S GITABAI Vs. K PUGHAZHENDI

JUDGEMENT

(1.) THE complainant in C.O.P. No. 53/2003 on the file of the District Consumer Disputes Redressal Forum, Nagapattinam, is the appellant herein. The complaint has been rejected by the District Forum on the ground that complicated questions are involved and those questions cannot properly be adjudicated by the Consumer Forum in summary jurisdiction with direction to the complainant to seek remedy before the appropriate Forum as per law. It is a dispute between the complainant and a builder on the basis of an agreement between them dated 13.12.1998. In the complaint, she has listed as many as 135 kinds of defects falling under various categories. Earlier the complainant had filed a complaint in C.O.P. No. 40/2002 claiming compensation running to more than Rs. 5 lakh i.e. Rs. 8,65,668 besides damages. The District Forum on the carlier occasion had dismissed it on the ground of want of pecuniary jurisdiction. The same District Forum dismissed the second complaint on the ground that it was barred by limitation. In the earlier order, the District Forum had given a specific direction to the complainant to file a fresh complaint before the appropriate Forum. The District Forum apparently overlooked the fact that the cause of action in the present case was a continuous one and there was no statutory limitation barring the filing of the complaint. The District Forum had clearly overlooked that there was no decision on merits in the previous complaint. It is now well settled that when a complaint has been disposed of without the meritsbeing considered, there could be a fresh complaint see New India Assurance Co. Ltd. v. K. Srinivasan, 2001 1 CPJ 19. The District Forum has now dismissed the complaint saying that the proper remedy would be to go to Civil Court as complex questions are involved. Though the number of defects pointed out exceeds 100, the question can be easily decided by the Distict Forum on the complainant seeking the appointment of a commissioner to visit the property give his report and on the basis of which the matter could be decided without the complainant having to go to the Civil Court. It has already taken more than five years before the Consumer Forum and it will be the height of injustice if the complainant is asked to go before the Civil Court.

(2.) CONSEQUENTLY , the appeal shall stand all owed; the order of the District Forum rejecting the complaint shall stand set aside and the matter shall stand remitted to the District Forum for consideration of rash on merits after issuing notice to the opposite party and after giving opportunity to both the parties to substantiate their respective claims Parties to appear before the District Forum on 13.8.2007. There will be no order as to costs in the appeal.