V. Jayapalan Vs. P. Natarajan - Court Judgment

SooperKanoon Citationsooperkanoon.com/1110956
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnNov-04-2009
Case NumberR.P.NO.3 of 2009 (Against order in C.M.P.No.38 of 2008 in C.C.No.14 of 2004 on the file of the DCDRF, Thiruvallur)
JudgeHON'BLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT THIRU PON. GUNASEKARAN B.A.,B.L., MEMBER - I
AppellantV. Jayapalan
RespondentP. Natarajan
Excerpt:
honble m. thanikachalam j, president 1. the respondent/ opposite party in cmp.no.38/2008 in c.c.no.14/2004, on the file of the district forum, thiruvallur, is the revision petitioner. 2. the petitioner in cmp.38/2008, as complainant, has filed a case before the district forum, originally for the following relief “honble forum may be pleased to pass an award for the damages as mentioned supra to the tune of rs.7,14,000/- against the opposite party to this complainant alongwith the interest at 12% p.a., and also for the future rental loss at the rate of rs.2,000/- per month and along with the cots of this complaint and pass such other relief as this honble forum may deem fit to pass in the circumstances of the case” 3. thereafter he has filed another application for amending the complaint, seeking additional relief in cmp.no.20/2005, and it appears the same was allowed, despite the objection by the opposite parties. as per the first amended complaint, the relief sought for reads as follows: “1. directing the opposite party to take back the property by refunding the value of the building rs.8,50,000/- or in the alternative, to pay the same as compensation for the improper and unauthorized construction in the name of the complainant by the act of the opposite party: 2. and to pay a sum of rs.5,38,000/- towards the compensation and expenses as stated above 3. and to pay a sum of rs.4,00,000/- as compensation towards loss in not accepting private employment”. 4. the two prayers, available in the original complaint, as well as the 2nd amended complaint, varies in vast terms, and despite these facts, probably to render absolute justice, the amendment petition appears to have been allowed, to give an opportunity for the complainant, to seek appropriate relief. from the amended prayer, it is seen the complainant requested a prayer, main in nature, to direct the opposite party to take back the property by refunding the value of the building rs.8,50,000/-, in addition to other reliefs. 5. not satisfied with the change of entire structure, including the prayer, once again the petitioner filed cmp.no.38/2008, for amending the complaint, to include the prayer, which reads 1. allow the complaiant to retain the property as mentioned in para 9 above 2. pay a sum of rs.19,30,400/- towards compensation and expenses as stated in para 14 above; and to 3. grant anyother reliefs as deemed fit and proper in the circumstances of this case and thus render justice according to the consumer protection act 6. from the prayer available in the amended complaint (as well as from the proposed amendment), it is clear that though originally the complainant requested the forum to issue a direction to take back the property by the opposite party, now by the proposed amendment, the complainant wants to retain the property in addition to claiming a sum of rs.19,30,400/-, thereby showing the exorbitant claim, introducing in the year 2008, though the original complaint has been filed in the year 2004. 7. in view of the change of the prayer, more or less in entirety, the opposite party, opposed the amendment application, on the principle enunciated under common law, probably as contemplated under order 6 rule 17 of the cpc. despite objections, the district forum, allowed the application, thereby causing grievance to the opposite party, and to redress the same, he has come to this commission, as revision petitioner. 8. heard the counsels for both sides, perused the entire records, as well as the order of the lower forum. 9. the submissions of the learned counsel for the revision petitioner, that the amendment filed in the year 2008, after the complaint filed in 2004, is opposed to all common law, and even some of the claim might have been barred by limitation, cannot be brushed aside, easily. though the otherside viz. the complainant, would submit that the proposed amendments were warranted, because of the change of circumstances. by going through the affidavit of the complainant, as well as meticulously reading the order of the district forum, we are unable to find any material or circumstances warranting to amend the complaint, more or less, changing the case itself, and enhancing the compensation, retaining the property, to the higher extent. the district forum in its short order, where we find no reason, allowed the amendment application, in which we are unable to concur, since it failed to take into account, the question of limitation, the sufferings of the otherside, by the proposed amendment, and how the petitioner is entitled to amend the prayer after 4 years, that too, including prayers for the cause of action, which had arisen after the filing of the complaint in 2004. 10. in the affidavit, the complainant would state, that because of the death of his wife and because of the value enhanced to the property etc., he was constrained or compelled to file a petition to amend the complaint. no materials are available for this, since the case has to be decided on the date of original cause of action, as well on the basis of the original complaint. for the death of the wife of the complainant, if the complainant wants compensation, forum cannot grant relief. similarly, for the subsequent alleged rent, as well as registration charges, restoration of power supply, and for the payment of property tax for 8 years also, cannot be granted, since most of the claims would have been barred by limitation, since admittedly under sec.24 (a) of the consumer protection act, claim should have been filed within two years, failing, neither the forum nor the commission could take cognizance, to take the case on file. in the proposed amendment also, no change of cause of action is pleaded, and consequently, as seen from the amended copy of the complaint also, we are unable to find out, from which date the cause of action had taken place. as seen from paragraph 15 of the original complaint, the cause of action for the complaint, is stated to have arisen on 9.8.02, 5.1.2004 and on 10.1.2004. by amendment also, the subsequent cause of action if any, has not been given. therefore, it is crystal clear, that for the subsequent claim, which are sought to be introduced by way of amendment, the cause of action should have arisen only from the above three dates. if that is so, the claim in the year 2008, should be held absolutely barred, and the forum has no jurisdiction to take the case on file, to decide the enhanced compensation or retention of property, etc. unfortunately, the district forum, without going into all these facts, as if anything could be granted, for mere asking or knocking the door of the district forum, allowed the application, in which we are unable to concur. 11. the forum is admittedly exercising, quasi judicial jurisdiction, and it is its bounden duty to see prima-facie, whether the proposed amendment will come within the period of limitation, if not, it should not have allowed the amendment, or atleast he should have stated, subject to limitation the amendment is allowed, which is also not expressed, as seen from the order. by the proposed amendment, the original prayer is completely changed, which is not permissible in the consumer protection act, and in view of the fact, there is no provision also, to amend the complaint, completely taking away the original prayer and substituting the new prayer. for these reasons, we are of the considered opinion that the revision petition, should be allowed and the order of the district forum, in allowing the amendment application in cmp.no.38/2008 is to be set aside. 12. in the result, the revision petition is allowed, setting aside the order of the district forum in cmp.no.38/2008 in c.c.no.14/2004 dt.7.11.2008. there will be no order as to cost.
Judgment:

