Here two cases are given for study and understanding of the situation and what the Apex court thinks about the situation.
CMP.NO.09 /2009 IN COP.NO. 59 / 2006
DATED THIS THURSDAY THE 5TH DAY OF NOVEMBER 2009
1. A.P.Sundaramoorthy,
2. S.Sakthivel,
3. S.Murugaraj,
4. S.Bhuvaneswari,
All residing at
No.5, K.N.P.Street,
Elampillai, Salem-2. Petitioners / Complainants
-vs-
1. Salem Polyclinic
rep by Dr.K.N.Rao,
2. Dr.B.Radhakrishna, M.D.
Salem Polyclinic,
Department of Medicine &
Pain Management,
266, Omalur Road,
Salem 636 007. Respondents / Opposite parties.
Petition filed by the petitioner praying to restore the complaint which was dismissed for default on 14/6/2007 and this petition coming before us on 02.11.2009 in the presence of Mr.R.Gunasekaran, Counsel for the petitioner and Mr.R.Srinivasan, Counsel for the first respondent and Mr.C.Subramaniyan, Counsel for the 2nd respondent and after hearing of Mr.R.Gunasekaran, for petitioner and Mr.R.Srnivasan, for first respondent and Mr.C.Subramaniyan, for 2nd respondent, this forum passed the following :
ORDER
1. The gist of the Affidavit filed by Thiru.R.Gunasekaran, Advocate for the petitioners:
Thiru.R.Gunasekaran, Advocate for the petitioners on 14.6.2007 after reaching this forum, felt uneasy with head ache and giddiness and vomiting sensation and so he has handed over the case bundle in CC 59/2006 to his colleague advocate Thiru.G.Shiva shankar and requested him to receive the written version, if any, filed by the opposite parties and to note down the next hearing date. He has also told him to inform the Hon’ble forum that he has
already furnished copies of all documents as well as copy of the complaint at the time of filing the complaint itself. But, Thiru.G.Shiva shankar told him that his personal case, as well as the senior cases were also posted on that date and he assured him that he will inform him about the proceedings.. On the same day evening, Thiru. G.Shivashankar contacted Thiru.R.Gunasekaran and informed him that he could not note the hearing date because he did not hear the case in Cc 59/2006 being called.
2. As Thiru.R.Gunasekaran, Advocate for the petitioner was unwell, he could not able to come to this forum’s office for the next one week to verify the diary. Only on 21/6/2007, he came to the forum’s office and verified the diary. He was shocked to find that the case was dismissed for default on 14/6/2007, on the ground that there was no representation on the side of the complainant and on the ground that copies of documents were not furnished to the opposite parties.
3. But, the copies of all documents along with copy of complaint were furnished to enable the opposite parties to answer the claim of the complainants. There is no provisions as per law to file a memo by the opposite parties to direct the complainants to furnish the copies of documents. If the opposite parties wants copies of documents they can very well file a copy application. The opposite parties, using this as an excuse, have not filed their written version within 15 days as requited under sec.13 (2) of Consumer Protection Act, 1986. The complainants have a good case on merits. Unless this petition is allowed and the complaint is restored to file, the petitioners will be put in to irreparable loss and hardship. Hence, it is prayed to restore the complaint to the file which was dismissed for default on 14/6/2007.
4. The Gist of the supporting affidavit filed by Thiru.G.Shivasankar, Advocate.
Thiru.G.Shivasankar, Advocate has stated that on 14.6.2007 when he was present in this forum, his colleague advocate Thiru. R.Gunasekaran told him that he was feeling uneasy with head ache and giddiness and vomitrting sensation, and handed over the above case bundle and requested him to receive the written version, if any, filed by the opposite parties and also to note down the next hearing date. He has also stated that Thiru.Gunasekaran requested him to inform the forum that he had already furnished all copies of the documents along with the complaint copy at the time of filing the complaint itself. He has
further stated that on that date his personal case and his senior’s cases were also posted in the forum, but he did not hear the case in CC 59/06 being called and so he could not note the next hearing date and he has informed the same fact to Thiru.R.Gunasekaran.
5. The gist of the counter filed by the first respondent :
The averments contained in the affidavit are not admitted as true . The applications under Rule 9 of CPC is not applicable to the Consumer Protection Act and this petition is liable to be dismissed inliminie. As per the judgement of Hon’ble Supreme Court reported in 2000 (1) CTC page 735 between New India Assurance Company Ltd –vs- R.Srinivasan, the District forum has no power to set aside the exparte order. The complainant is liable to furnish copies of complaint and documents filed to the opposite parties. Only on receipt of the copies of the complaint with all documents filed by him, the opposite party can effectively repudiate the claim. But, in this case, only the copy of the complaint was served on the first opposite party. After entering appearance through his lawyer, on verification before the district forum, it was found 83 documents have been filed along with the complaint. But, copies of such documents were not furnished to this respondent and they were also not available before this forum.
