The discretion in evidential procedures belongs to the complainant, who may choose the mode of evidence, and jurisdictional issues settled cannot be reargued in execution proceedings.

Per Hon’ble Mr. Mukesh V. Sharma, Member

1. These two Revision Petitions – RP No. 24/9 and RP No. 24/19 – arise from Execution Application No. EA/10/146 filed before the District Consumer Disputes Redressal Commission, Thane, in Complaint Case No. CC/09/658. The Petitioners, Shree Krupa Builders, have filed RP No. 24/9 challenging the order rejecting their application for recording oral evidence of the complainant and RP No. 24/19 assailing the rejection of their discharge application. As both petitions emanate from the same proceedings and challenge orders passed on the same date i.e. 27/12/2023, they are being decided by this common order.

2. In the first petition, the Petitioners contend that on 28/04/2017, the District Commission had noted an accord for recording the complainant’s oral evidence. It is their case that this stage was never fulfilled due to subsequent adjournments and the pandemic-related delays. Advocate argued that the Commission later shifted to the cross-examination stage without recording examination-in-chief, which they believe was contrary to the process earlier contemplated.

3. The Petitioners argued that an affidavit-in-evidence, already filed by the complainant, could not substitute formal oral testimony in light of the earlier procedural commitment. They asserted that their application for oral evidence was rejected without considering the Roznama entries, and without providing reasons in accordance with law. It is argued that the rejection deprived them of a meaningful opportunity to contest the complainant’s claims.

4. In the second petition, the Petitioners seek discharge on the ground that the Respondent Society is neither a “consumer” under Section 2 (1)(d) of the Consumer Protection Act, 1986 nor a “voluntary consumer association” under Section 12 (1)(b). It is argued that the complaint itself was not maintainable, and any order arising from it is without jurisdiction.

5. It is also submitted that the execution has remained pending for an unreasonably long time – over fifteen years – and that the original order was passed ex parte without granting the Petitioners full opportunity to defend. They assert that jurisdictional objections can be raised at any stage, including at the stage of execution, and hence their application for discharge ought to have been allowed.

6. The Respondent Society contended that an affidavit-in-evidence had already been filed on 30/04/2016 and was duly taken on record. Advocate emphasized that the case was thereafter listed repeatedly for cross- examination, and the Petitioners never raised any objection until much later. Repeated adjournments were taken on pretexts of settlement and other procedural grounds. Thus, the Respondent argued, the oral evidence stage was effectively over, and there was no cause to re-open it in 2023.

7. Advocate for Respondent / Org. Complainant referred and relied upon the Hon’ble National Consumer Disputes Redressal Commission in Ramesh G. Kohali vs. Shivanand Shanbag ( Execution Appeal No. 105 of 2019, decided on 09.01.2020 ).

8. The Respondent also pointed out that the same issue of maintainability was raised earlier and decided by dismissal of the discharge application dated 16/03/2018. That order was upheld by this Commission on 20/02/2019. The Petitioners even approached the National Commission but withdrew their petition without obtaining any relief. Hence, the matter has attained finality. The present discharge plea is nothing but a repetition of earlier contentions, already ruled upon, and is not maintainable.

9. Advocate lastly submitted the original order dated 20/03/2010 directing the execution of a conveyance deed has neither been set aside nor stayed till date. There has been part compliance, and the proceedings have been dragging due to the Petitioners’ evasive conduct. Execution proceedings cannot revisit settled issues under the guise of fresh objections. The attempt to reopen jurisdictional issues at this belated stage, fift