Writ Petition No.18735 of 2008

30th January, 2009

Petitioner Counsel: P. VEERA REDDY
Respondent Counsel: KISHORE RAI

Cases Cited:
Yogendra Builders Vs. Vidya Paradise Owners' Welfare Association, 2008(4) ALT 768 [Para PARA3,13]
New India Assurance Co. Ltd. Vs. R. Srinivasan, 2000(3) SCC 242 [Para PARA6,9]
Smt. Savita Garg Vs. Director, National Heart Institute, 2005(5) ALL MR 42 (S.C.) =AIR 2004 SC 5088 [Para PARA7]
State of Karnataka Vs. Vishwabharathi House Building Co-Operative Society, (2003)2 SCC 412 [Para PARA8]
Laxmi Engg. Works Vs. P.S.G. Industrial Institute, (1995)3 SCC 583 [Para PARA8]
Dr. J. J. Merchant Vs. Shrinath Chaturvedi, 2002(4) ALL MR 605 (S.C.) =AIR 2002 SC 293 [Para PARA1 9]
National Consumer Disputes Redressal Commission, New Delhi in Manjulaben Vs. Parmar, (1992) CPJ 101 (NC) [Para PARA10]
Sunil Blood Bank and Transfusion Centre Vs. Naresh Kumar, 1992(1) CPR 430 [Para PARA11]
Jindal Poly Industries Vs. United India Insurance Company, S.C. & National Commission Consumer Law Cases (1996-2005) 715 [Para PARA12]
Ramaniyam Real Estates Limited Vs. Triveni Apartments Owners Welfare Association, AIR 1999 Mad 24 [Para PARA13]

JUDGMENT

-VILAS V. AFZULPURKAR, J.:- This writ petition is filed questioning the order of A.P. State Consumer Disputes Redressal Commission, Hyderabad-1st respondent in RP No.180 of 2008. dated 12.8.2008 whereby the revision petition filed by the petitioners was dismissed.

2. Brief facts of the case are that the third respondent herein filed a complaint against the petitioners herein alleging that they have raised a wall dividing common parking area into two parts and constructed independent house illegally in part of the parking area besides pent house over the terrace etc. The petitioners herein disputed the said allegation and contended that the building was constructed in 1993 and there is a lot of difference in the features of the building which existed then and today. In order to establish the allegations, the third respondent filed an application seeking appointment of an advocate-commissioner to note down the physical features of the said apartments called 'Siva's Palace Phase-I'. The said application was resisted by the petitioners inter alia on the ground that such a petition is not maintainable. By order of the District Forum dated 23.6.2008 the said application was allowed on the ground that the builder-petitioners herein will not be put to any inconvenience and the report of the commissioner would be necessary to elicit the truth of the allegations and consequently an advocate commissioner was appointed to note down the physical features with the assistance of a qualified civil engineer at the time of executing the warrant. The aforesaid order was questioned by the petitioners herein before the State Commission by filing RP No.180 of 2008. Under the impugned order, the State Commissioner has dismissed the said revision. Hence this writ petition.

3. We have heard the learned counsel for the petitioners and the learned counsel for the third respondent-complainant. It is contended by the learned counsel for the petitioners that under the provisions of the Consumer Protection Act, 1986 (for short "the Act") no such powers, as are exercisable by a civil court, are available to the authorities under the Act. Even otherwise, it is contended that the allegations made by the third respondent-complainant are required to be established by him by leading evidence and the aforesaid attempt to get an advocate commissioner appointed, in reality, amounts to collecting evidence by the complainant through process of court. The learned counsel relied upon a decision of this Court reported in Yogendra Builders and another Vs. Vidya Paradise Owners' Welfare Association and another, 2008(4) ALT 768 to contend that under the Act the consumer fora have no such power, as Order 26 of the Code of Civil Procedure (for short "the Code") is not extended to the authorities under the Act.

4. Per contra, the learned counsel for the third respondent-complainant has also relied upon the same decision referred to above to contend that whenever the consumer fora viz., State Commission or National Commission is satisfied that an opinion of expert is essential for proper adjudication, they can exercise such power. He also contends that local inspection of the building by a qualified engineer along with advocate commissioner will only apprise the Consumer Forum of factual situation with respect to premises and as such no prejudice would be caused. He also contends that the District Forum as well as State Commission can exercise powers of a civil court and a procedural power to appoint a commissioner was felt necessary and as such it cannot be said that the impugned order is without jurisdiction.

