Decided on December 29,2010

Cilcily Mathew Appellant
Annie Varghese Respondents


- (1.) THE appellant was the complainant and respondents were the opposite parties in OP No. 504/2000 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency of service on the part of opposite parties 1 and 2 in completing the construction of the apartments within the stipulated time and also in providing the facilities which were assured by the opposite parties. The opposite parties entered appearance and filed written version denying the alleged deficiency of service. Thereby the opposite parties prayed for dismissal of the complaint.
(2.) BEFORE the Forum below, the complainant filed proof affidavit in lieu of examination in chief and also produced documents in support of the case of the complainant. The complainant also requested for marking of documents produced from her side as Exts. P1 to P4. But, the Forum below while passing the impugned order dated 30 -06 -2003 failed to mark those documents produced from the side of the complainant. In the appendix to the impugned order it is noted as nil exhibits for the complainant. The husband of the second opposite party was examined as DW1 and B1 to B6 documents were marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th June 2003 directing the opposite parties to reimburse Rs. 3,000/ - to the complainant with interest at the rate of 18% per annum from 21 -07 -1995. The other prayers in the complaint were disallowed. Hence, the present appeal by the complainant (the first complainant in the original complaint).
(3.) WHEN this appeal was taken for final hearing, there was no representation for respondents/opposite parties. We heard the learned Counsel for the appellant/complainant. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the Forum below failed to consider the evidence adduced from the side of the complainant. He has pointed out the failure on the part of the Forum below in not considering the Commission report filed by the expert Commissioner who was appointed by the Forum below. Thus, the appellant/complainant prayed for remanding the matter to the Forum below to pass an order on merits, after considering the evidence available on record including the Commission report. We perused the lower Court records available in this case. A perusal of the original complaint and the affidavit filed by the complainant would make it clear that the complainant produced 4 documents along with the complaint and requested for marking of those documents as Exts. P1 to P4. It is also to be noted that the complainant therein had also filed a rejoinder to the written version filed by the opposite parties. The complainant filed affidavit in support of her case. The complainant had also filed other documents to be marked as Exts. P1 to P19. The Forum below failed to mark those documents. A perusal of the impugned order passed by the Forum below would make it abundantly clear that the documents produced from the side of the complainant have not been considered by the Forum below. The aforesaid method and procedure adopted by the Forum below would make the impugned order legally unsustainable.;

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