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Thursday, February 24, 2011

BEST JUDGEMENT - NO COURT PASS ORDER FOR FAVOURINGS- SEC.5 LIMITATION ACT

   REPORTABL

   E

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO. 2909-2913 OF 2005

Lanka Venkateswarlu (D) by LRs. .. Appellants

VERSUS

State of A.P. & Ors ..Respondents

   J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These appeals are directed against the order passed

by a Division Bench of the High Court of Judicature of

Andhra Pradesh at Hyderabad in CMP Nos. 21114,

21115, 21116, 21117 and 21118 of 2003 dated 19th

August, 2003. By the aforesaid order, the High Court

has allowed all the petitions/applications.

2. In the applications/petitions, respondent No.3,

herein, had sought the following directions:-

   "
   CMP
   No. 21114/2003: Petition under

   Order 22 Rule 4 of the CPC praying that in

   the circumstances stated in the affidavit titled

   therewith, the High Court will be pleased to

   permit the petitioners to bring the above stated

   persons as legal representatives of the

   deceased sole respondent in Appeal

   No. 8 of 1985 on the file of the High Court.

   CMP No. 21115/2003: Petition U/s praying

   that the High Court may be pleased to set

   aside the dismissal Order dated 6.2.98 in AS

   No.8 of 1985 and to restore the appeal to file.

   CMP No. 21116/2003: Petition Under Order 9

   Rule 9 read with section 151 CPC, praying that

   the High Court may be pleased to set aside the

   abatement caused due to the death of sole

   respondent i.e. Lanka Venkateswarlu.

   CMP No. 21117/2003:

   Between

   Sri D.E.V Apparao ...Petitioner/impleaded

   Petitioner in AS No.8 of 1985 on the file of

   High Court

   And:

   1. The State of A.P. rep. by District

   Collector, Visakhapatnam.

   2. The Tahsildar, Visakhpatnam

   ...Respondent/Appellants

   3. Lanka Venkateswarlu (died)

   ...Respondent

   2

   Petition under Order 1 Rule 10 CPC, prays this

   Hon'ble Court may be pleased to permit the

   petitioners society to be impleaded as

   appellant No.3 along with the appellants No. 1

   and 2 in AS. 8 of 1985 on the file of the

   Hon'ble Court to prosecute the appeal.

   CMP No. 21118/2003: Petition U/s 5 of

   Limitation Act praying the High Court may be

   pleased to condone the delay of 883 days in

   filing the petition seeking to set aside the

   dismissal order dated 6.2.1998.

   These petitions coming on for hearing, upon

   perusing the petition and the affidavit filed in

   support thereof and upon hearing the

   arguments of Govt. pleader for Appeal for

   Petitioners in CMP Nos. 21114, 21115, 21116,

   21118 of 2003 and of Mr. K. Sarva Bhouma

   Rao, Advocate for petitioner in CMP

   No. 21117 of 2003 and of Mr. M.S.R.

   Subramanyam, Advocate for the respondents

   in CMP Nos. 21114, 21115, 21116, 21118 of

   2003 and G.P. for Appeal for the respondents

   in CMP No. 21117 of 2003."

3. We may now briefly notice the relevant facts as

stated in the pleadings of the parties and the impugned

order of the High Court. The predecessor of the

appellants, i.e., Shri Lanka Venkateswarlu, (hereinafter

referred to as `original plaintiff'), brought a suit O.S. No.

72 of 1979 before the subordinate judge Visakhapatnam

   3

for the declaration of his title as the absolute owner of

the suit schedule property and for permanent injunction

restraining respondents Nos. 1 and 2 from interfering

with his peaceful possession. The suit schedule property,

to the extent of 2 acres was, according to the original

plaintiff, covered by survey No. 73/12 in Thokada village.

He had purchased the suit schedule property by a

registered sale deed dated 15th July, 1961 from one

Gonna Appanna son of Venkataswamy of China Gantyda

village. The original plaintiff was constrained to file the

aforesaid suit on coming to know that respondent Nos. 1

and 2 were claiming the suit schedule land to be "banjar

land" which vested in the Government. He had also

learned that the land was in imminent danger of being

illegally alienated by the respondent Nos. 1 and 2. They

were claiming that the land was required to issue Pattas

to weaker sections of society.

4. Respondent Nos. 1 and 2 were impleaded as the

defendants to the suit. Subsequently, the suit was

   4

transferred to the Court of IVth Additional District Judge,

Visakhapatnam and renumbered as O.S. No. 83 of 1981.

5. The aforesaid averments of the original plaintiffs

were controverted by the respondent Nos. 1 and 2. It was

claimed that the plaint schedule property was not

covered by old survey No. 73/12 of the original village of

Thokada. The boundaries as well as survey number were

stated to be fictitious, forged and imaginary. Even the

ownership of the ancestors of the vendor of the original

plaintiff of the suit schedule land was denied. Further,

the alleged sale deed dated 15th July, 1961 between the

original plaintiff and the vendor was denied. It was also

stated that the original plaintiff was not in possession

and enjoyment of the plaint schedule property.

6. On the pleadings of the parties, the trial court

framed six issues. Issue No. 1 pertains to the title of the

original plaintiff to the schedule property. Issues No.2 &

3 were with regard to, whether the original plaintiff was

   5

entitled to relief of declaration and injunction as prayed

for. Issue No.4 was whether the suit is not maintainable.

A perusal of the judgment of the trial court shows that

the suit was hotly contested on each and every issue.

Issues 1, 2, 3, 4 and 6 were decided in favour of the

original plaintiff and against the defendants, i.e.,

respondent Nos. 1 and 2. Issue No.5 with regard to

valuation of the suit was not pressed by the government

pleader. The suit was decreed by judgment dated

24th September, 1982.

7. The respondents challenged the aforesaid judgment

and decree by filing an appeal before the High Court of

Andhra Pradesh being A.S. No. 8 of 1985. The sole

respondent, i.e., original plaintiff died on 25th February,

1990. Therefore, the Advocate appearing for the

deceased original plaintiff being the `sole respondent' in

the appeal filed a memo before the High Court giving

intimation about the death of his client. The memo was

filed after giving notice to the advocate for respondent

   6

Nos. 1 and 2, who were appellants in the aforesaid

appeals. In spite of such intimation, respondent Nos. 1

and 2 failed to bring the legal representatives of the

deceased original plaintiff on record.

8. From the judgment of the High Court it is apparent

that the appeal came up for hearing on 24th April, 1997.