HONBLE M. THANIKACHALAM J, PRESIDENT

1. The Respondent/ opposite party in CMP.No.38/2008 in C.C.No.14/2004, on the file of the District Forum, Thiruvallur, is the Revision Petitioner.

2. The petitioner in CMP.38/2008, as complainant, has filed a case before the District Forum, originally for the following relief

“Honble Forum may be pleased to pass an award for the damages as mentioned supra to the tune of Rs.7,14,000/- against the opposite party to this complainant alongwith the interest at 12% p.a., and also for the future rental loss at the rate of Rs.2,000/- per month and along with the cots of this complaint and pass such other relief as this Honble Forum may deem fit to pass in the circumstances of the case”

3. Thereafter he has filed another application for amending the complaint, seeking additional relief in CMP.No.20/2005, and it appears the same was allowed, despite the objection by the opposite parties. As per the first amended complaint, the relief sought for reads as follows:

“1. Directing the opposite party to take back the property by refunding the value of the building Rs.8,50,000/- or in the alternative, to pay the same as compensation for the improper and unauthorized construction in the name of the complainant by the act of the opposite party:

2. And to pay a sum of Rs.5,38,000/- towards the compensation and expenses as stated above

3. And to pay a sum of Rs.4,00,000/- as compensation towards loss in not accepting private employment”.

4. The two prayers, available in the original complaint, as well as the 2nd amended complaint, varies in vast terms, and despite these facts, probably to render absolute justice, the amendment petition appears to have been allowed, to give an opportunity for the complainant, to seek appropriate relief. From the amended prayer, it is seen the complainant requested a prayer, main in nature, to direct the opposite party to take back the property by refunding the value of the building Rs.8,50,000/-, in addition to other reliefs.

