—Order— —By this appeal under sec. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) (which for the sake of brevity will be hereinafter referred to as "the Act"), the opposite party-appellant questions the correctness of the order dated 17-1-89 passed by the District Forum, Bikaner in Complaint Case No. 7 of 1989. 2. For the sake of conveniences, the respondent and the appellant will be referred to herein as the complainant and the opposite party respectively. 3. The Principal, B.J.S. Rampuria Jain College, Bikaner sent a letter (complaint) to the District Forum Bikaner. It is dated 29-10-88. It was a complaint regarding Photo Copier (Photostat) Machine Canon PC 24. It was stated in the letter that a Photo Copier machine was purchased by the complainant on 25-5-88 from the opposite party; that it was repaired sometimes; but despite that the machine was not in workable condition; that various letters were addressed to the opposite party in this connection but did not yield the desired result; that the cost of the machine is Rs. 70,000/ and that as it was not working properly, there was direct breach of faith and contract as per the guarantee and warranty. It was prayed that a direction may be issued to the opposite party either to replace the machine Canon PC-24 or to refund the amount which was received by it. Photo copies of the letters and the telegram which were sent to the opposite party from time to time, were also enclosed with the complaint. Besides these, photostat copies of the customers service record, bills etc. were also submitted. , The complaint was registered and a notice was ordered to be issued. In compliance of the notice, the representative Shri Pradeep Mehta of the opposite party appeared and filed some documents (correspondence). It did not file version of the case in detail but in reply (letter dated 5-12-88) submitted that disputes regarding items sold are to be contested in Delhi Courts. Copies of invoices were also submitted alongwith it. It appears that the opposite party did not appear on 15.12.88 and it was ordered by the two members of the District Forum that the opposite party may be summoned by bailable warrant in the sum of Rs. 500/-. Thereafter the District Forum thought proper to appoint a commissioner for the inspection/examination of the Photo Copier machine. It appears that the opposite party did not appear on 15.12.88 and it was ordered by the two members of the District Forum that the opposite party may be summoned by bailable warrant in the sum of Rs. 500/-. Thereafter the District Forum thought proper to appoint a commissioner for the inspection/examination of the Photo Copier machine. One Mahendra Kumar, Junior Copyist of the District Court, Bikaner was appointed as Commissioner and he was directed to submit his report before 5.1.89. It was stated in the order that Mahendra Kumar can take assistance of any other person, if he so likes. Shri Mahendra Kumar submitted his report regarding the Photo Copier machine, amongst others it is stated as under (English translation of Hindi version is given) :— "On examination it was found that the position of the machine was as follows :— (1) Photostat Companys machine Model No. is P.C. 24, and machine No. is M/N.O./0029. (2) When the machine was operated it was found that it was giving out defective papers. (3) That the prints of the machine are not clear. (4) That the rubber belt and spring are defective. (5) That the machines maintenance is proper. (6) That the mechanical condition of the machine can be told by the mechanic. (7) On being examined, whatever defect came on the paper, photocopy taken out of the machine is attached with this report as proof." Thereafter, the District Forum took certain documents filed by the complainant on record. By order dated 17-1-89, the District Forum directed the opposite party to replace the Photo Copier Machine Canon PC-24 by Canon PC-25 and install it or refund Rs. 62,500/- of refund the entire amount received by it from the complainant with interest alias 12% p.a. from the date of receipt of the amount, within two months. A direction was also given that for installation of the machine, the responsibility will be that of the opposite party. The District Forum also directed that the opposite party should pay to the complainant a sum of Rs. 5000/- as compensation for the loss suffered by the complainant due to the negligence of the opposite party. 4. It appears that Smt. Rama Tiku, Member, District Forum, Bikaner participated in the proceedings from time to time, but she did not participate on 17-1-89 when the proceedings were held and the order under appeal was passed. 5000/- as compensation for the loss suffered by the complainant due to the negligence of the opposite party. 