At that stage, the counsel for the appellants again

brought to the notice of the Court that his client has

passed away on 25th February, 1990. The High Court

directed the government pleader to take steps to bring on

the record the legal representatives of the original

plaintiff and posted the matter for hearing on 16th June,

1997. It appears that no actions were taken by the

respondents to comply with the order passed by the High

Court on 24th April, 1997. Therefore, on 6th February,

1998, Justice V. Rajagopala Reddy, J. passed the

following order:-

   "Appeal under Section 96 CPC against the

   order of the Court of the IV Addl. District

   Judge, Visakhapatnam dt.24.09.1982 in O.S.

   No. 83/81.

   7



   This appeal coming on for orders under

   Rule 64 of the Appellate Side Rules of the High

   Court on the failure of the Appellant herein.

   1. To take steps to bring on record the LRs. of

   the deceased sole respondent.

   In the presence of G./P. for Excise for the

   Appellant and of Mr. M.S.R. Subramanyam,

   Advocate for the respondent No.1.

   It is ordered as follows:

   1. That the Appellant do within one week from

   the date of this order comply with the

   requisitions of the Office referred to above

   and;

   2. That in default of compliance with the said

   requisitions within the time prescribed in

   clause 1 supra, the Appeal shall stand

   dismissed as against the sole respondent

   herein."

9. The aforesaid order was admittedly not complied

with. Consequently, the appeal stood abated in terms of

the order dated 6th February, 1998. It appears that

thereafter CMPSR No. 49656 of 2000 was moved by

respondent Nos. 1 and 2 seeking condonation of 883

days delay in filing the petition to set aside the dismissal

order dated 6th February, 1998. The application was

   8

accompanied by an affidavit where it is candidly admitted

by respondent No.2 that the order dated 6th February,

1998 was not complied with. It was further admitted

that as the order dated 6th February, 1998 was not

complied with, the default order came into force and the

appeal stood dismissed.

10. In this affidavit, the explanation given is that the

predecessors of the officer, who affirmed the affidavit

dated 11th July, 2000 came to know about the dismissal

of the appeal during the course of investigation in

original O.S. No. 6 of 2000 which had been filed by the

widow and the children of the deceased original plaintiff,

i.e., sole respondent in the appeal. It is also admitted

that thereafter, an application was filed for setting aside

the order of abatement dated 6th February, 1998, but,

without any application seeking condonation of delay of

883 days in filing the petition. To cover the foresaid

lapse, CMP No. 21118 of 2003 was filed seeking

condonation of delay of 883 days in filing the petition.

   9

11. Thereafter CMPSR No. 58644 of 2000 was filed on

17th August, 2000 with a prayer to condone the delay of

3703 days to bring the legal representatives on record.

CMPSR No. 58646 of 2000 was filed to bring the legal

representatives of the deceased original plaintiff on

record and CMPSR No. 58645 of 2000 to set aside the

order of dismissal in AS No. 8 of 1985 dated 6th February,

1998 was filed. These applications were subsequently

numbered as noted in the heading of the impugned

judgment.

12. It appears from the impugned order of the High

Court and CMPSR No. 58644 of 2000 was numbered as

CMP no. 17186 of 2000 on 17th August, 2000 and listed

before the Court on 27th September, 2000. The High

Court granted two weeks time for filing the counter. The

aforesaid CMP was posted for hearing before the bench

on 16th October, 2000 (Venkatanarayan,J.). At that time,

counsel for the deceased original plaintiff submitted that

   1

his client had died in 1990 and he had no instructions.

Therefore, the Court directed to issue notice to the

parties on the petition. Even at that stage the

government pleader did not bring to the notice of the

Court that the applications filed by respondent Nos. 1

and 2 to set aside the order of dismissal and to bring the

legal representatives on record were pending

consideration.

13. Thereafter it appears the matter was adjourned on a

number of occasions from 27th June, 2001 to 9th April,

2002. Surprisingly, on 3rd June, 2002 the government

pleader again took time from the Court to verify whether

any separate application was filed for restoration of the

appeal and whether any such application was pending or

not. Thereafter the matter was not pursued by the

government pleader.

14. In the meantime, the alleged beneficiaries to whom

Pattas had been granted by the Government Poramboke

   1

in the year 1979 filed CMP No. 21705 of 2000, seeking

permission of the Court to come on record as the third

appellant in the appeal. In the impugned order, it is also

pointed out that the pendency of the applications had

come to the notice of the Court intermittently. It appears

that the application to condone the delay in filing the

petition for setting aside the order of dismissal was filed,

when the lapse was pointed by the Court.

15. Thereafter, it seems that without the adjudication of

any of the applications on merits, the appeal was listed

for hearing before the Bench, which culminated into

passing the judgment and order dated 19th August, 2003,

subject matter of the present appeal. By the aforesaid

judgment, the High Court has allowed all the applications

restored the appeal posted it for hearing on 25th August,

2003.

16. This Court while issuing notice in the SLP

on 15th December, 2003 directed that "in the meantime,

   1

proceedings in the appeal pending in the High Court

shall remain stayed". Therefore, it is evident that the

situation today is as it was when the order was passed on

6th February, 1998, i.e., appeal filed by the respondent

Nos. 1 and 2 stood abated and hence dismissed.

17. We have heard the learned counsel for parties.

Mr. P.S. Narasimha, senior advocate, appearing for the

appellant submitted that the impugned order of the High

Court cannot be justified on any legal ground. He

submits that the High Court having itself recorded the

utter negligence of the respondents in pursuing the

appeal at every stage, without any justification, condoned

the delay. The learned senior counsel pointed out that

there was no explanation, much less any plausible

explanation to justify the delay of 3703 days in filing the

application for bringing on record the LRs. of the sole

respondent or for the delay in filing the application for

setting aside the order dated 6th February, 1998. It was

further submitted that there was no justification to

   1

   permit the respondent No.3 to be impleaded as a party in

   the appeal. Learned counsel relied on the judgment of

   this Court in the case of Balwant Singh (dead) Vs.

   Jagdish
   Singh1
   in support of the submission that the

   law of limitation has to be enforced in its proper

   prospective. Even though the Courts have power to

   condone the delay, it can not be condoned without any

   justification. Such an approach would result in rendering

   the provisions contained in the Limitation Act redundant

   and inoperative.

