Cause Of Action Cannot Be Generated By Repeated Representations, Right To Claim Must Be Established: Jammu & Kashmir High Court

The observations to this effect were made by a bench comprising Justices Sanjeev Kumar and Puneet Gupta while dealing with a plea filed by Jammu Development Authority (JDA) for quashing an order of the Jammu and Kashmir State Consumer Disputes Redressal Commission which upheld District Forum's direction to JDA to allot a plot in favour of the respondent, who allegedly delayed payment.

JDA had issued an advertisement in 1993 for allotment of residential plots to which the respondent applied by depositing the registration fee. Since the respondent delayed the balance amount, the petitioner JDA asked the respondent to deposit the balance amount representing 90% of the premium by July 8, 1994, failing which he would be liable to pay penal interest and lease deed shall be executed only after that. However, there was no compliance of the conditions by the respondent.

After prolonged delay, the respondent approached the JDA for allotment of the plot in the year 2000 and 2007 by making written representations which were followed by legal notices served on JDA, whereafter the respondent filed a complaint before the District Consumer Forum alleging deficiency of service.

The Forum directed the JDA to allot the plot in favour of respondent subject to come payment, which came to be challenged by the JDA by way of an appeal before the State Commission. The appeal was dismissed for non-prosecution in 2019.

After hearing the counsels for the parties and perusal of record, the Division Bench said the order passed by the Forum is not sustainable in law as the plea of limitation specifically raised by the JDA was not decided by the Forum.

"Forum has noticed the argument of learned counsel for the JDA that the complaint, having been filed after lapse of 22 years after the cause of action, was barred by limitation. However, the Forum has ignored to consider the said plea for the reasons not discernible from the impugned order dated 04.05.2018", the bench recorded.

Elaborating on the necessity of showcasing a cause of action for securing a remedy from the court, the bench observed that the ‘cause of action’ is not something which can be generated by a party by making repeated representations or legal notices as the ‘cause of action’ would mean a situation or state of facts that entitles a party to maintain an action in a court of law or a Tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person.

The Court maintained that the legal notices issued by the respondent reiterating his request for allotment of plot which were not responded to by the JDA were issued only as a precursor to the filing of a complaint and with a view to generate fresh cause of action but such course of action is not permitted in law.

"The “cause of action”, in the instant case, accrued to respondent No.1 immediately after expiry of six months‟ period from the date of offer of allotment of subject plot made to respondent No.1 i.e 08.07.1994. Having failed to accept the offer by complying the conditions laid down in the offer, respondent No.1 lost the right to enter into a contract for granting leasehold rights qua the subject plot by the JDA in his favour."

Pointing out to the erroneous approach of the Forum in entertaining a highly belated complaint filed by respondent particularly when there was no explanation tendered for such delay, the court said that as a matter of fact, the Forum did not even advert to the issue of maintainability of complaint being barred by limitation.

Highlighting the law applicable to the instant matter in terms of Jammu and Kashmir Consumer Protection Act, 1987, the bench underscored that the Commission had no power to dismiss the appeal for non-prosecution and it ought to have adjudicated the appeal on merits, rather than dismissing it for non-prosecution.

Accordingly, the bench allowed the plea and set-aside the impugned order passed by the Forum.

Case Title: Jammu Development Authority Vs Jag Mohan Wazir & Anr.

Citation: 2023 LiveLaw (JKL) 44

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