MARVIN COTA Vs. RUKMINI CONSTRUCTIONS

JUDGEMENT

(1.) The appellant was the complainant in Complaint No.25/97 on the file of Consumer Disputes Redressal Forum, South Goa and being aggrieved by order of Forum dated 30.7.1997 dismissing the complaint for default and also the order dated 13.8.1997 refusing to restore the complaint.

(2.) No exception can be taken for not granting the relief in respect of restoration of complaint as Order 9, Rule 9 or Order 9, Rule 13, C. P. C. are not applicable to proceedings before the Forum under the Consumer Protection Act, 1986 .

(3.) It is to be seen whether the order for dismissing the complaint on default of complainant could be sustained. It may be noticed that the complainants have made two grievances against the developer seeking recovery of interest on the sum of Rs.2,85,000/- advanced by them from 31.1.1994 to the date of giving possession namely 5.11.1994 and also certain other reliefs in relation to the flat purchased by them. The opposite parties have filed their preliminary objection. It may be noticed that there does not appear to be any serious objection in relation to the flat having been delivered on 5.11.1994 and that the possession was expected to be given on 31.1.1994. Even in the absence of complainant and his Advocate, or affidavit, the District Forum could have proceeded to examine the aspect whether the complainants were entitled to any part of relief, even on the basis of pleading. The District Forum has not proceeded to examine whether the complainant was entitled to any relief. When that is so and when there is no provision as such, to enable the Forum to dismiss the complaint for default even in such circumstances, it is clear to us that the order passed by the District Forum cannot be sustained. In the result, the order of District Forum dismissing the complaint for default is set aside and the matter is remitted back to its file with a direction to afford, opportunity to both the sides to file their affidavits in evidence and thereafter dispose of the complaint according to law on merits. In the result, the appeal is allowed only to the extent as indicated above.