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Court No. - 2 Case :- WRIT - C No. - 25969 of 2011 Petitioner :- Mahagun India Pvt. Ltd. Respondent :- District Redressal Forum And Others Petitioner Counsel :- Satish Mandhyan Respondent Counsel :- S.C.,Diptiman Singh,M.M.Tripathi

Hon'ble Ashok Bhushan,J. Hon'ble Naheed Ara Moonis,J.

Heard Shri B. D. Mandhyan, learned Senior Advocate for the petitioner and Shri Diptiman Singh for the respondent no.2. An application for vacating the exparte interim order dated 10.5.2011, has been filed which is being pressed. Learned counsel for the respondents submits that the writ petition was filed challenging the order dated 18.1.2011 and 13.4.2011, passed by District Consumer Forum on a complaint filed by the respondent no.2. By the order dated 18.1.2011 Consumer Forum passed the interim order restraining the defendants from not proceeding with the construction of Convenience Shop and Public Plaza. After the notices were issued to the defendants they have filed objections. By subsequent order dated 13.4.2011 the District Consumer Forum finding a prima facie case issued an interim injunction by allowing the application and restraining the defendants from proceeding with the constructions of Convenience Shop and Public Plaza from more than one storey. Challenging the said orders this writ petition was filed and the petitioner in support of the writ petition contended that the Consumer Forum had no jurisdiction to grant any interim order. Reliance had been placed upon the judgment of the Apex Court in the case of Morgan Stanley Mutual Fund Vs. Kartick Das 1994(4) SCC 225, wherein Apex Court after considering Section 14 of the Consumer Protection Act had laid down that the Consumer Forum has no jurisdiction to grant any interim relief. Relying upon the said judgment the interim order was passed by this Court on

10.5.2011, staying the orders dated 18.1.2011 and 13.4.2011. Learned counsel for the respondent no.2 submits that after the said judgment of the Apex Court in the case of Morgan Stanley Mutual Fund Vs. Kartick Das, the Consumer Protection Act has been amended in 2002 by which Section 13(3-b) was added by the U.P. Act No.62 of 2002 with effect from 13.1.2003 which is to the following effect :- "Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case." In view of the subsequent amendment made in the Consumer Protection Act, 1986, the Consumer Forum have jurisdiction to pass interim order. In view of the aforesaid provisions which was regrettably not brought into the notice of the Court when the interim order was passed, the very foundation of the passing of the interim order falls on the ground. In view of the aforesaid we are satisfied that sufficient cause have been made out to recall the order dated 10.5.2011, which is hereby recalled. Learned counsel for the petitioner has filed amendment application praying for amendment in the petition. He submits that the stay application be again heard after permitting the amendment in the petition, his prayer is allowed. Within three days the respondents may file reply to the amended pleadings, thereafter the stay application be heard.

Put up on 23 rd August, 2011. The stay vacation application is allowed. The interim order dated 10.5.2011 is recalled.

Order Date :- 12.8.2011 Mustaqeem.