   18. On the other hand, learned counsel for the

   respondents relied on the judgments of this Court in the

   case of N. Balakrishnan Vs. M.
   Krishnamurthy2
   ,

   Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram

   Kini & Ors.3 and Sardar Amarjit Singh Kalra (dead) by

   LRs Vs. Pramod
   Gupta (dead) by LRs.4
   and submitted

1 (2010)8 SCC 685

2 (1998) 7 SCC 123

3 (2003) 10 SCC 691

4 (2003) 3 SCC 272

   1

   that the High Court in condoning the delay has merely

   advanced the cause of substantial justice.

   19. We have considered the submissions made by the

   learned counsel. At the outset, it needs to be stated that

   generally speaking, the courts in this country, including

   this Court, adopt a liberal approach in considering the

   application for condonation of delay on the ground of

   sufficient cause under Section 5 of the Limitation Act.

   This principle is well settled and has been set out

   succinctly in the case of Collector, Land Acquisition,

   Anantnag & Ors. Vs. Katiji & Ors.5

   20. In the case of M. Balakrishnan (supra), this Court

   again reiterated the principle that rules of limitation are

   not meant to destroy the rights of parties. They are

   meant to see that the parties do not resort to dilatory

   tactics, but seek their remedy promptly.

5 (1987) 2 SCC 107

   1

21. In the case of Sardar Amarjit Singh Kalra (supra),

this Court again emphasized that provisions contained in

the Order 22 CPC were devised to ensure continuation

and culmination in an effective adjudication and not to

retard further progress of the proceedings. The provisions

contained in the Order 22 are not to be construed as a

rigid matter of principle, but must ever be viewed as a

flexible tool of convenience in the administration of

justice. It was further observed that laws of procedure

are meant to regulate effectively, assist and aid the object

of doing a substantial and real justice and not to

foreclose even adjudication on merits of substantial

rights of citizen under personal, property and other laws.

In the case of Mithailal Dalsangar Singh and Ors. Vs.

Annabai Devram Kini & Ors, (Supra), this Court again

reiterated that in as much as abatement results in denial

of hearing on the merits of the case, the provision of an

abatement has to be construed strictly. On the other

hand, the prayer of setting aside abatement and the

   1

dismissal consequent upon abatement had to be

considered liberally. It was further observed as follows:-

   "The Courts have to adopt a justice oriented

   approach dictated by the uppermost

   consideration that ordinarily a litigant ought

   not to be denied an opportunity of having a lis

   determined on merits unless he has, by gross

   negligence, deliberate inaction or something

   akin to misconduct, disentitled himself from

   seeking the indulgence of the court."

22. The concepts of liberal approach and

reasonableness in exercise of the discretion by the Courts

in condoning delay, have been again stated by this Court

in the case of Balwant Singh (supra), as follows:-

   "25. We may state that even if the term

   "sufficient cause" has to receive liberal

   construction, it must squarely fall within the

   concept of reasonable time and proper conduct

   of the party concerned. The purpose of

   introducing liberal construction normally is to

   introduce the concept of "reasonableness" as it

   is understood in its general connotation."

   "26. The law of limitation is a substantive law

   and has definite consequences on the right

   and obligation of party to arise. These

   principles should be adhered to and applied

   appropriately depending on the facts and

   circumstances of a given case. Once a

   valuable right has accrued in favour of one

   party as a result of the failure of the other

   party to explain the delay by showing sufficient

   1

   cause and its own conduct, it will be

   unreasonable to take away that right on the

   mere asking of the applicant, particularly

   when the delay is directly a result of

   negligence, default or inaction of that party.

   Justice must be done to both parties equally.

   Then alone the ends of justice can be achieved.

   If a party has been thoroughly negligent in

   implementing its rights and remedies, it will be

   equally unfair to deprive the other party of a

   valuable right that has accrued to it in law as

   a result of his acting vigilantly."

23. Let us now examine as to whether the High Court

was justified in condoning the delay in the peculiar facts

of the presence case. The High Court in its judgment

records the following conclusions:-

   "(1) The Government Pleader having filed the

   appeal on 18.2.1983 has taken three long

   years to get the appeal numbered.

   (2) The sole respondent died in 1990. The

   learned counsel for the respondent submits

   that he served a letter on the learned

   Government Pleader bringing to his notice

   about the death of his client in 1990 itself.

   Since the letter is not traced we are not giving

   much importance to that fact. But at the same

   time this fact was brought to the notice of the

   Government Pleader on 24.2.1997 when the

   appeal was listed for hearing.

   (3) Even though the Court gave sufficient time

   the Government Pleader has not taken any

   steps to bring LRs. on record.

   1

   (4) After one year the Court passed a

   Conditional Order on 6.2.1998 and the appeal

   was dismissed for not bringing the LRs. on

   record.

   (5) After two more years the concerned

   officials of the Government and the

   Government Pleader in office at the relevant

   point of time, filed some applications, which

   are not in order.

   (6) Even then they have not bestowed any

   attention either to comply with the defects in

   filing the application or in getting the orders

   are passed on these applications. But at the

   same time they went on taking time without

   knowing for what purpose they were taking

   time.

   In the result an appeal which would have been

   disposed of in 1997 remained pending all these

   years mainly due to the negligence on the part

   of the Government Pleader in office.

Thereafter at the two stages, the High Court records

that:-

   "In the normal course we would have thrown

   out these applications without having second

   thought in the matter.............."

   "We have already observed that in the normal

   course we would have dismissed the

   applications for severe latches on the part of

   the appellants and their counsel."

   1

24. Having recorded the aforesaid conclusions, the High

Court proceeded to condone the delay. In our opinion,

such a course was not open to the High Court, given the

pathetic explanation offered by the respondents in the

application seeking condonation of delay.

25. This is especially so in view of the remarks made by

the High Court about the delay being caused by the

inefficiency and ineptitude of the government pleaders.

The displeasure of the Court is patently apparent from

the impugned order itself. In the opening paragraph of

the impugned order the High Court has, rather

sarcastically, dubbed the government pleaders as without

merit and ability. Such an insinuation is clearly

discernable from the observation that "This is a classic

case, how the learned government pleaders appointed on

the basis of merit and ability (emphasis supplied) are

discharging their function protecting the interest of their

clients". Having said so, the High Court, graphically

narrated the clear dereliction of duty by the concerned

   2

government pleaders in not pursuing the appeal before

the High Court diligently. The High Court has set out the

different stages at which the government pleaders had

exhibited almost culpable negligence in performance of

their duties. The High Court found the justification given

by the government pleaders to be unacceptable. Twice in

the impugned order, it was recorded that in the normal

course, the applications would have been thrown out

without having a second thought in the matter. Having

recorded such conclusions, inexplicably, the High Court

proceeds to condone the unconscionable delay.