5. Not satisfied with the change of entire structure, including the prayer, once again the petitioner filed CMP.No.38/2008, for amending the complaint, to include the prayer, which reads

1. Allow the complaiant to retain the property as mentioned in para 9 above

2. Pay a sum of Rs.19,30,400/- towards compensation and expenses as stated in para 14 above; and to

3. Grant anyother reliefs as deemed fit and proper in the circumstances of this case and thus render justice according to the Consumer Protection Act

6. From the prayer available in the amended complaint (as well as from the proposed amendment), it is clear that though originally the complainant requested the Forum to issue a direction to take back the property by the opposite party, now by the proposed amendment, the complainant wants to retain the property in addition to claiming a sum of Rs.19,30,400/-, thereby showing the exorbitant claim, introducing in the year 2008, though the original complaint has been filed in the year 2004.

7. In view of the change of the prayer, more or less in entirety, the opposite party, opposed the amendment application, on the principle enunciated under common law, probably as contemplated under Order 6 Rule 17 of the CPC. Despite objections, the District Forum, allowed the application, thereby causing grievance to the opposite party, and to redress the same, he has come to this Commission, as Revision Petitioner.

8. Heard the counsels for both sides, perused the entire records, as well as the order of the Lower Forum.

9. The submissions of the learned counsel for the Revision Petitioner, that the amendment filed in the year 2008, after the complaint filed in 2004, is opposed to all common law, and even some of the claim might have been barred by limitation, cannot be brushed aside, easily. Though the otherside viz. the complainant, would submit that the proposed amendments were warranted, because of the change of circumstances. By going through the affidavit of the complainant, as well as meticulously reading the order of the District Forum, we are unable to find any material or circumstances warranting to amend the complaint, more or less, changing the case itself, and enhancing the compensation, retaining the property, to the higher extent. The District Forum in its short order, where we find no reason, allowed the amendment application, in which we are unable to concur, since it failed to take into account, the question of limitation, the sufferings of the otherside, by the proposed amendment, and how the petitioner is entitled to amend the prayer after 4 years, that too, including prayers for the cause of action, which had arisen after the filing of the complaint in 2004.

10. In the affidavit, the complainant would state, that because of the death of his wife and because of the value enhanced to the property etc., he was constrained or compelled to file a petition to amend the complaint. No materials are available for this, since the case has to be decided on the date of original cause of action, as well on the basis of the original complaint. For the death of the wife of the complainant, if the complainant wants compensation, Forum cannot grant relief. Similarly, for the subsequent alleged rent, as well as Registration charges, restoration of power supply, and for the payment of property tax for 8 years also, cannot be granted, since most of the claims would have been barred by limitation, since admittedly under Sec.24 (A) of the Consumer Protection Act, claim should have been filed within two years, failing, neither the Forum nor the Commission could take cognizance, to take the case on file. In the proposed amendment also, no change of cause of action is pleaded, and consequently, as seen from the amended copy of the complaint also, we are unable to find out, from which date the cause of action had taken place. As seen from paragraph 15 of the original complaint, the cause of action for the complaint, is stated to have arisen on 9.8.02, 5.1.2004 and on 10.1.2004. By amendment also, the subsequent cause of action if any, has not been given. Therefore, it is crystal clear, that for the subsequent claim, which are sought to be introduced by way of amendment, the cause of action should have arisen only from the above three dates. If that is so, the claim in the year 2008, should be held absolutely barred, and the Forum has no jurisdiction to take the case on file, to decide the enhanced compensation or retention of property, etc. Unfortunately, the District Forum, without going into all these facts, as if anything could be granted, for mere asking or knocking the door of the District Forum, allowed the application, in which we are unable to concur.

11. The Forum is admittedly exercising, quasi judicial jurisdiction, and it is its bounden duty to see prima-facie, whether the proposed amendment will come within the period of limitation, if not, it should not have allowed the amendment, or atleast he should have stated, subject to limitation the amendment is allowed, which is also not expressed, as seen from the order. By the proposed amendment, the original prayer is completely changed, which is not permissible in the Consumer Protection Act, and in view of the fact, there is no provision also, to amend the complaint, completely taking away the original prayer and substituting the new prayer. For these reasons, we are of the considered opinion that the Revision petition, should be allowed and the order of the District Forum, in allowing the amendment application in CMP.No.38/2008 is to be set aside.

12. In the result, the Revision Petition is allowed, setting aside the order of the District Forum in CMP.No.38/2008 in C.C.No.14/2004 dt.7.11.2008. There will be no order as to cost.