4. It appears that Smt. Rama Tiku, Member, District Forum, Bikaner participated in the proceedings from time to time, but she did not participate on 17-1-89 when the proceedings were held and the order under appeal was passed. It is against the order dated 17-1-89 that the opposite party has filed this appeal on 8-3-89 as aforesaid. 5. The appeal was accompanied by an application for condonation of delay in filing the appeal. An affidavit in support of the same was also filed. The appeal was ordered to be registered subject to all just exceptions. 6. The complainant has filed written submissions to support the order under appeal, inter alia, raising certain preliminary objections. 7. We heard Mr. Pawan Choudhary, Advocate for the appellant and Mr. R. L. Jain, Lecturer, an authorised agent of the respondent. 8. A preliminary objection was raised that the appeal was barred by tune as it has been presented after the expiry of 30 days from the date of the order and therefore, it should be rejected. In the affidavit, filed by Shri Pradeep Mehta, it was stated that the order was passed on 17-1-89 and it was received by ordinary mail on 18-2-89 and so the appeal was submitted within 30 days from the date of the receipt of the order as it was filed on 8-3-89. The affidavit does not contain correct facts. It appears from the record that the copy of the order was sent to the opposite party by a registered letter dated 9-2-89 and it was received by it on 13-2-89 and the appeal was filed on 8-3-89. The appeal was not filed within thirty days from the date of the order but it was filed after 23 days after the receipt of the order. The order was not passed in the presence of the opposite party. It got knowledge of the order on 13-2-89 when it received it. In these circumstances, the delay has been satisfactorily explained. In the facts and circumstances of the case, there appears to be sufficient cause for not filing the appeal within thirty days from the date of the order. Even if there is any delay, it is condoned. There is, thus, no substance in the aforesaid preliminary objection and it is consequently rejected. 9. In the facts and circumstances of the case, there appears to be sufficient cause for not filing the appeal within thirty days from the date of the order. Even if there is any delay, it is condoned. There is, thus, no substance in the aforesaid preliminary objection and it is consequently rejected. 9. It appears that after the filing of the written submissions, the Principal of the College had sent an inland letter on 13.4.89 stating, inter alia, that "if you will ask the consumer to come to Jaipur, the very purpose of the Consumer Protection Act, will be forfeited .. ..A college complained to the District level body and they have given judgement now why should college be asked to defend the judgement given by the court .. .." We are not happy with such a letter and strongly depreciate such a practice. 10. Mr. Pawan Choudhary argued that the District Forum had no jurisdiction to entertain the complaint in view of sec. 11 (2) of the Act, for, the opposite party resides and carries on normal business in Delhi and the cause of action had arisen in Delhi when the order was placed and that the parties entered into an agreement through sale invoice Anx. B, according to which the jurisdiction was specifically agreed to be at Delhi. We have carefully considered this submission. Sec. 11 of the Act deals with the jurisdiction of the District Forum. We are not concerned with Sec. 11 (1) of the Act. Sec. 11(2), inter alia, provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the cause of action wholly or in part arises. In this contract,with regard to the supply and installation of Photo Copier machine a part of cause of action has arisen in Bikaner as it was supplied and installed at Bikaner. The contract was performed at Bikaner and so the District Forum, Bikaner had jurisdiction to entertain it. Even otherwise, this objection cannot be entertained at the appellate stage, for, the opposite party has failed to show that there has been a consequent failure of justice. The argument of the learned counsel for the appellant that the District Forum, Bikaner had no territorial jurisdiction to entertain the appeal, is therefore, repelled. 11. Even otherwise, this objection cannot be entertained at the appellate stage, for, the opposite party has failed to show that there has been a consequent failure of justice. The argument of the learned counsel for the appellant that the District Forum, Bikaner had no territorial jurisdiction to entertain the appeal, is therefore, repelled. 