26. We are at a loss to fathom any logic or rationale,

which could have impelled the High Court to condone the

delay after holding the same to be unjustifiable. The

concepts such as "liberal approach", "justice oriented

approach", "substantial justice" can not be employed to

jettison the substantial law of limitation. Especially, in

cases where the Court concludes that there is no

justification for the delay. In our opinion, the approach

   2

adopted by the High Court tends to show the absence of

judicial balance and restraint, which a Judge is required

to maintain whilst adjudicating any lis between the

parties. We are rather pained to notice that in this case,

not being satisfied with the use of mere intemperate

language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant

language in a judgment has been repeatedly disapproved

by this Court in a number of cases. Whilst considering

applications for condonation of delay under Section 5 of

the Limitation Act, the Courts do not enjoy unlimited and

unbridled discretionary powers. All discretionary powers,

especially judicial powers, have to be exercised within

reasonable bounds, known to the law. The discretion

has to be exercised in a systematic manner informed by

reason. Whims or fancies; prejudices or predilections

can not and should not form the basis of exercising

discretionary powers.

   2

27. The order of the High Court, in our opinion, is

based purely on the personal perceptions and

predilections of the Judges on the bench. The latent

anger and hostility ingrained in the expressions employed

in the judgment have denuded the judgment of

impartiality. In its desire to castigate the government

pleaders and the Court staff, the High Court has

sacrificed the "justice oriented approach", the bedrock of

which is fairness and impartiality. Judges at all levels in

this country subscribe to an oath when entering upon

office of Judgeship, to do justice without fear or favour, ill

will or malice. This commitment in form of a solemn oath

is to ensure that Judges base their opinions on

objectivity and impartiality. The first casualty of

prejudice is objectivity and impartiality. It is also well

known that anger deprives a human being of his ability

to reason. Judges being human are not immune to such

disability. It is of utmost importance that in expressing

their opinions, Judges and Magistrates be guided only by

the considerations of doing justice. We may notice here

   2

   the observations made by a Constitution Bench of this

   Court in the case of State of U.P. Vs. Mohammad

   Naim
   6
   , which are of some relevance in the present

   context. In Paragraph 11 of the judgment, it was

   observed as follows:-

   "If there is one principle of cardinal importance

   in the administration of justice, it is this: the

   proper freedom and independence of Judges

   and Magistrates must be maintained and they

   must be allowed to perform their functions

   freely and fearlessly and without undue

   interference by any body, even by this Court.

   At the same time it is equally necessary that in

   expressing their opinions Judges and

   Magistrates must be guided by considerations

   of justice, fair-play and restraint. It is not

   infrequent that sweeping generalisations defeat

   the very purpose for which they are made. It

   has been judicially recognised that in the

   matter of making disparaging remarks against

   persons or authorities whose conduct comes

   into consideration before courts of law in cases

   to be decided by them, it is relevant to

   consider (a) whether the party whose conduct

   is in question is before the court or has an

   opportunity of explaining or defending himself;

   (b) whether there is evidence on record bearing

   on that conduct, justifying the remarks; and

   (c) whether it is necessary for the decision of

   the case, as an integral part thereof, to

   animadvert on that conduct. It has also been

   recognised that judicial pronouncements must

   be judicial in nature, and should not normally

   depart from sobriety, moderation and reserve."

6 (1964) 2 SCR 363

   2

28. We are of the considered opinion that the caustic

remarks made by the High Court, against the government

pleaders and the Court staff clearly exhibits a departure

from the principles quoted above.

29. We are of the considered opinion that the judgment

of the High Court is unsustainable either in law or in

equity. Consequently, the appeals are allowed. The

impugned judgment of the High Court is set aside with

no order as to costs.

   ...................................J.

   [B.Sudershan Reddy]

   ...................................J.

   [Surinder Singh Nijjar]

New Delhi;

February 24, 2011.

   2

Saturday, February 19, 2011

how to fix compensation in motor accident cases

   REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO.1923-1924 OF 2011

   (Arising out of SLP (Civil) No.16406-16407 of 2010)

Sri. K.R. Madhusudhan & Ors. ...Appellant(s)

   Versus

The Administrative Officer & Anr. ...Respondent(s)

   J U D G M E N T

GANGULY, J.

1. Delay condoned.

2. Leave granted.

3. On 4.10.1998, at about 8.55 a.m., V.

   Rajagopalaiah was crossing the road near Ashraya

   Hotel, B.M. Road, Channapatna, when a Maruti Van

   (owned by the first respondent) bearing

   registration No. KA-05-A-2535 came at a high

   speed and dashed against the deceased, causing

   1

   severe injuries. He was taken to hospital, but

   he succumbed to his injuries.

4. The deceased was of 53 years of age and was

   survived by his wife and three sons, the present

   appellants. They filed a claim petition under

   Section 166 of the Motor Vehicles Act, 1988

   claiming Rs.20,00,000/- as compensation. It was

   contested by the respondents.

5. Motor Accident Claims Tribunal (hereinafter

   "MACT") found that the death of V. Rajagopalaiah

   was due to the rash and negligent driving of the

   van driver (the second respondent). The deceased

   was working as Senior Assistant in Karnataka

   Electricity Board (hereinafter "KEB") and his

   last drawn gross monthly salary was Rs.15,642/-

   i.e. Rs.1,87,704/- annually. 1/3rd was deducted

   for personal expenses, after which the amount

   came to Rs.1,25,136/-. As deceased was 53 years

   of age, a multiplier of 11 was applied. The

   Tribunal also awarded funeral and transport

   expenses amounting to Rs.10,000/-, medical

   2

   expenses prior to death was Rs.6,000 and

   compensation for loss and affection at

   Rs.25,000/-. Accordingly, total compensation

   awarded was Rs.14,27,496/- along with interest

   of 9% p.a.

