RAJDHANI BUILDERS Vs. SUBHASH CHANDRA KHARE

JUDGEMENT

(1.) This appeal is directed against the order dated 31.12.2001 passed in Case No.14/2001 by the District Consumer Disputes Redressal Forum, Bhopal (for short the "district Forum") whereby the complaint for deficiency in service in not delivering the possession of the constructed house, was allowed with an order to return the amount of Rs.3,00,000/- with interest thereon at the rate of 18 per cent per annum from 29.12.1997 along with additional amount charged towards expenses for registration and stamp duty of Rs.16,550/- with interest thereon at the rate of 18 per cent per annum from 29.9.1997 and Rs.500/- as costs of the proceedings.

(2.) After hearing learned Counsel for the parties, it is not necessary for us to reproduce facts or to consider the submission on merits as short submission of the learned Counsel for the appellant is that the notice of the complaint was not served. The Process Server merely gave a note that the appellant refused to take notice. Personal service so affected in our opinion, is not in accordance with the provisions contained under Order 5 Rule 17 of the Code of Civil Procedure. The question was considered by this Commission in Appeal No.1626/2001, decided on 24.1.2002, M/s. Rajdhani Builders V/s. Kapil Bhatnagar, wherein this Commission has observed in para 2 thus. After hearing learned Counsel for the parties, it is not necessary for us to reproduce facts or to deal with the contentions on merits as the case deserves to be remitted for deciding the complaint after hearing the parties. This we say so as the District Forum has proceeded ex parte on the Note of the Processor Server "uprokta Pate Par Summon Lene Se Mana Kiya. Shriman Seva Me Report Pesh", who refused to take notice who identified the residential house of the appellant and in whose presence the copy of the summons were served, is not clear. The Process Server has not been examined. Therefore, such a service cannot be considered as a valid service in view of Order 5 Rule 17 of the Code of Civil Procedure and the Court has also not declared after examination of the Serving Officer that the summons have been duly served. Besides, when the appellant refused to take summons, the Process Server ought to have affixed copy of the summons on outdoor of the residential house of the appellant. That course was also not adopted nor the District Forum has ensured that the appellant has wilfully remained absent, in spite of knowledge of the complaint by examining the Process Server and other witnesses as it thinks fit. Hence, the ex parte order cannot be sustained and is hereby set aside. See, the decision of M. P. High Court in case of Baijnath Mishrilal Kachhi v Harishankar, 2001 (2) MPLJ 142.

(3.) In view of the above, the case is sent back to the District Forum for deciding the complaint afresh on merits within a period of 90 days from the date of appearance of the parties before the District Forum which is fixed as 21.5.2002 of which no notice shall be issued to the parties as they have been noticed here through their Counsel. The appellant to file its defence version on the date so fixed.