Thyagarajan (Property management) 16 April 2010

Writ petition

I had made a complaint against a builder in District Consumer Forum Chennai. After taking due care on the maintainability of the complaint the Forum issued notice to opposite party. On conclusion of hearings my complaint was dismissed on merits of the case. I had appealed to the State Forum against the order. To my surprise and shock the State Forum went on decide the maintainability of the complaint before it and without giving notice to the respondents decided to dismiss my appeal on maintainability and merits of the case. While the lower court had not dismissed the case on maintainability and challenge before the State forum is on the dismissal on merits of the case was the State Forum with in its powers to over rule that the lower court should not have taken the case on file?. Also there was no appeal by respondent to the State Forum to look into admissibility of the case. Can the dismissal by state Forum be challenged by me by way of a Writ of Certiorari Petition in High Court ?

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2 Replies

R.R. KRISHNAA (Legal Manager) 16 April 2010

In my opinion State commission has full rights to decide the issue of maintainability of the case. State commission/appellate courts have power to look into the issue of maintainability before admitting the appeal. The decision of the district forum on the issue of maintainability does not curtail / prevent the powers of the state commission to re-open or re-look into maintainability of the case. State commission has suo moto powers to try the issue of maintainability and there is no need that the respondent should have raised this issue.

The procedural remedy lies before the national consumer forum. But since the dispute involves a issue of law (whether the state commission is entitled to decide the maintainability of the appeal when the issue of maintainability is already decided by district forum?) a writ petition is definitely maintainble as per your view.

Good luck.

Thyagarajan (Property management) 16 April 2010

Dear Sri Krishna,

Thanks for your reply.

The case I took up in lower court is on sec 340 crpc. The appeal can be on sec 341 crpc in the higher court and as per law , order on sec 341 crpc is final and no revision is possible. Hence I can not approach National Commission. May be only if a full case is done involving erespondent under sec 341 crpc then no appeal can be allowed. You can advise me on this