6. Hence, a memo was filed before this forum on 7.2.2007 on behalf of the first respondent stating the above fact and also for a direction to the complainants to furnish copies of the documents to the first respondent. Even after filing of the memo, the complaint was adjourned from 2.3.2007 to 29.3.2007 ,16.5.2007 and 14.6.2007 directing the complainants to furnish copies to the respondent. But, the copies were not furnished by the complainants and there was no representation on 14.6.2007, nor were the complainants present. So, the complaint was dismissed for default, for non compliance of directions.
7. It is not correct to say that counsel had entrusted the case file to another advocate for representation and on that date the case was not called in open court. With a view only to harass the respondent, this application has been filed by the petitioners. There is no merit in the petition. No cause of action for filing this petition. Hence, it is prayed to dismiss the petition with costs.
8. The gist of the counter filed by the 2nd respondent is follows :
The petition is false, frivolous, vexatious and unsustainable on law and on facts. It is false to say that on 14.6.2007 petitioners’ counsel reached this forum and felt uneasy with headache and giddiness and vomiting sensation and so he handed over the case bundle to his colleague Mr.G.Sivasankar who was present and requested him to receive the written version, but the case was not called. It is also false to say that the counsel for the petitioner came to know the dismissal order only on 21.6.2007. It is false to say that there is no provision as per law to enable the opposite party to file a memo to direct the complainant to furnish the copies of documents. On 14.6.2007 on the representation of the petitioner’s counsel, the case was passed over by this forum for furnishing the copies of documents to this respondent till 4.p.m.. But the petitioners’ have not taken any steps to furnish any documents and so the case was dismissed for default on the same date. The allegation stated in supporting affidavit filed by Thiru.Sivasankar are also false. It is false to say that on 14.6.2007 he was present before this forum on behalf of the petitioner’s counsel. It is also false to say that advocate Thiru.Shivasankaran was waiting before this forum for other cases also, as mentioned in the affidavit. There was no representation at the time of calling at 4.00 p.m. on 14.6.2007. This petition is not at all maintainable in law as described hereunder:
(a) as per law, the Advocate has no right to file this affidavit.
(b) This petitioners’counsel came to know the dismissal order on 14.6.2007 but he has filed this petition only on 22.6.2007.
(c) The petitioners’ have not filed their objection in the memo filed by the first opposite party, if so bound and duty to furnishing the documents to this respondent.
(d) The Hon’ble forum has passed an order on merits, only remedy the petitioner prefer a revision.
(e) This petitioner have not obeyed the order by this Hon’ble forum.
(f) The petitioners’ counsel has not produced any document to prove his illness.
9. The petitioner’s counsel have filed this petition only to dragon on the proceedings and so it may be dismissed with costs.
10. Both side Arguments heard. Records perused.
11. The points for consideration is : Whether this petition filed by the
petitioners can be allowed or not?
12. POINT: The learned counsel for the petitioners argued that the orders of this forum dismissing the complaint is not valid in the eye of law as the case was not posted for examination of any witness or petitioners on 14.6.2007, but the case was posted only for filing of written version by the opposite parties. He has also argued that the filing of memo by the opposite parties to direct the complainants to furnish the copies of all documents to the opposite parties is also not valid and there is no provision in the Act for filing such memos. The learned counsel further argued that this petition Order 9 Rule 9 was filed within the stipulated period of 30 days and this may be allowed. He has further argued that on extreme circumstances, the counsel on record may request his colleague advocate to represent the case on behalf of him, before this forum. The learned counsel vehemently argued that though there is no provision in the Consumer Protection Act, 1986 for filing such petition, as per the order of the various Hon’ble State Commissions this petition may be entertained and suitable orders may be passed. The learned counsel for the petitioner contended that the latest circular issued by the Hon’ble State Commission, Chennai may be considered and this petition may be allowed, as prayed for. The learned counsel concluded that the decision of the apex court reported in AIR 2000 SUPREME COURT 941in the case of New India Assurance Co.Ltd –vs- R.Srinivasan” may be followed and this petition may be allowed as prayed for.
13. But the learned counsel for the respondents 1 & 2 argued that as per the Consumer protection Regulations issued by the Hon’ble National Consumer Disputes Redressal Commission, the copies of complaint along with copies of documents shall be served upon the opposite parties as per the Regulations 10 (5). He has further argued that in this case, the complainant has not filed the copies of documents along with the complaint and so the copies of the complaint alone was served on the opposite parties and the copies of documents were not served to the opposite parties and so the first opposite party was forced
to file a memo to direct the complainant to furnish the copies of documents. But, inspite of the directions given by this Forum, the complainant have not come forward to furnish the copies of documents and as there is no representation on 14.6.2007 the complaint was dismissed for default. The learned counsel for the opposite parties vehemently argued that as per Regulations 26, the provisions of Civil Procedure Code are not applicable to the Consumer forum and so this petition under Order 9 Rule 9 of Civil Procedure Code is not maintainable and this petition is liable to be dismissed.
14. The learned counsel drawn the attention of this forum to the decision of our Hon’ble Supreme Court reported in III (1999) CPJ (1) (SC) and argued that the Hon’ble Supreme Court has held that there is no provision for setting aside the exparte order or restoration of complaint which was dismissed for default and prayed this petition may be dismissed with costs.