5. We have considered the submissions on either side. Before going into the validity of the impugned orders, it is necessary to notice that the very objects and reasons of the Act is to provide speedy and simple redressal of consumer disputes by a quasi-judicial machinery at the District, State and Central levels and the said quasi-judicial bodies will observe the principles of natural justice and keep in mind the specific nature of the complaint and award appropriate compensation. Section 13(4) of the Act reads as follows :

"(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-

(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath,

(ii) the discovery and production of any document or other material object producible as evidence,

(iii) the reception of evidence on affidavits,

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,

(v) issuing of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed."

6. It would be noticed from the above provision that by a fiction the District Forum is treated as a civil court under the Code for limited purposes as enumerated under the clauses (i) to (vi) of Section 13(4) of the Act. Whether the Code, as it applies to a civil court, is applicable to the consumer fora, fell for consideration before the Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. R. Srinivasan, 2000(3) SCC 242. The question whether bar under Order 9, Rule 9(1) of the Code is applicable to consumer fora was considered by the Supreme Court in paragraphs 7, 8 and 10 which are extracted below :

"7. The procedure which the District Forum has to follow while trying a complaint is indicated in Section 13 of the Act which, inter alia, provides as under :

13. Procedure on receipt of complaint -

(1) to (3) ...

(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil Court under the CPC, 1908 while trying a suit in respect of the following matters, namely:

(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness: and

(vi) any other matter which may be prescribed.

8. The above will show that powers which are available to a civil Court under the CPC have also been made available to the District Forum in respect of matters enumerated in sub-section (4) of Section 13.

9. ...................

10. We have already indicated above that the CPC has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter. before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act."

7. In Smt. Savita Garg Vs. Director, National Heart Institute, AIR 2004 SC 5088 : [2005(5) ALL MR 42 (S.C.)], the question which fell for consideration before the Supreme Court was whether non-joinder of a party would lead to dismissal of original complaint and in that context, the Supreme Court considered the provisions of Order 1, Rule 10 of the Code vis-a-vis the provisions of the Act and in paragraph No.7 the Supreme Court observed as follows :

"Therefore, as far as the Commission is concerned, the provisions of the Code of Civil Procedure are applicable to the limited extent and not all the provisions of the Code of Civil Procedure are made applicable to the proceedings to the National Forum. Rules have also been framed under the Act, known as the Consumer Protection Rules, 1987, where Rule 14 has prescribed the procedure to be followed by the Commission. Rule 14 says that the name, description and the address of the complainant and the opposite parties, as the case may be, so far as they can be ascertained, should be given. Clause (b) of sub-section (1) which is relevant for our purposes reads as under:

"(b) the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained."

8. Further in State of Karnataka Vs. Vishwabharathi House Building Co-Operative Society and others, (2003)2 SCC 412 while considering the validity and scheme of the Act the Supreme Court had considered inter alia the procedure adopted by the Consumer Court as laid down under Section 13 of the Act and relying upon its earlier decision in Laxmi Engg. Works Vs. P.S.G. Industrial Institute, (1995)3 SCC 583 it held,

".......... the quasi-judicial bodies authorities agencies created by the Act known as District Forums, State Commission and the National Commission are not Courts though invested with some of the powers of a Civil Court. They are quasi-judicial Tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these Forums/Commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional Forum providing expensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The Forum so created is uninhibited by the requirement of Court fee or the formal procedures of a Court."

9. As mentioned above, both the learned counsel relied upon the same decision of the learned single Judge of this Court in Yogendra Builders and another Vs. Vidya Paradise Owners' Welfare Association and another. In the said decision the validity or maintainability of an application under Order 26, Rule 9 of the Code for appointment of a commissioner to make local inspection fell for consideration and it was held that though the provisions of Order 26, Rule 9 of the Code are not applicable to the consumer fora - National Commission or State Commission, as the case may be, but still if the said authorities under the Act are satisfied that such opinion is necessary for proper adjudication, the authorities under the Act shall have power in making an appropriate decision in relation to the dispute. The learned single Judge has referred to decisions of the Supreme Court in New India Assurance Co. Ltd. Vs. R. Srinivasan, (supra) and Dr. J. J. Merchant and others Vs. Shrinath Chaturvedi, AIR 2002 SC 2931 : [2002(4) ALL MR 605 (S.C.)]. In J. J. Merchant's case (supra) the issue involved was whether in a complaint alleging medical negligence complicated questions of law can be considered or tried by the Consumer Court and answer to that question having been given in the affirmative, the Supreme Court has made a reference to Section 13(4) of the Act which invests limited powers of civil court on the authorities under the Act.

