First Appeal No.1043 of 2010

19th January, 2015.

Petitioner Counsel: Mr. UDAY WAVIKAR

Cases Cited:
Haresh Rajaldas Makhija Vs. Ravi Vaswani, C.A./8158/2009, Dt.04/12/2009 [Para 4]

JUDGMENT

Mr. P. B. JOSHI, Hon'ble Member :- Being aggrieved by the order dated 08/06/2010 passed by District Forum, Raigad in consumer complaint No.08/2010 partly allowing the complaint, present appeal has been preferred by the original opponent. Complaint was filed by twenty-eight persons against the opponent-builder for possession of the flats and for other consequential reliefs. District Forum proceeded ex-parte against the opponent and allowed the complaint. It is against that order present appeal has been preferred by the opponent. Learned Advocate for the appellant has submitted that present appellant-original opponent was not served with the notice of the complaint and District Forum has proceeded ex-parte illegally against the opponent and hence, order under appeal be quashed and set aside and matter be remanded back to the District Forum.

2. None present for the respondents even after service of notice by publication in newspaper. We heard Mr.Uday Wavikar, Advocate for the appellant.

3. Only question arose for our determination is whether there was proper service on the opponent of the complaint filed by the complainants.

4. Learned Advocate for the appellant has submitted that envelope was returned with postal endorsement "Not Claimed". Copy of Roznama dated 26/03/2010 is pointed out by Advocate for the appellant which shows that matter proceeded ex-parte against the opponent as the notice sent to the opponent was returned unserved with postal endorsement "Unclaimed". Learned Advocate for the appellant has submitted that, that is not a proper service. He has relied on the authority reported in Civil Appeal No.8158/2009 decided on 04/12/2009 (Haresh Rajaldas Makhija V/s. Ravi Vaswani). After going through the said authority, we find that it was observed by their Lordships of the Apex Court that since the notice sent to the appellant was returned with postal remark "Not Claimed", the District Forum could not have presumed the service of notice and proceeded ex-parte against opponent. The Court observed that by no stretch of imagination, said remark given by the Postman could be treated as the appellant's refusal to accept the notice. In view of those observations of their Lordships of the Apex Court, it is clear that in the present matter, opponent was not properly served with notice of the complaint by the District Forum and hence, order of proceeded ex-parte against opponent is illegal. Therefore, appeal deserves to be allowed. Hence, we pass the following order :-

ORDER

1. Appeal is allowed. The impugned order dated 08/06/2010 is quashed and set aside.

2. Complaint is remanded back to the District Forum for being decided afresh.

3. Parties to appear before the District Forum on 25/02/2015.

4. Parties to bear their own costs.

5. Copies of the order be furnished to the parties.

Appeal allowed.