6. The appellants and the respondents both appealed

   against the award of the Tribunal to the High

   Court of Karnataka. The appellants appeared for

   enhancement and the respondents for reduction of

   the amount awarded. The High Court, in its

   impugned judgment, reduced the compensation

   awarded by the Tribunal to the appellants to

   Rs.11,82,000/-. The relevant portion of High

   Court order reads as follows:

   "The deceased was working as Senior

   Assistant in KEB getting a salary of

   Rs.15,642/-. After effecting

   deductions towards income tax, the net

   salary of the deceased would be

   Rs.14,000/-. The mother and sons of

   the deceased have filed claim

   petition. 1/5 is to be deducted

   towards personal expenses. Rs.11,200/-

   would enure to the benefit of the

   dependants. The deceased was aged

   about 52 years. The deceased would

   have retired by 58 years. After

   superannuation, the deceased would get

   3

   pensionary income in a sum of

   Rs.6000/-. 1/5 is to be deducted

   towards personal expenses. Rs.4800/-

   would enure to the benefit of the

   dependants. Split multiplier would

   apply. After superannuation,

   multiplier 6 would apply. Therefore,

   the total loss of dependency before

   superannuation would be Rs.8,06,400/-

   (Rs.11200 (income) X 12 (months) X 6

   (multiplier). The total loss of

   dependency from the pensionary income

   would be Rs.3,45,600/- (Rs.4800/-

   (income) X 12 (months) X 6

   (multiplier). The total loss of

   dependency would be Rs.11,52,000/- The

   petitioners are entitled for a sum of

   Rs.25,000/- towards loss of expectancy

   and Rs.10,000/- towards funeral

   expenses. In all the petitioners are

   entitled for a total sum of

   Rs.11,82,000/- as against

   Rs.14,27,496/- awarded by the

   Tribunal. The petitioners are entitled

   for interest at 6% p.a."

7. Assailing the same, the appellants contend that

   the future prospects of the deceased and

   revision in salary were not taken into

   consideration by the High Court and a split

   multiplier should not have been adopted.

8. The law regarding addition in income for future

   prospects has been clearly laid down in Sarla

   4

Varma (Smt.) & Others v. Delhi Transport

Corporation & Another [(2009) 6 SCC 121] and the

relevant portion reads as follows:

   "In Susamma Thomas this Court

   increased the income by nearly 100%,

   in Sarla Dixit the income was

   increased only by 50% and in Abati

   Bezbaruah the income was increased by

   a mere 7%. In view of the

   imponderables and uncertainties, we

   are in favour of adopting as a rule of

   thumb, an addition of 50% of actual

   salary to the actual salary income of

   the deceased towards future prospects,

   where the deceased had a permanent job

   and was below 40 years. [Where the

   annual income is in the taxable range,

   the words "actual salary" should be

   read as "actual salary less tax"]. The

   addition should be only 30% if the age

   of the deceased was 40 to 50 years.

   There should be no addition, where the

   age of deceased is more than 50 years.

   Though the evidence may indicate a

   different percentage of increase, it

   is necessary to standardize the

   addition to avoid different yardsticks

   being applied or different methods of

   calculation being adopted. Where the

   deceased was self-employed or was on a

   fixed salary (without provision for

   annual increments etc.), the courts

   will usually take only the actual

   income at the time of death. A

   departure therefrom should be made

   only in rare and exceptional cases

   involving special circumstances."

   5

9. In the Sarla Verma (supra) judgment the Court

   has held that there should be no addition to

   income for future prospects where the age of the

   deceased is more than 50 years. The learned

   Bench called it a rule of thumb and it was

   developed so as to avoid uncertainties in the

   outcomes of litigation. However, the Bench held

   that a departure can be made in rare and

   exceptional cases involving special

   circumstances. We are of the opinion that the

   rule of thumb evolved in Sarla Verma (supra) is

   to be applied to those cases where there was no

   concrete evidence on record of definite rise in

   income due to future prospects. Obviously, the

   said rule was based on assumption and to avoid

   uncertainties and inconsistencies in the

   interpretation of different courts, and to

   overcome the same.

10. The present case stands on different factual

   basis where there is clear and incontrovertible

   evidence on record that the deceased was

   entitled and in fact bound to get a rise in

   6

   income in the future, a fact which was

   corroborated by evidence on record. Thus, we are

   of the view that the present case comes within

   the `exceptional circumstances' and not within

   the purview of rule of thumb laid down by the

   Sarla Verma (supra) judgment. Hence, even though

   the deceased was above 50 years of age, he shall

   be entitled to increase in income due to future

   prospects.

11. We base our conclusion on our findings from the

   records of the case. The evidence of PW.1, the

   son of the deceased, is that there are four

   claimants, three of them are the sons of the

   deceased and the other claimant is paternal

   grand-mother. Therein, he stated that the

   deceased was the only bread earner of the

   family. It was stated by PW.1 that if his

   father, the deceased, would have been alive he

   could have got promotion and could have received

   the salary of Rs.20,000/- per month.

   7

12. PW.3, who was the Senior Assistant in KEB, in

   his evidence also stated that the deceased was

   52 years of age at the time of his death and he

   was having six years of service left. The annual

   increment is Rs.350/-. In the year 2003 (which

   would have been year of retirement), the basic

   pay of the deceased would have been around

   Rs.16,000/- and in all he would have obtained

   gross salary of Rs.20,000/- per month. PW.3

   deposed that as per the Board Agreement for

   every five years their pay revision is

   compulsory. Both the witnesses were cross-

   examined before the Tribunal but the evidence

   leading to pay revision was not assailed.

13. Therefore, the consistent evidence before the

   Tribunal was that if the deceased would have

   been alive he would have reached the gross

   salary of Rs.20,000/- per month.

14. In view of this evidence the Tribunal should

   have considered the prospect of future income

   while computing compensation but the Tribunal

   8

   has not done that. In the appeal, which was

   filed by the appellants before the High Court,

   the High Court instead of maintaining the amount

   of compensation, granted by the Tribunal,

   reduced the same. In doing so, the High Court

   had not given any reason. The High Court

   introduced the concept of split multiplier and

   departed from the multiplier used by the

   Tribunal without disclosing any reason

   therefore. The High Court has also not

   considered the clear and corroborative evidence

   about the prospect of future increment of the

   deceased. When the age of the deceased is

   between 51 and 55 years the multiplier is 11,

   which is specified in the II Column in the II

   Schedule in the Motor Vehicles Act, and the

   Tribunal has not committed any error by

   accepting the said multiplier. This Court also

   fails to appreciate why the High Court chose to

   apply the multiplier of 6.

15. We are, thus, of the opinion that the judgment

   of the High Court deserves to be set aside for

   9

   it is perverse and clearly contrary to the

   evidence on record, for having not considered

   the future prospects of the deceased and also

   for adopting a split multiplier method.

16. The income of the deceased will be taken to be

   Rs.20,000/- p.m. which amounts to Rs.2,40,000/-

   p.a. After deduction of 1/3rd amount for personal

   expenses, the loss of notional income will be

   Rs.1,60,000/-. The multiplier of 11 will be

   applied, from which the loss of dependency will

   amount to Rs.17,60,000/-. We also award

   Rs.10,000/- for funeral and transport expenses,

   Rs.6,000/- for medical expenses prior to death

   and Rs.25,000/- for loss of love and affection.

