Cross-examination is not a rule but an exception in consumer protection cases, and it should be permitted only in specific circumstances to prevent the loss of the Act's objective.

ORDER

Rakesh Saksena, J.—Petitioner/opposite party has filed this revision against the order dated 16.7.2013 passed by District Forum, Indore in CC No. 318/2008 where by the application filed by the petitioner under Order 19, Rule 1 and 2 read with section 151, CPC for cross-examination on the affidavits of complainant has been dismissed.

2. In short, the facts of the case are that respondent/complainant booked a plot in petitioner/Society. According to complainant, the rate of land was Rs. 125/- per sq.ft.. For the plot of 30 x 50 sq. ft. the price was therefore, Rs. 1,87,000/-. Out of this amount, he had deposited Rs. 1,10,000/- in the petitioner/Society and only Rs. 77,000/- were due to be paid for registration of the plot. Since the Society failed to execute the sale deed, complainant approached to Forum.

3. The petitioner/opposite party contested the complaint stating that the rate of land was Rs. 200/- per sq. ft. The cost of plot was Rs. 3,00,000/-, but since complainant deposited only Rs. 75,052/- he was deprived of the lots drawn for allotment of the plot. Despite notice, complainant paid no amount therefore, his membership was cancelled and he was asked to receive the deposited amount after due deductions.

4. On 30.4.2013 petitioner/opposite party filed an application seeking cross-examination on the affidavits filed by the complainant, but the said application was dismissed by the Forum on the ground that there was no direct or indirect ambiguity or uncertainty in the affidavits therefore, it was not necessary to grant permission to petitioner for cross-examination.

5. Learned counsel for the petitioner placing reliance on the Division Bench decision of the National Commission rendered in case of Cellular Operators Association of India & Anr., ICICI Bank, American Express Bank Ltd. v. Nivedita Sharma & Ors., IV (2013) CPJ 265 (N.C.) submitted that when a party insists that he wants to cross-examine deponent on affidavit to prove that affidavit cannot be relied upon, natural justice requires that permission to cross-examine witness should be given since Consumer Fora have to settle dispute on the basis of evidence adduced by the parties. Learned counsel submitted that the complainant had given statements in the affidavits against the documents in respect to cancellation of his membership hence, for just decision of the case it is necessary that petitioner should be permitted to cross-examine the complainant on his affidavit.

6. On perusal of order sheets of the District Forum, it appears that when petitioner/opposite party amended his reply, the complainant filed affidavit dated 21.12.2012 in rebuttal. To rebut that affidavit petitioner also filed affidavit dated 25.2.2013. But when the case was fixed for final arguments on 30.4.2013, the petitioner moved application for cross-examination on the affidavits stating that complainant had submitted affidavits on false grounds.

7. In case of Con Décor v. Smritikana Ghose & Another, 2002 (3) CLT 516 a three Member Bench of the National Commission placing reliance on Supreme Court's judgment rendered in State of Jammu & Kashmir v. Bakshi Ghulam Mohammad, (1996) Supp. SCR 401 held :-

"14. We would, therefore, hold that cross examination of a witness or a party before forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practitioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act