A forum must assess the maintainability of a complaint against parties without cause of action before proceeding with the case.

JUDGMENT

The first respondent filed a complaint before the Idukki District Consumer Disputes Redressal Forum for compensation for the death of his wife on the allegation that her death was due to the negligence of two doctors (respondents 4 and 5 in the complaint) of a hospital in Kottayam district, the Managing Director of which is the third respondent in the complaint. The petitioners are respondents 1 and 2 in the complaint. On receiving notice from the forum the petitioners filed an application before the forum to delete them from the party array on the ground that the complainant/respondent has no cause of action against them and they are unnecessary parties and they have been made parties only to make the complaint maintainable in the Forum in Idukki District within whose jurisdiction the respondent/complainant resides. The forum has refused to consider it.

2. Heard learned counsel on both sides.

3. The hospital where the death of the respondent's wife took place is situated in Kottayam district. The doctors concerned are residents in Kottayam district. The complaint was filed in Idukki district. The third respondent is the Managing Director of the hospital. The hospital belongs to a community of nuns. The first petitioner is mother superior of a convent in Idukki district and the second petitioner of a convent in Kottayam district. Their specific allegation is that apart from the fact that they are also members of the community of nuns to which the hospital belongs and mother superiors of two convents of that community they have nothing to do with the hospital. The authority who is responsible for the conduct of the hospital is the third respondent and merely because the petitioners are members of the community of the nuns to which the hospital belongs they cannot be made parties to the complainant. It is also alleged that the first respondent has been made a respondent in the complaint only to make it maintainable in the District Forum of Idukki district. The forum refused to take into consideration their contentions and it made the following observations:

“The involvement of opposite parties can be decided on merits. Hence it is not right and fair to decide whether the opposite parties 1 and 2 are the necessary parties in the complaint at this stage.”

4. Maintainability of this petition under Article 227 of the Constitution is challenged by the respondent. The argument is that the order which is assailed in this petition is an appealable one under Section 15 of the Consumer Protection Act . Reliance is placed on the decision of the Supreme Court inNivedita Sharma v. Cellular Operators Assn. of India and others(2011(14) SCC 337). The said decision the Supreme Court held that it is not proper for the High Court to entertain a petition under Article 226 or 227 of the Constitution in view of the fact that the party concerned has a right of appeal.

5. But here is a case where the Forum has refused to pass an order. It is the failure of the Forum to discharge its function that is assailed and not an order passed by it. Section 15 of the Act is not applicable. The failure of the forum to exercise the jurisdiction vested in it can be questioned under Article 227 of the Constitution.

This original petitioner is maintainable.

6. The Forum is expected to be just and fair to every party.

When a respondent brings to its notice that he/she has been made a respondent with the malicious intention of making the complaint maintainable before that particular Forum and the complaint does not reveal any cause of action against him, it is its bounden duty to determine immediately the question of maintainability of the complaint before any other step is taken in the proceedings. I am shocked by the callous approach of the Forum, which is nothing but unjust. It should discharge its function with promptness and sense of responsibility. It should not have asked the petitioners to wait till the enquiry is over unmindful of the hardship that may be ca