1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.689 OF 2011. Nirupam Nanigopal Roy ..vs.. Sheetal Baburao Chaudhary - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr.Tushar Mandlekar, Adv. for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. D A T E : MARCH 23, 2011. 1. Heard the learned counsel for the petitioner. 2. By this petition, the petitioner impugns the order passed by the 4 th Jt.Civil Judge (Sr.Dn.), Nagpur on 11/10/2010 rejecting an application filed by the petitioner for dismissal of the suit on eclipse of the cause of action. 3. The petitioner is the defendant in the suit. He had entered into an agreement with the plaintiff, whereby the petitioner agreed to pay a consideration of Rs.5,40,000/- to the plaintiff, a builder for constructing his house. The plaintiff filed a suit for recovery of an amount of Rs.1,17,525/- as according to the plaintiff, though certain construction work was done by the plaintiff, an amount of Rs.1,05,000/- due towards that construction work was 2 not paid by the defendant/petitioner to the plaintiff. The suit was instituted for recovery of the amount of Rs.1,05,000/- with interest and notice charges. 4. It is necessary to note that the petitioner/ defendant had filed a complaint before the District Consumer Forum, Nagpur under Section 12 of the Consumer Protection Act, 1986 as the plaintiff/respondent had not carried out the construction as per the contract and there was a deficiency in service. The Consumer Forum, by the order dated 9 th of April, 2009 partly allowed the complaint filed by the petitioner and directed the respondent/plaintiff to construct the house of the petitioner within a period of three months. The petitioner was asked to deposit the balance amount of Rs.1,95,000/- payable in terms of the contract before the Consumer Forum. The order passed by the Consumer Forum on 9 th April, 2009 is challenged by the petitioner in an appeal before the State Commission. In pursuance of the order passed by the Forum, an amount of Rs.1,95,000/- is deposited by the petitioner before the Consumer Forum and the respondent/plaintiff has also applied for withdrawal of the amount of Rs.1,00,000/-. It is in this background that the application was filed by the petitioner under Section 151 of the Code of Civil Procedure for dismissal of the suit on eclipse of the cause of action due to the subsequent events. According to the petitioner, in view of the order passed by the Consumer Forum, the amount of Rs.1,95,000/- was deposited 3 by the petitioner before the Consumer Forum and the respondent/plaintiff had filed an application for withdrawal of an amount of Rs.1,00,000/-. Since the respondent had applied for withdrawal of an amount of Rs.1,00,000/- and since the plaintiff/respondent had filed the suit for recovery of an amount of Rs.1,05,000/- with interest and notice charges, according to the petitioner, due to the subsequent developments the cause of action for filing the suit had eclipsed. According to the petitioner, the respondent had filed another application before the State Commission for withdrawal of the amount of Rs.1,00,000/- and hence there was no need for continuation of the suit in view of the subsequent developments and the Trial Court committed an error in rejecting the application filed by the petitioner under Section 151 of the Code of Civil Procedure. 5. On hearing the learned counsel for the petitioner and on perusal of the impugned order, it appears that the Trial Court was perfectly justified in rejecting the application filed by the petitioner for dismissal of the suit for eclipse of the cause of action. It is necessary to note that though the Consumer Redressal Forum had directed the petitioner to deposit a sum of Rs.1,95,000/- and further directed the respondent/plaintiff to complete the construction within a period of three months, the petitioner had challenged the order passed by the Consumer Redressal Forum before the State Commission and the order did not attain finality. Thus, the 4 correctness of the order passed by the Consumer Redressal Forum directing the petitioner to deposit an amount of Rs.1,95,000/- before the Consumer Forum with the direction to the respondent/plaintiff to complete the construction within a period of three months is still under challenge. In such circumstances, the mere fact that the respondent/plaintiff had applied for withdrawal of the amount of Rs.1,00,000/- before the Consumer Redressal Forum or the State Commission would not have resulted in eclipse of the cause of action in the suit. In the suit, the plaintiff had come with the categorical case that he had not received the amount of Rs.1,05,000/- for the construction which was already made by the plaintiff. The issue involved in the suit with regard to the non- payment of an amount of Rs.1,05,000/- by the petitioner for the work actually done by the plaintiff, was not an issue before the Consumer Forum. Even assuming that it was, the order of the Consumer Forum has not attained finality as the petitioner has himself challenged the order of the Consumer Redressal Forum in an appeal before the State Commission. Merely because the respondent/plaintiff had filed an application before the Consumer Forum and the State Commission for withdrawal of the amount of Rs.1,00,000/-, it cannot be said that the cause of action for filing the suit stood eclipsed in view of the applications made by the respondent/plaintiff before the Consumer Forum and the State Commission. Not only is the cause of action in both the cases entirely different but the order passed by the Consumer Forum has 5 also not attained finality. In such circumstances, the Trial court was perfectly justified in rejecting the application filed by the petitioner under Section 151 of the Code of Civil Procedure for dismissal of the suit on the ground of eclipse of cause of action. The judgment reported in 1974-EQ (SC) 8 (Shikharchand Jain ..vs.. Digamber Jain Praband Karini Sabha), 2002-EQ (SC), 79 (Om Prakash Gupta ..vs.. Ranbir B.Goyal) and the unreported judgment in SLP No.6392 of 2003 (Bhanu Kumar Jain ..vs.. Archana Kumar and anr.) cannot be made applicable to the peculiar facts of this case. 6. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE chute