10. In fact, the National Consumer Disputes Redressal Commission, New Delhi in Manjulaben Vs. Parmar and another, (1992) CPJ 101 (NC) considered the question as to whether cross appeal is maintainable under the Act and in para-21 it answered in negative,

"Before closing this order we may mention here that the respondents have filed cross objections in this appeal. Those purport to have been filed under Sec.22 of the Consumer Protection Act. That Section only lays down the procedure to be adopted by this Commission while disposing of complaints or any other proceedings. The powers to be exercised are those of Civil Court as specified in sub-sections (4) and (5) of Sec. 13 of the Act. Those sub-sections of Section 13 do not mention of filing cross objections in an appeal. Hence we are of the opinion that cross objections cannot be filed in an appeal filed before this Commission. We need not dilate upon this point as cross objections as such were not argued."

11. In another case in Sunil Blood Bank and Transfusion Centre Vs. Naresh Kumar and another, 1992(1) CPR 430 the National Consumer Disputes Redressal Commission was examining the order of the State Government setting the appellant ex parte and in that connection it was observed by the National Commission as follows :

"All the provisions of the Code of Civil Procedure are not applicable to the proceedings before the redressal forums constituted under the Consumer Protection Act and only certain specific provisions enumerated in Sec. 13(4) of the Act are made applicable to such proceedings. Hence the State Commission should not have imported the hypo technical procedure of debarring a party from filing his written statement and adducing his evidence in opposition to the complaint petition on the ground that he was absent on an earlier date of posting and had been set ex parte. To adopt such a procedure in the absence of any compelling provision in the statute, would constitute denial of natural justice. Inasmuch the impugned order has been passed without giving the appellant a fair opportunity to place its defence before the State Commission, we are constrained to allow this appeal, set aside the order passed by the State Commission................"

12. In another decision of the National Consumer Disputes Redressal Commission in Jindal Poly Industries Vs. United India Insurance Company and another, S.C. & National Commission Consumer Law Cases (1996-2005) 715, maintainability of the cross-objections fell for consideration as provided under Order 41, Rule 22 of the Code and it was held that the provisions of the Code are not applied except those mentioned under the Act and the rules framed thereunder and Order 41, Rule 22 of the Code being not provided as applicable, the same is not available.

13. It may also be necessary to note that in the decision of a learned single Judge in Yogendra Builders and another Vs. Vidya Paradise Owners' Welfare Association and another (supra), reference was made to a decision of the Madras High Court in Ramaniyam Real Estates Limited Vs. Triveni Apartments Owners Welfare Association, AIR 1999 Mad 24 for the proposition that local inspection by an expert can be ordered by the Consumer Forum as it has trappings of a civil court. Although the said decision supports the case of third respondent, but in view of the decisions of the Supreme Court referred to above, we are not persuaded to agree with the said view. Except those provisions of the Code mentioned under Section 13(4) of the Act, no other provisions of the Code can be applied to the Consumer Fora under the Act. Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath. discovery and production of any document, reception of evidence on affidavits and requisitioning of expert reports, are all matters provided for under clauses (i) to (iv) of Section 13(4) of the Act and clause (v) specifically provides for issuance of any commission for examination of any witness. If really the legislature intended to provide for applicability of entire Order 26 of the Code, it could have said so instead of confining itself to issuance of commission only for the purpose of examination of witnesses. In view of the specific legislative intent discernible from the aforesaid provision, we are of the view that the powers as exercisable by the civil court under Order 26 of the Code are not available to the Consumer Fora under the Act. It is, however, open for the third respondent-complainant to establish his allegations by leading such evidence, as he is advised. In fact, as mentioned above under Section 13(4)(iii) of the Act evidence on affidavits can be received by the Consumer Fora under the Act which may be affidavits of experts including civil engineer. However, invoking the provisions under Order 26, Rule 9 of the Code and seeking appointment of an advocate commissioner to make local inspection along with an civil engineer and submit a report etc., as ordered by the Consumer District Forum and as approved by the Stale Commission under the impugned orders herein, is, however, clearly unsustainable in the absence of any such power being available.

14. The writ petition deserves to be allowed and it is accordingly allowed and both the impugned orders are quashed. No costs.

Petition allowed.