   Thus, the total compensation awarded amounts to

   Rs.18,01,000/- which we round off to

   Rs.18,00,000/-.

17. The amount of compensation would thus be

   Rs.18,00,000/- with the rate of interest as

   granted by the Tribunal. The amount is to be

   deposited with the Tribunal within six weeks

   1

   from date after deducting any amount, if already

   deposited.

18. The appeals are, thus, allowed. No costs.

   .....................J.

   (G.S. SINGHVI)

   .....................J.

   (ASOK KUMAR GANGULY)

New Delhi

February 18, 2011

   1

man eater - surendra koli - sensational child killer and eater

ITEM NO.101 COURT NO.6 SECTION II

   S U P R E M E C O U R T O F I N D I A
   RECORD OF PROCEEDINGS
   CRIMINAL APPEAL NO(s). 2227 OF 2010

SURENDRA KOLI Appellant (s)

   VERSUS

STATE OF U.P. ORS. Respondent(s)

WITH SLP(Crl) NO. 608 of 2010
(With office report)

Date: 15/02/2011 This Appeal was called on for hearing today.

CORAM :
   HON'BLE MR. JUSTICE MARKANDEY KATJU
   HON'BLE MRS. JUSTICE GYAN SUDHA MISRA

For Appellant(s) Dr. Sushil Balwada, Adv. AC

   Mr. Vivek K. Tankha (A.S.G.)
   Mr. T. A. Khan, Adv.
   Mr. Pratul Shandilya, Adv.
   Mr. Sumeer Sodhi, Adv.
   Mr. Vaibhav Srivastava, Adv.
   Mr. Kumnanan D., Adv.
   Mr. Arvind Kumar Sharma, Adv.
   Mr. Harsh, Adv.

For the appellant Mr. B. P. Singh Dhakray, Adv.
In SLP (crl) Mr. Shakti Singh Dhakray, Adv.
608 of 2010 Mr. D. B. Vohra, Adv.


For Respondent(s) Mr. Ratnakar Dash, Sr. Adv.
   Mr. Shail Kumar Dwivedi, AAG
   Mr. Rajeev K. Dubey, Adv.
   Mr. Kamlendra Mishra ,Adv

For Resp No. 1 Mr. R. S. Sodhi, Sr. Adv.
In SLP (Crl) Ms. Manisha Bhandari, Adv
608 of 2010 Mr. Omkar Shrivastava, Adv. For

   Ms. Madhu Moolchandani

   -1-

   -2-

   UPON hearing counsel the Court made the following
   O R D E R

   The appeal is dismissed in terms of the
   signed order.

   SLP(Crl) NO. 608 of 2010

   Leave granted.

   (Deepak Joshi) (Indu Satija)
   Sr. P.A. Court Master

   (Signed reportable order is placed on the file )

   Reportable
   IN THE SUPREME COURT OF INDIA
   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO 2227 OF 2010

SURENDRA KOLI .........Appellant (s)

   Versus

STATE OF U.P. AND ORS. ........Respondent (s)

   WITH

   SPECIAL LEAVE PETITION (CRL.) 608 of 2010

   O R D E R

   Heard Dr. Sushil Balwada, learned counsel, who has

appeared for the appellant Surendra Koli in Criminal Appeal

No. 2227 of 2010.

   The appellant Surendra Koli, accused no. 2 and

Maninder Singh Pandher accused no. 1 were convicted under

Section 302/364/376 IPC by the Special Sessions trial no.

611 of 2007 decided on 13.02.2009 by Additional Sessions

Judge, Ghaziabad, U.P. By that judgment death sentence was

imposed on both these accused.

   In Appeal/Reference to the High Court accused

Surendra Koli's death sentence was affirmed while the

accused Maninder Singh Pandher was acquitted. Hence,

Surendra Koli has filed this Appeal before us.

   The facts of this case are gruesome and horrifying.

It seems that several children had gone missing over 2 years

from Sector 31, Nithari Village, Gautam Budh Nagar, Noida

from 2005 onwards. Several of such children were alleged to

   -1-

   -2-

have been killed by the appellant who is also alleged to

have chopped and eaten the body parts after cooking them.

Appellant Surendra Koli was the servant of accused no. 1

Moninder Singh, and they lived together at D-5, Sector 31,

Noida.

   The High Court in the impugned judgment dated

11.09.2009 has discussed the evidence in great detail and we

have carefully perused the same. It is not necessary

therefore to again repeat all the facts which have been set

out in the judgment of the High Court except where

necessary. We entirely agree with the findings, conclusion

and sentence of the High Court so far as accused Surendra

Koli is concerned.

   Admittedly, there was a confession made by Surendra

Koli before the Magistrate under Section 164 Cr.PC on

01.03.2007 and we are satisfied that it was a voluntary

confession. The Magistrate repeatedly told the accused

Surendra Koli that he was not bound to make the statement

and it can be read against him. In our opinion the

provisions of Section 164 CrPC have been fully complied with

while recording the said statement.

   In the aforesaid statement before the Magistrate

appellant Surendra Koli has admitted in great detail how he

used to kill the girls after luring them inside the House

no. D-5, Sector 31, Noida by strangulating them, and he

would then chop up and eat up their body parts after cooking

them. Some body parts, clothes and slippers were thrown in

   -3-

the enclosed gallery behind the house at D-5, Sector 31,

Noida. He volunteered to lead the police team to the

specific spot where he had kept the articles/body parts

hidden. The police party reached that spot along with the

appellant. On his pointing out, 15 skulls and bones were

recovered, and also a knife was recovered from a water tank

of a bath room in D-5, Sector 31. On 31.12.2006 during the

scooping of the drain in front of D-5, bones and chappals

were recovered.

   He has given graphic description about the several

murders he has committed. Surendra Koli was the servant of

co-accused Maninder Singh Pandher as has been admitted by

him. The confession under Section 164 has been corroborated

in material particulars. The body parts of the killed girls

have been found in the gallery behind the house and in the

Nala beside the house.

   Weapons like knife have also been recovered. The

girls clothes have also been identified.

   Two girls PW-27 namely Pratibha and PW-28 namely

Purnima have stated before the trial Court that they were

also attempted to be lured inside the House D-5 by Surendra

Koli but they refused to enter the house. This was their

sheer good luck, for if they would have entered the house

then they might have met the same fate. Their evidence

indicates the modus operandi of the appellant.

