Krishan Kumar Vs. Rajinder Kaur Gill and Others - Court Judgment

Excerpt:
consumer protection act, 1986 - section 15 - comparative citations: 2001 (2) cpc 79, 2001 (3) cpj 538k.k. srivastava, president: 1. we propose to decide two connected appeals bearing nos. 220 and 221 both of 2000 filed by shri krishan kumar - appellant against a common order dated 16.10.2000 passed by the district consumer disputes redressal forum - ii, u.t., chandigarh (for short hereinafter referred to as district forum - ii). it would appear from perusal of the order under appeal that the district forum - ii disposed of as many as 9 complaints filed by the complainants - ms. rajinder kaur, mr. raghbir singh, ms. amarpreet kaur, ms. balwinder kaur, ms. sushma sharma, mr. prabhjot singh, mr. janak raj, mr. m.l. sharma and mr. harjit singh. 2. these two appeals arise out of the complaint no. 224 of 1998 filed by ms. rajinder kaur gill and complaint no. 225 of 1998 by mr. raghbir singh gill. 3. in the complaint which was filed originally before the district forum-ii only two parties had been arrayed as opposite parties, namely m/s. him forest ltd. sco no. 859-60, shivalik enclave, mani majra, u.t., chandigarh and sh. janak raj bansal, managing director, m/s. him forests ltd., h. no. 712, sector - 8, panchkula. later on an application was filed by the respondent/complainant on 15th september, 1998 praying the impleading of the following four persons described as directors of m/s. him forests ltd. : (i) sh. mool chand bansal, director, m/s. him forests ltd., 26, govind vihar, v. baltana, p.o. dhakauli, tehsil dera bassi, distt. patiala (punjab). (ii) smt. usha bansal, director, m/s. him forests ltd., 26, govind vihar, v. baltana, p.o. dhakauli, tehsil dera bassi, distt. patiala (punjab) (iii) sh. anil kumar jain, director, m/s. him forests ltd., house no. 694, sector-8, panchkula. (iv) sh. krishan kumar, director, m/s. him forests ltd., c/o ice factory-cum-chilling plant, sekha road, barnala, punjab. 4. out of these four directors, who were sought to be impleaded sh. krishan kumar has filed these two appeals. 5. the sole ground taken in both the appeals is that the appellant sh. krishan kumar was never served with the notice process issued against him, of the complaint case by thedistrict forum-ii and as such the appellant was prevented from putting appearance before the district forum-ii and file his reply to the complaint and contest the same. he has also contended that the district forum-ii committed error in proceeding ex-parte against him without ensuring due service of notice of the complaint case against him. 6. the record of the two complaint cases referred to above were summoned from the district forum-ii. we have carefully gone through the zimini orders as well as the record of the both the complaint cases and find that there is no notice placed on record of the complaint case issued by the district forum-ii to the appellant-sh. krishan kumar, director, m/s. him forest ltd. as a matter of fact, so far as the record of complaint no. 224 of 1998 is concerned the zimini orders did not show about the fate of the notice process issued to the appellant. it was on 12th may, 1999 that the district forum-ii passed an order for issuance of notice to the opposite parties on fresh address supplied on that very day. these notices were ordered to be issued for 31st august, 1999. there is a note appended by the office which is dated 30th august, 1999 that notices were not received back. on 31st august, 1999 when this complaint was taken up the district forum-ii passed the following order : “present : mr. r.s. gill, agent of the complainant. none for the opposite party-3. xxx notice sent to opposite party-3 has not been returned to this forum undelivered. it is presumed to have reached it. being absent we adjudge opposite party-3 ex-parte”. for ex-parte evidence, adjourned to 9.12.1999.” 7. thereafter the case was taken up for ex-parte evidence and was decided by the order under appeal. a perusal of record of the complaint case no. 225 of 1998 shows that on 30.11.1998 ex-parte order was passed against the opposite parties. however, subsequently fresh notice was issued to the opposite party no. 3 - smt. usha bansal (the number of o.p. allotted to smt. usha bansal is as a matter of fact no. 4 and not no. 3). in the zimini order the name of opposite party no. 3 unlike in the complaint no. 225 of 1998 has not been mentioned specifically. 8. be that as it may, the opposite party no. 3 in both the complaint cases is sh. mool chand bansal. since the district forum-ii has categorically mentioned the name of smt. usha bansal, who was shown as opposite party no. 4, referred to in the zimini order as opposite party no. 3 which fact we have noted earlier. the fact, however, remains that the present appellant was not shown as opposite party no. 3 in our view is opposite party no. 4. the reference to the appellant is to be found at serial no. 6. mr. raghbir singh gill, appearing for the respondents could not show to us any material from the file of the two complaint cases from which it could reasonably be inferred that the appellant had been served with the notice. in the complaint case no. 225 of 1998, the district forum-ii has proceeded ex-parte against other opposite parties on the ground that notices sent to them were not received back undelivered and hence presumption has been drawn in favour of service. the presumption which has been raised by the district forum-ii, is a rebuttable presumption. the appellant has filed his affidavit deposing the averments made in the appeal being true facts and in the ground no. 5 of the grounds of appeal, it has been mentioned that the appellant did not receive any notice of the complaint case and had no intimation about the pendency of the complaint. the appellant came to know about the complaint case only when he received the order dated 16.10.2000 from the district forum-ii. in view of this, the averment of the presumption stands duly rebutted. 9. since the appellant had no notice of the complaint case, hence, therefore, he was prevented by sufficient cause from putting appearance before the district forum-ii to contest the complaint case. we are, therefore, of the considered view that the two appeals be allowed and the order of the district forum-ii in these two complaint cases qua the appellant sh. krishan kumar be set aside and the complaint case be remanded to the district forum-ii for allowing a reasonable opportunity of hearing to the appellant. resultantly, the two appeals are allowed. the order under appeal is set aside in so far as it relates to the appellant sh. krishan kumar. the two complaint cases no. 224 and 225 both of 1998 are remanded to the district forum-ii for decision afresh and according to law in so far as it pertains to the appellant/opposite party sh. krishan kumar. the district forum-ii shall allow a reasonable opportunity to the appellant/opposite party sh. krishan kumar of filing the written reply to the complaint case and shall thereafter permit him to lead evidence in the case. similar opportunities shall also be allowed to the complainant. thereafter the complaint case shall be decided according to law. the parties are directed to appear before the district forum-ii, on 16.2.2001.