BHIMA DEVELOPERS & BUILDERS Vs. YASHODA MADHUKAR PADALKAR

JUDGEMENT

(1.) Heard Mr. S.R. Ganbavale-Advocate for the appellants.

(2.) First point which was raised by Ld. counsel that the order has been passed by the District Consumer Forum, ex-parte. Ld. counsel accepts that he was served with the matter and he has also filed reply to the complaint. He also states that on the date when the matter was closed for judgment, matter was fixed for arguments. Only grievance is that the matter was fixed in the afternoon/second session. He further states that Advocate Mr.Ramesh Hirve attended the District Consumer Forum on that day in the afternoon session, but he came to know that the Forum has heard the matter in the first session and closed the matter for orders. It is also an admitted fact that when the advocate appeared before the District Consumer Forum, he did not give an application to the District Consumer Forum making grievance that the matter was fixed for hearing in the afternoon session and accordingly, he is present and he should be heard. Reasonable lawyer is expected to make such an application in order to protect his client. Therefore, under these circumstances, it is not possible for this Commission to find out whether really advocate attended on that day or not. Therefore, the submission that the matter proceeded ex-parte has no substance. We find that the matter was fixed for hearing and party remained absent and, therefore, District Consumer Forum proceeded to hear the matter ex-parte.

(3.) What is to be noted in the present matter is that, only arguments were heard but the reply and other documents which were produced on record by the appellants were not considered by the District Consumer Forum and, thereafter, order has been passed and therefore, it cannot be stated that the District Consumer Forum has ignored any material and in fact as per Regulation no.13 of Consumer Protection Regulations, 2005, when the matter is posted for arguments and where the party is represented by counsel, it shall be mandatory to file brief of written arguments two days before the matter is fixed for arguments. This obligation has not been discharged by the appellants. Above all, sub regulation no.(3) of 13 permits to file adjournment application to file brief. Such an application was never made even though grievance is made that advocate appeared on the date fixed for arguments. Therefore, advocate who appeared on that date, ought to have first stated that the court has not maintained the schedule and secondly, he could have also made application under regulation (3) seeking time to file brief of the arguments by them. These things he has not done and, thereafter, making grievance before this Commission that the order has been passed ex-parte has no substance and, therefore, said contention is rejected.