11. The case of the opposite party is that it received the order from the complainant regarding plain paper Photo Copier machine Canon PC-25 in April, 1988, which was responded by it. The opposite party informed that the model PC-25 is not being manufactured and instead a better model PC-24 is available with the opposite party. It was, thereafter, that the opposite party delivered the model Canon PC-24 and while delivering it, a challan no. 983 dated 13-5-88 was duly signed by the Principal of the College in which Canon PC-24 is mentioned. The machine (PC-24) with standard accessories viz. black cartridge etc. was received by the complainant, Thereafter, the bill was raised and it was after complete satisfaction and acceptance of the machine, the payment of price of the machine was released on 21.5.88. A photostat copy of the Customers Service Record has also been placed on record which shows that machine Canon PC 24 was installed on 19-5-88 and the customer has written that it is O.K. The last endorsement on the service record is that of 6.10.88, in which it is, inter alia, written that the machine is now working properly. The District Forum has found that the opposite party had supplied Canon PC-24 though order was placed for Canon PC-25 and thus, it committed breach of the contract and ordered that Canon PC-24 should be replaced by Canon PC-25. The first question, that therefore, arises is whether there was any jurisdiction for the aforesaid direction. It is correct that the order was for Canon PC-25 and the supply was that of Canon PC-24. The opposite party had informed that model Canon PC-25 is not available and that a later model Canon PC-24 was available which is better one. It was, thereafter that delivery was made of Canon PC-24 with standard accessories. In the delivery card, it is specifically mentioned that the model supplied is Canon PC-24. It is signed by the Principal of the College (complainant). Invoice specifically makes a mention of Canon PC-24 with standard accessories. It was, thereafter that delivery was made of Canon PC-24 with standard accessories. In the delivery card, it is specifically mentioned that the model supplied is Canon PC-24. It is signed by the Principal of the College (complainant). Invoice specifically makes a mention of Canon PC-24 with standard accessories. It is also signed by the Principal (complainant). After the installation, when the objection was raised that Canon PC-25 should have been supplied, which has not been done, the opposite party specifically wrote a letter to the complainant dated 28-5-88 stating that, "in case you feel that this is not as per your requirement there should be no problem about taking back this machine. However, I think our Delhi office would respond to you directly on the subject—PC-24 is latest model whereas Canon PC-25 is earlier product." Even thereafter, as appears from the customers service card instead of returning Canon PC-24, the complainant got it examined from time to time until 6.10.88. There was a warranty of three months from the date of the first installation, to be maintained by the sellers technical personnel. The warranty covers all components that become defective due to faulty workmanship and that too was subject to proper use of the machine in accordance with the instructions given in the operating manual. The complainant accepted the Photo Copier Canon FC-24, got it installed and used it from 19-5-88 and onwards. The complainant was quite aware that it has been supplied Canon PC-24 and not Canon PC-25 as the former is, mentioned in the delivery challan, invoice and customer service record. By letter dated May 28, 1988 the opposite party apprised the complainant "about taking back this machine", but the complainant did not return it. It is well settled that a party who seeks the assistance of the court is not entitled to approbate and reprobate or blow hot and cold as it is sometimes put. The complainant had an option to choose Canon PC-24 or to reject it. The complainant made its election, subsequently it could not retract. The election became final and how could the District Forum subsequently alter it by giving a direction for replacing it by Canon PC-25. Besides that there was acquiescence on the part of the complainant as the complainant was content by not returning Canon PC-24. The complainant made its election, subsequently it could not retract. The election became final and how could the District Forum subsequently alter it by giving a direction for replacing it by Canon PC-25. Besides that there was acquiescence on the part of the complainant as the complainant was content by not returning Canon PC-24. It is well established that acquiescence is implied if a person is content not to oppose irregular acts which he knows are being done, then there is a reasonable belief that he consents to it and so has no more right to challenge. Where a person concerned has the choice of two rights either of which he is at liberty to adopt and hot both and if he adopts the one, he cannot afterwards assert the other. We are therefore, of the opinion that when the complainant had accepted the machine Canon PC-24, though it placed the order for Canon PC-25, the complainant is estopped from raising such an objection. Therefore, the District Forum was not justified in ordering for the replacement of the Canon PC-24 by Canon PC-25. 