CHAIRMAN RAJ HOUSING BOARD Vs. SHYAM LAL SOMANI

JUDGEMENT

(1.) By this appeal under Sec-15 of the Consumer Protection Act, 1986 (Act No.68 of 1986) ("the Act" herein) the opposite parties-appellants question legality and correctness of the order dt.14-6-89 passed by the District Forum, Udaipur in Complaint Case No.12/89. In view of the short point involved in this appeal it is not necessary to recount the facts in detail. Suffice it to state, that the complainant filed a complaint purporting to be under Sec.12 of the Act dated 17-1-89 against the opposite parties-appellants. The complainant has prayed that the opposite-parties may be restrained from realising improper cost of the allotted House No.1 Ta-24 Sector 5 Udaipur, Hiran Magri and that the opposite-parties may be directed to remove the deficiencies in the house and to issue a possession letter. The opposite-parties contested the complaint on various grounds by filing the version of the case dated 14-3-89. Besides raising the objection of jurisdiction of the District Forum to entertain the complaint, in the additional pleas it was submitted by the opposite-parties the complainant has filed a suit in respect of the house in question in the Court of District Judge, Udaipur for permanent injunction which was transferred to the Court of Additional District Judge No.2 Udaipur, The suit was registered as Suit No.100/88. The complainant (Plantiff in the suit) also submitted an application for temporary injunction under Order XXX-IX, Rules 1 and 2 C. P. C. which was registered as Application No.43/88. This application was rejected on 4-1-89. A rejoinder was filed by the complainant. The fact of instituting the suit was admitted. It was however, submitted that the institution of the suit by the complainant prior to the establishment of the District Forums under the Act does not preclude the complainant from pursuing his remedies under the Act. The District Forum, Udaipur tried the complaint and granted reliefs to the complainant by its order dt.14-6-89. The District Forums observed:-

(2.) Following respectfully the aforesaid decisions we have taken a view in (4) Bansilal Meena V/s. Rajasthan Financial Corporation and Another (Complaint Case No.57/89 decided on Nov.7,1989) that when the matter is sub judice before the Civil Court in respect of the complaint filed before the Commission it will not be appropriate that the Commission should go into the merits of the complaint. It was observed by us as under:-

(3.) The District Forum went completely wrong when it held that for the reasons given by it, the pendency of the suit does not debar it from granting the reliefs prayed for by the complainant in the complaint filed under the Act. This is completely contrary to the principles laid down by the National Commission in the aforesaid decisions as well as by the State Commission. The crucial test that should have been applied by the District Forum should have been whether a suit in respect of the subject matter was pending before a Civil Court of not. The reliefs which were claimed in the complaint as well as in the suit are substantially the same. In this view of the matter it should not have gone into the merits of the case and granted the reliefs to the complainant.