OBJECTION FILED BY THE OPPOSITE PARTY TO THE COMPLAINANT’S PRAYER TO TREAT THE COMPLAINT AS EVIDENCE ON AFFIDAVIT

 

DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION KOLKATA UNIT-III(South),West Bengal 18, Judges Court Road, Kolkata 700027

Consumer Complaint no. 226 of 2024

 

                                                         

In the matter of :

 

Smt. Kakali Sen, and Anr.,

                                                                             ________Complainants

 

-      Versus –

 

M/s. S.S. Construction and Anr.

 

                   _________Respondents

 

OBJECTION FILED BY THE OPPOSITE PARTY TO THE COMPLAINANT’S PRAYER TO TREAT THE COMPLAINT AS EVIDENCE ON AFFIDAVIT

 

The Opposite Party respectfully submits this objection to the petition filed by the Complainant seeking to treat the complaint itself as "evidence on affidavit" without placing a separate Evidence on Affidavit, as required under law:

 

1. That the present Consumer Complaint is pending before this Hon’ble Commission and the Opposite Party has already filed its detailed Written Version rebutting and controverting all the material allegations made by the Complainant.

 

2. That the Complainant has now filed an application/petition praying that the Consumer Complaint, which is supported by verification, be treated as evidence on affidavit without filing a separate Affidavit of Evidence.

 

3. That such a prayer is wholly untenable in law and contrary to the express provisions of the Consumer Protection Act, 2019, particularly Section 38(5) which states:

“Every proceeding before the District Commission, State Commission or the National Commission shall be deemed to be a judicial proceeding and the Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of taking evidence on affidavit…”

 

4. That the procedure followed in consumer fora clearly mandates that the complainant, after the opposite party files the Written Version, must place his/her evidence by way of a separate Affidavit, annexing the documents relied upon, which shall be marked as Exhibits.

 

5. That treating the original complaint (which may merely be verified and not sworn as an evidence affidavit) as equivalent to formal Evidence on Affidavit would prejudice the rights of the Opposite Party, particularly when the Written Version has already controverted the factual contentions.

 

6. That there is no provision under the Consumer Protection Act, 2019, or the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, permitting waiver of the Evidence on Affidavit merely on the ground that the complaint is verified. The complaint and the evidence are procedurally distinct and serve different purposes.

 

7. In the case of Maddu Rama v. Vishal Mega Mart, A/28/2023 (Sep 27, 2023) the Telangana State Consumer Disputes Redressal Commission emphasized the importance of filing an evidence affidavit. The Commission noted that the complaint was dismissed for default/non-prosecution without examining the affidavit and documents filed by the complainant. The Commission held that under Section 38(6), every complaint shall be heard on the basis of affidavit and documentary evidence placed on record. Consequently, the matter was remanded back to the District Commission with directions to allow both parties to file their evidence affidavits and dispose of the case on merits.

 

8. That the absence of an Evidence on Affidavit from the Complainant renders the complaint procedurally incomplete, and in such circumstances, no effective adjudication can take place, and the matter cannot proceed to final hearing.

 

 

 

 

 

9. That unless and until the Complainant files proper Evidence on Affidavit, the Opposite Party cannot exercise its right to seek leave for cross-examination (if necessary), or rely on any rebuttal evidence.

 

10. Therefore, it is most respectfully prayed that;

 

1. The Hon’ble Commission may be pleased to reject the Complainant’s prayer to treat the complaint as Evidence on Affidavit;

 

2. Direct the Complainant to file proper Evidence on Affidavit in support of the complaint within a time-bound manner;

 

3. Pass any other order as this Hon’ble Commission may deem fit in the interest of justice.

 

AND FOR THIS ACT OF KINDNESS, THE OPPOSITE PARTY SHALL, AS IN DUTY BOUND, EVER PRAY.

 

 

VERIFICATION

 

I, Sujit Saha, being the O.P. no. 2, in the present consumer proceeding, do hereby verify that the contents of the above objection are true and correct to my knowledge and belief. No part of it is false and nothing material has been concealed therefrom.

 

Verified at Alipore Judges’ Court on this 22^nd day of May’ 2025

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

I, Sujit Saha, Son of Late Sambhunath Saha, aged about 52 years, by faith Hindu, by Occupation Business, residing at Premises being no. A/61/2, Bapuji Nagar, Post Office – Regent Estate, Police Station – Jadavpur, Kolkata – 700092, District South 24 Parganas, do hereby solemnly affirm and says as follows;

 

1.   I am proprietor of the Opposite Party no. 1, M/s. S.S. Construction. I am the Opposite Party number 2, in the present Consumer Proceeding. I am acquainted and conversant with the material facts stated in the objection and competent to swear this affidavit.

 

2.   That the statements of the paragraph no. 1 & 2, are true to my knowledge and belief, and the rests are my humble submissions before the Hon’ble Commission.

 

The above statements are true to my knowledge and belief.

 

 

 

 

DEPONENT

Identified by me,

 

 

Advocate

 

 

Prepared in my Chamber,

 

 

Advocate

Date : 22^nd day of May’ 2025

Place : Alipore Judges’ Court

 

N O T A R Y