to file an application for setting aside the order of C.D.F. Case No. 320 of 1992. Accordingly the appellant filed an application in the said Execution Case No. 47 of 1993 inter alia praying for setting aside the order dated 31.8.1992 passed in C.D.F. Case No. 320 of 1992 but the Ld. C.D.F. observed that without varying or setting aside judgment passed in C.D.F. Case No. 320 of 1992, the order dated 29.4.1993 passed in Execution Case No. 47 of 1993 cannot be set aside. It was further observed by the C.D.F. that the order dated 29.4.93 passed in execution case is in conformity with the original judgment passed in C.D.F. Case No. 320 of 1992.

It is relevant to mention that on the self same matter an interim application was filed by the complainant/respondent No. 1 before the Hon'ble High Court in F.A. No. 258 of 1988 between himself as appellant and Gour Chand Seal as respondent where the Division Bench consisting of Justice Mukul Gopal Mukherjee and Justice J.N. Hore directed C.E.S.C. Limited for fresh electric connection to the admittedly occupied portion of Augustine Robert D''Cruz the complainant/respondent No. 1 herein without prejudice to the rights and contention of the respondent No. 1 i.e. Gour Chand Seal.

IN the aforesaid premises the order passed by the Ld. District Forum upholding the original order in C.D.F. Case No. 320 of 1992 and rejection of the application to modify and/or vary the order of the C.D.F. in Execution Case No. 47 of 1993 has been challenged by this appeal. The appellant streneously argued that appeal against an order passed in an Execution Case is not maintainable and the order passed by the Ld. C.D.F. in C.D.F. Case No. 320 of 1992 was not in conformity with the order passed by the Hon'ble High Court as such the rejection of the application for modifying and/or setting aside the order dated 31.8.92 filed by the appellant is not justified. DECISION Admittedly there was an order passed by the Hon'ble High Court in the fashion that fresh electric connection be given to the admittedly occupied portion of Augustine Robert D''Cruz, the complainant/ respondent No. 1 herein before the Consumer Disputes Redressal Forum and on scrutiny of the judgment we also observe that the said fresh electric connection to the occupied portion of the complainant/respondent No. 1 shall not prejudice the rights and contentions of the respondent, Gour Chand Seal in F.A. No. 258 of 1988. We further observe one of the contention of Gour Chand Seal in the said interim application before the Hon'ble High Court was that if the Court accorded the appellant/ petitioner, in said F.A. No. 258 of 1988 before the Hon'ble High Court, necessary sanction for obtaining electric connection that may cause some prejudice to an existing tenant under the respondent No. 1, Gour Chand Seal in the said premises viz. Smt. Reka Pal. So if the new meter is allowed to be taken from the meter board of Smt. Reka Pal, it will definitely prejudice her rights and privacy as per observation by the Hon'ble High Court for which it was ordered by the Hon'ble High Court to give fresh electric connection to the occupied portion of the complainant/respondent No. 1 before us. Moreover Smt. Reka Pal the appellant before us was not a party in the proceeding before the Hon'ble High Court but she does not object to have fresh electric connection in the occupied portion by the complainant/respondent No. 1 as such the dispute can be easily solved by giving fresh service connection to the complainant/respondent No. 1 irrespective of each other.