   The parents of one Rimpa Haldar had filed a missing

report at the police station on 20.07.2005 stating that

their daughter Rimpa aged about 15 years had gone to do

   -4-

menial work in Sector 20 on 08.02.2005 but had not returned.

Smt Doli Haldar came to know that in D-5, Sector 31 human

skeleton and clothes had been found. Hence she went there

and identified the chunni and bra of her daughter.

   The appellant was charged for the murder of Rimpa

(amongst others), and was found guilty by both the trial

Court and High Court. Although it is a case of

circumstantial evidence we are of the opinion that the

entire chain of circumstances connecting the accused

Surendra Koli with the crime has been established by the

prosecution beyond reasonable doubt.

   The DNA test of Rimpa by CDFD, a pioneer institute

in Hyderabad matched with that of blood of her parents and

brother. The Doctors at AIIMS have put the parts of the

deceased girls which have been recovered by the Doctors of

AIIMS together. These bodies have been recovered in the

presence of the Doctors of AIIMS at the pointing out by the

accused Surendra Koli. Thus, recovery is admissible under

Section 27 of the Evidence Act.

   On the facts of the case we see no reason to

interfere with the findings of the trial court and the High

Court that the appellant Surendra Koli is guilty of

murdering Rimpa Haldar. Both Courts have gone into the

evidence in great detail and we have perused the same. The

appellant appears to be a serial killer, and these cases in

our opinion fall within the category of rarest of the rare

cases as laid down in Bachan singh Vs State of Punjab, 1982

SCC 689 which has been subsequently followed in Atbir Vs

Government of NCT of Delhi, 2010 SCC (9) 1.

   -5-

   The killings by the appellant Surendra Koli are

horrifying and barbaric. He used a definite methodology in

committing these murders. He would see small girls passing

by the house, and taking advantage of their weakness lure

them inside the house no. D-5, Sector 31, Nithari Village,

Noida and there he would strangulate them and after killing

them he tried to have sex with the body and would then cut

off their body parts and eat them. Some parts of the body

were disposed off by throwing them in the passage gallery

and drain (nala) beside the house. House no. D-5, Sector 31

had become a virtual slaughter house, where innocent

children were regularly butchered.

   In our opinion, this case clearly falls within the

category of rarest of rare case and no mercy can be shown to

the appellant Surendra Koli.

   The appeal is, therefore, dismissed.

SPECIAL LEAVE PETITION (CRL.) 608 of 2010

   Leave granted.

   .....................J.
   [MARKANDEY KATJU]

   .....................J.
   [GYAN SUDHA MISRA]
NEW DELHI;
FEBRUARY 15, 2011

Thursday, February 17, 2011

UNFAIR TRADE PRACTICE - JOINT VENTURE BUILDING WAS DEMOLISHED- LIABLE TO REPAY

   Reportable
   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO.1493 OF 2011
   [Arising out of SLP [C] No.7283/2010]

Vinod Kumar Thareja ... Appellant

Vs.

M/s Alpha Construction & Ors. ... Respondents

   ORDER

R. V. Raveendran J.

   Leave granted.

2. The appellant, the owner of a plot measuring about 11000 sq.ft.

situated at Bhopal, entered into a Joint Venture Agreement dated 2.7.2004

with the first respondent for development of the said plot by construction

and sale of nine duplex flats. Under the said agreement, the appellant was to

provide his land to the first respondent for construction of flats; the first

respondent was responsible for the construction and sale of the duplex flats;

and out of the sale proceeds realized by sale of the flats, the appellant was
2

entitled to 45% and the first respondent was entitled to the balance of 55%.

The first respondent was authorized to enter into agreements of sale with

prospective purchasers of flats even at the stage of construction and receive

the price either in a lump sum or in instalments. The first respondent was

solely responsible for completion of construction and the quality of

construction. According to the appellant, his obligation under the joint

venture agreement was only to contribute the land and in consideration

thereof receive 45% of sale proceeds.

3. In pursuance of it, the appellant and first respondent entered into an

agreement dated 18.9.2004 with respondents 2 and 3, who were interested in

purchasing one of the nine duplex flats to be constructed in the property. The

said agreement clearly stated that the first respondent was to construct the

duplex flat and receive the consideration from respondents 2 and 3. In

pursuance of it, the first respondent's proprietor (Rajbir Singh), as Attorney

holder of the appellant, executed a sale deed dated 14.1.2005 in favour of

respondents 2 & 3, conveying an extent of 968 sq.ft., of land with a skeletal

structure thereon for Rs.6 lakhs.
3

4. Respondents 2 and 3 filed a complaint dated 22.6.2006 before the

District Consumer Redressal Forum, Bhopal (`District Forum' for short)

against the first respondent alleging deficiency in service. In the said

complaint they alleged that they had paid Rs.11,80,000/- to the first

respondent out of a total consideration of Rs.13,50,000/- for the purchase of

a duplex flat; that on 25.6.2005, the Municipal Corporation demolished the

structure constructed by the first respondent; and that the first respondent

committed an unfair trade practice by not disclosing the true facts and by not

delivering the constructed flat. The complainants also alleged that thereafter

the first respondent failed to construct the flat and was guilty of gross

negligence and deficiency in service. The complainants consequently

demanded from the first respondent, refund of the sum of Rs.11,80,000/-

paid by them with interest of Rs.3,35,000/-, compensation of Rs.2,00,000/-

and punitive damages of Rs.2,00,000/- in all Rs.19,15,000/-.

5. The said petition was contested by the first respondent who was the

sole respondent. The appellant was not impleaded as a party before the

District Forum, by the complainants. Even the first respondent did not make

any application before the District Forum for impleading the appellant as a
4

co-respondent. Nor did he contend that the appellant should be made liable

for payment of any amount that may be directed by the commission. He

merely contended that the complainants ought to have made the appellant

also a party and in his absence the complaint was liable to be dismissed.

6. The District Forum allowed the complaint by order dated 11.1.2007

and directed the first respondent to refund the sum of Rs.11,80,000/- paid by

the respondents 2 and 3 to the first respondent, with interest at 18% per

annum from the date of deposit till date of payment.