12. The second question is whether the Photo Copier Canon PC-24, was defective and suffered from the defects specified in the complaint. It may be recalled that the District Forum appointed a Junior Copyist as Commissioner to report about the machine and on the basis of the report submitted by Shri Mahendra Kumar, Junior Copyist held, that it suffered from the defects pointed out by him. Shri Mahendra Kumar is a Junior Copyist of the District Court,Bikaner. He was appointed as Commissioner for (English translation of Hindi version) " ..examining the working of the photostat machine and its mechanical condition and to submit report about the same to the forum .." Shri Mahendra Kumar, as appears from his report, did not avail of any services of any other person for the aforesaid purpose. A perusal of the report itself shows that the Commissioner did not direct himself whether there was any mechanical defect in Canon PC-24 and despite repairs, as warranty period has already expired, they could not be set in order or that its working was defective and the defects were of such a nature that they could not be rectified. The Commissioner himself has reported, as stated above that (English translation of Hindi version): "6. The Commissioner himself has reported, as stated above that (English translation of Hindi version): "6. That the mechanical condition of the machine can be told by the mechanic only." 13. This report of the Junior Copyist, in our opinion, should not have been made the basis of the order under appeal. The District Forum should have appointed a specially skilled person in Photo Copier to inspect and examine Canon PC-24. A person to be appointed or the purpose ought to have been a technical person who is acquainted with the components and workmanship of the Photo Copier. The report ought to have been made (1) whether all or some of the components are defective, (2) whether the machine has become defective due to faulty workmanship, (3) whether the defects are of such a nature which cannot be rectified and the entire machine requires to be replaced, (4) whether the defects have occurred due to non-maintenance of routine jobs and (5) what are the likely causes of the defects, if any, in the machine and how can they be rectified? We are firmly of the opinion that the District Forum should not have acted on the report of Shri Mahendra Kumar, Junior Copyist and the order made on its basis cannot be sustained. The District Forum is directed to appoint a technical person to inspect and examine Canon PC-24 and also to report in respect of the matters enumerated hereinabove. The parties should be given an opportunity to offer their comments on the report so received. The District Forum did not consider the entire material that was placed by the parties on record in connection with the defects of the machine Canon PC-24 and or that it was malfunctioning. It should have considered the entire relevant material bearing on the aforesaid questions in respect of the defects pointed out by the complainant in the complaint. The District Forum did not consider the entire material that was placed by the parties on record in connection with the defects of the machine Canon PC-24 and or that it was malfunctioning. It should have considered the entire relevant material bearing on the aforesaid questions in respect of the defects pointed out by the complainant in the complaint. Sec. 13(2) of the Act reads as under :— "(2) The District Forum shall, if the complaint received by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any service,— (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum ; (b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum shall proceed to settle the consumer dispute,— (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum." According to it, the District Forum is required to settle a consumer dispute on. the basis of the evidence brought to its notice by the complainant or opposite party. The procedure laid down in Sec. 13(2) of the Act was not followed by the District Forum. 14. For the reasons aforesaid, the order and directions given by the District Forum, Bikaner in the order under appeal cannot be sustained., 15. The result is that this appeal succeeds. The appeal is allowed and the order dated 17-1-89 passed by the District Forum, Bikaner is set aside. 16. The case is remanded to the District Forum, Bikaner to decide the complaint afresh in accordance with the law keeping in view the observations and the directions made in this order. The result is that this appeal succeeds. The appeal is allowed and the order dated 17-1-89 passed by the District Forum, Bikaner is set aside. 16. The case is remanded to the District Forum, Bikaner to decide the complaint afresh in accordance with the law keeping in view the observations and the directions made in this order. Parties shall bear their own costs of this appeal.