SUPERIOR BUILDERS Vs. JAINABAI A KALASEKAR

JUDGEMENT

(1.) This revision petition is filed by the petitioner herein, who was opposite party before the State Commission aggrieved by the order of the State Commission passed in Miscellaneous Application No. 1981 of 2001 for recall of the order passed in Complaint No. 366 of 2000. The facts in brief which lead the petitioner to approach the National Commission are as under :

(2.) Smt. Jainabai A. Kalasekar, complainant before the State Commission had entered into a contract with the Builder, i.e. the petitioner herein, for purchase of flat and paid a sum of Rs. 5,70,000/- in instalments to the Builder and the flat was to be delivered on 31.12.1998. Since the flat was not delivered by the stipulated time the complainant filed complaint before the State Commission for refund of the amount with interest. Before the State Commission neither the opposite party appeared nor any reply was filed in spite of notice. The State Commission after proceeding against the opposite party ex prate, on consideration of all the facts and circumstances of the case allowed the complaint and directed the Builder to refund the sum of Rs. 5,70,000/- with interest @ 15% p.a. In addition to this, a sum of Rs. 10,000/- as costs was also awarded. After this order was passed, the opposite party filed an application before the State Commission for recalling the ex prate order. The reason given in the application was that the opposite parties were out of station for long time to attend their seriously sick father, hence the necessary instructions could not be provided to their Advocate for preparation and submission of their written statement in time. The State Commission was not satisfied with this plea as this was not corroborated by any evidence and this statement was also not on affidavit. In this context the State Commission reproduced a relevant portion of its earlier order which reads as under :

(3.) It may be mentioned here again that the opposite parties did not care to appear on the next date of hearing or file their reply. In these circumstances the State Commission had proceeded against them ex parte. While dismissing the application for recall of the order, the State Commission rightly observed that the main order was passed on merits and it has no power of review. Against this order passed on recall application as also against the ex parte order, the opposite party has come in revision before us.