7. Feeling aggrieved, the first respondent filed an appeal before the

Madhya Pradesh Consumer Dispute Redressal Commission (`the State

Commission' for short) challenging the order of the district forum. In the

said appeal, the first respondent made an application for impleading the

appellant herein as the third respondent. That application was allowed on

28.4.2008 and the State Commission impleaded the appellant as third

respondent in the appeal and directed the appellant to file its response to the

complaint filed by the complainants under section 12 of the Act.
5

8. The appellant therefore filed a counter to the main complaint before

the State Commission pointing out that neither in the complaint by the

complainant nor in the appeal by the first respondent anything adverse has

been pleaded against them nor any claim made against him; and therefore,

the question of fastening any liability against him did not arise. The

appellant also filed objections to the appeal by contending that he was not a

necessary party to the appeal. He pointed out that the complainants had not

alleged or proved any wrong doing on his part or any deficiency in service

on his part, nor made any claim against him and therefore he could not be

impleaded as a party in the appeal.

9. The State Commission allowed the appeal of the first respondent in

part by a brief order dated 19.9.2008. It held that as the flats were

constructed by the first respondent in the land belonging to the appellant in

pursuance of a joint venture agreement between them and as the agreement

for sale in favour of respondents 2 and 3 had been executed jointly by the

appellant and first respondent and as the subsequent sale deed in favour of

respondents 2 and 3 was executed by the proprietor of first respondent as

attorney holder of the appellant, and as obtaining of building permission for

construction was the joint responsibility of the appellant and the first
6

respondent, the appellant herein was also responsible to compensate the

complainants for any loss suffered by them on account of the demolition by

the Municipal Corporation. As a consequence, the State Commission, while

upholding the direction of the District Forum for refund of Rs.11,80,000/-

paid by the complainants, made the following modifications :

(a) Respondents 2 and 3 shall re-convey the property in favour of
   appellant;

(b) The interest shall be reduced to 9% per annum; and

(c) The first respondent as also the appellant were liable for the amount
   payable to respondents 2 and 3.

10. Feeling aggrieved, the appellant filed a revision before the National

Consumer Dispute Redressal Commission (`National Commission' for

short) which dismissed the revision by the impugned order with the

following observations :

   "It is not in dispute that the owner of the property as well as the builder
   had entered into joint agreement to build the flats and though the
   responsibility of visiting the office of the corporation frequently to obtain
   sanctioning the plan/building licence. Commencement certificate and
   completion certificate etc., was delegated to the builder. The building
   permission is obtained in the name of owner and builder. Therefore, the
   builder and owner both are jointly responsible for all commission and
   omission. Even while collecting money from the consumers/complainants,
   an agreement was signed by the owner also. Further the Municipal
   Corporation had demolished the building because of dispute in the title of
   the property. Therefore, the liability of the petitioner, who claims to be the
   owner of the property of which title is unclear and still had entered into an
7

   agreement and sold the plot to the gullible consumers is proved and the
   deficiency is writ large."
   (Emphasis supplied)

The said order is challenged by the appellant in this appeal by special leave.

11. On the contentions urged, the following question arises for

consideration in this appeal : Whether a respondent against whom an order

for payment has been made in a complaint under the Consumer Protection

Act, 1986, can in an appeal filed by him, seek impleadment of a third party

by contending that such third party is also liable either partly or wholly, even

if the complainant has not sought any relief against such third party?

12. Respondents 2 and 3 filed the complaint against the first respondent as

they had made the payments to the first respondent and first respondent had

agreed to construct and deliver them the duplex flat and that the flat

constructed by the first respondent was demolished by the municipal

authorities. The complainants had no grievance against the appellant nor did

they seek any relief against the appellant. The first respondent herein who

was the sole respondent before the District Forum did not seek impleadment

of the appellant as a respondent in the complaint before the District Forum.

The District Forum allowed the complaint and held that the first respondent,
8

as the service provider, was guilty of deficiency of service and directed the

first respondent to pay to the complainants, a sum of Rs.11,80,000/- with

interest. That order was not challenged by the complainants (respondents 2

and 3). The only question that can, therefore, be considered in an appeal by

the first respondent was whether it was liable to pay any amount to

respondents 2 and 3 and, if so the extent thereof.

13. The scheme of the Act does not permit a service provider, who has

been made liable to refund the amount paid towards price under the order of

the District Forum, to file an appeal and pass on a part of the liability to

some third party, on the ground that the contract between them enabled him

to do so. In an appeal by a respondent in a complaint, aggrieved by the order

made in favour of the complainant, the only issue is whether the liability of

the respondent should be upheld, modified or rejected. The question whether

anyone else should be made liable along with the respondent in the

complaint, does not arise. The appeal by a respondent in a complaint has to

be dismissed, if the respondent is liable for the claim. If he has been wrongly

made liable, the appeal will be allowed. The issue in the appeal and the relief

that can be granted in the appeal can be only qua the complainant and not

qua some third party. If a service provider who has been made liable to a
9

complainant wants contribution from anyone else, on the ground that such

third party had also contributed to the deficiency in service, it is for the

service provider to take independent action against such third party, in

respect of the liability. As the complainants neither impleaded nor sought

any relief against the appellant, neither the State Commission nor the

National Commission could make the appellant liable along with the first

respondent.

14. The first respondent contended that when the appellant was impleaded

as the third respondent in its appeal, the appellant did not protest, nor

challenged the order of the State Commission impleading him as a party, but

filed objections to the complaint before the State Commission on merits and

participated in the appeal proceedings and therefore he was estopped from

challenging his impleadment. Being impleaded as a party in an appeal is

different from being made liable by an order in the appeal. A person may not

have any grievance if he is merely impleaded as a party, but may have a

grievance in regard to the impleading, if such impleading led to making him

liable for any payment. When a non-party is impleaded as a respondent in an

appeal, he can either challenge the impleadment itself or challenge his

impleadment, while challenging the final decision in the appeal. The fact

that the impleaded non-party filed objections to the complaint during the
10

pendency of the appeal, on the specific direction of the State Commission,

will not deny his right to challenge the impleadment.

15. This appeal is, therefore, allowed and the order of the National

Commission affirming the order of the State Commission making the

appellant liable jointly with first respondent is set aside. It is, however, made

clear that :

(i) if the first respondent has any claim or cause of action against the
appellant, it is at liberty to seek redressal of its grievances against the
appellant;

(ii) the order of the State Commission affirmed by the National
Commission to the extent it reduces the interest from 18% to 9% per annum
and requiring the respondents 2 and 3 herein to re-convey the flat to their
vendor under the sale deed dated 14.1.2005 is not disturbed; and

(iii) respondents 2 and 3 may draw any amount deposited by the first
respondent towards the amount due under the order of the District Forum as
modified by the State Commission.

   ............................J.
   (R.V. Raveendran)

New Delhi; ............................J.
February 08, 2011. (A.K. Patnaik)