WE also understand that the order passed by the Hon'ble High Court for rendering fresh electric connection to the admittedly occupied portion of the complainant/respondent No. 1 may be construed as fresh service connection to the admittedly occupied portion of said Augustine Robert D''Cruz; but in any way it could not be held that fresh meter connection from the existing meter board of the appellant is same to that of a fresh electric connection to the admittedly occupied portion of the complainant/respondent No. 1 as observed by the Ld. C.D.F. Although the order of the Hon'ble High Court is not binding upon Smt. Reka Pal as she was not a party in the said proceeding before the Hon'ble High Court but as she does not object to have separate service connection in the occupied portion by the complainant/respondent No. 1 we should not hesitate to accept that proposition. As regards observation of the Ld. C.D.F. that without setting aside the order dated 31.8.92 in original proceeding of C.D.F. Case No. 320 of 1992, the order passed on 29.4.1993 in Execution Case No. 47 of 1993 before the C.D.F. could not be changed and the said observation by the Ld. C.D.F. is totally misconceived because in the prior appeal being S.C. Case No. 210/A/1993 this Commission staying the operation of the order dated 29.4.1993 of the Ld. C.D.F. in Execution Case No. 47 of 1993 directed the appellant for her addition as party in the original proceeding in C.D.F. Case No. 320 of 1992 and the Ld. C.D.F. ought to have added the appellant as party in the original proceeding and should have re-opened the same for proper adjudication of the dispute specially in view when the appellant was not added as a party by the complainant/respondent No. 1 in the original proceeding but without doing so the Ld. C.D.F. has acted with material irregularity and without exercising jurisdiction so vested in it. As per decision in the case of O.M. Purusathaman Nair v. K.V. Mohan and Another reported in 1993 (1) C.P.R. 43 pronounced by State Consumer Disputes Redressal Commission Kerala it has been held that a person who was not a party to the proceeding cannot be made liable without affording him a chance to defend himself/herself. It is also the consistent views of the Supreme Court that without affording opportunity to the aggrieved parties no order should be passed in his/her absence. The ratios laid down in the: case of Harilal v. Kalinath reported in AIR 1962 S.C. 199 and also in a case of Awadh v. Sudarshan reported in AIR 1965 P. 427 (F.B.), prov vide that even in the execution proceeding the dispute raised by a party who was not orginally added in the proceeding can raise a dispute in the execution proceeding and the Court without adjudication of such dispute cannot proceed with the execution proceeding and if necessary the original order can be changed and/or modified in the execution proceeding itself. So the Ld. C.D.F. on the basis of the said settled principle of law backed by our direction for addition of party to the appellant ought to have re-opened the original case and given an opportunity to the appellant to be heard of.

THE contention on behalf of the complainant/respondent No. 1 that the appeal against an interlocutory order dated 29.4.1993 in Execution Case No. 47 of 1993 passed by the Ld. C.D.F. is not maintainable as the impugned order is a revisional order. So complying with the decision reported in II (1991) CPJ 51 in the case of Jaipur Stock Exchange Limited, Jaipur v. C.P. Metha Organiser, Small Investors Protection Fund, Jaipur and Others we can treat the appeal as a revisional application as the order passed by the Ld. C.D.F. is interlocutory order. Accordingly the appeal filed by the appellant being converted into revisional application on the basis of aforesaid decision is well maintainable.

THE contention of the C.E.S.C. Limited that in a single premises the two service connections cannot be accorded as per rules. We are given to understand that 43, Ekbalpur Road is a vast and big premises where two separate service connection will not create any technical problem specially in view of the Order dated 11.4.1990 passed by the Hon'ble High Court in F.A. No. 258 of 1988, for fresh electric connection to the complainant/respondent No. 1. Moreover no such rule has been placed before us which creates embargo on the C.E.S.C. Limited to give two separate service connections in the single premises specially in the case of such vast and big premises like 43, Ekbalpur Road. So the contention of C.E.S.C. Limited is overruled and rejected. We accordingly allow the petition of the appellant/petitioner and set aside the impugned order dated 24.6.1993 passed in C.D.F. Execution Case No. 47 of 1993 and modify the order dated 29.4.1993 passed in the said execution case and the order dated 31.8.1992 passed in Original C.D.F. Case No. 320 of 1992 directing the C.E.S.C. Limited to give a fresh service connection to the admittedly occupied portion of the complainant/respondent No. 1 Augustin Robert D''Cruz upon proper compliance of the formalities by him in this regard. The parties will bear their respective costs. Appeal allowed.