15. It is true that there is no provision in the Consumer Protection Act, 1986 for filing this kind of petition under Order 9 Rule 9. As pointed out the counsel for the respondent as per Section 22 A of the Consumer Protection Act, only the Hon’ble National Commission is empowered to set aside the exparte order passed by the Hon’ble National Commission. But, the decision of our Apex court in Srinivasan’s case reported in 2000 CTJ 1123 (SC) (CP), the decision of our Hon’ble High Court reported in 2008 3 Law weekly P838, the order of our Hon’ble State Consumer Disputes Redressal Commission, Chennai in A.P.No.656/99 with CMP No.259/2008 and the orders of some other Hon’ble State Commissions are in favour of entertaining such petitions.
16. The Hon’ble Supreme Court of India has decided in III (1999) CPJ 1 (SC) in the case of “Jhotsana Arvind Kumar Shah & Others -vs- Bombay Hospital Trust and held that,
“ Consumer Protection Act, 1986 – Sections 17,24 – Setting Aside Ex parte Reasoned Order : No jurisdiction vested with State Commission If law does not permit respondent to move application for setting aside ex parte order, order of State Commission setting aside exparte order cannot be sustained – No provision inAct enabling State Commission to set aside ex parte order.” The Hon’ble Supreme Court further held that, “The order of the State Commission setting aside the exparte order was one without jurisdiction, we cannot sustain the same”.
17. So, from the above decision of our apex court it is clear that the Hon’ble State Commission or District Consumer forum are not empowered to entertain the petition to set aside the exparte order passed by them.
18. But,our Hon’ble Supreme Court of India in the case of “ New India Assurance Co., Ltd -vs- R.Srinivasan reported in 2000 (1) CTC 735 has held that ,
“Powers of Civil court in Code of Civil Procedure is made available to District Forum to limited extent – Provisions of Order 9 of Code of Civil Procedure is not made applicable to proceedings of District Forum or State Commission or National Commission – Court cannot extend provisions of Order 9 to Forum created and to proceedings under Consumer Protection Act – Rules do not provide that if complaint is dismissed for default by District Forum or by State Forum second complaint could not lie - No parallel provision contained in Order 9, Rule 9 is found in Consumer Protection Act – Rule of Prohibition contained in Order 9, Rule 9 (1) of Code of Civil Procedure cannot be extended to proceedings of District Forum or State Commission – Second complaint could be filed explaining why earlier complaint could not be pursued and was dismissed for default “.
19. But, in the same decision, the Hon’ble Supreme court of India has also held in para 18
“ we only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. “
20. So, from the para 18 of the above decision of our apex court it is clear this forum is also having power to entertain this kind of petition.
21. But, the matter has not settled there. The Hon’ble Supreme court of India while dealing with the case of “Rajeev Hitendra Pathan and others -vs-Achyut Kashinath Karekar and another” reported in 2007 CTJ 1123 (Supreme Court ) (CP) held that “ Inview of the divergence of views expressed by coordinate Benches, in the case of “Jyotsana Arvindkumar shah and others –vs- Bombay Hospital Trust “ III (1999) CPJ I (SC) and “New India Assurance Co.Ltd –vs- R.Srinivasan” 2000 CTJ 1123 SC (CP) the matter was referred to a larger Bench to consider whether the State Commission could recall an ex parte order. The verdict of our apex court is awaited.
22. In these circumstances, considering the difficulties faced by the Madras Consumer Court Bar association The Hon’ble State Consumer Disputes Redressal Commission, Chennai has issued an order in Suo motto reference case No.1/08 dated 4.12.2008 as follows :
1. The district Forum has got power to restore the complaint which was
Dismissed for default.
2. The District Forum has got power to set aside the exparte order setting
the opposite party exparte. If a final order is passed on merits, the District Forum has no power to set aside the said decision which is passed on merits.
23 Hence, it is clear from the above circular of the Hon’ble State Consumer Disputes Redressal Commission, Chennai that the District Forum has got power to restore the complaint which was dismissed for default.
24. In this juncture, it is pertinent to note the decision of our Hon’ble High Court in the case of “Mrs. Vasanthi Thiagarajan, Principal, Sishya School, Hosur Town, Krishnagiri District, Revision petitioner -vs- R.Nageswaran reported in 2008-3-L.W. 838 in which it was held that the District forum is having power to set aside such exparte order passed by it.
25. As pointed out by the learned counsel for the petitioner, Hon’ble State Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the first Appeal No.05 of 2008 dated 17/10/2008 ;
The Hon’ble State Consumer Disputes Redressal Commission, Orissa: Cuttack in the first Appeal No.633of 2006 dated 24th July, 2008 and
The Hon’ble State Consumer Disputes Redressal Commission, Hydrabad in first Appeal No.614 of 2008 , dated 8.5.2009 have decided that the district Consumer Forum is having power to entertain the petition under Order 9, Rule 9 of Civil Procedure Code for restoration of the complaint. Even our Hon’ble State Consumer Disputes Redressal Commission, Chennai in AP.No.656/99 dated 8.4.2008 held that the Appeal is restored which was dismissed for default. So, various State Commissions also viewed that petition under Order 9, Rule 9 may be entertained and suitable orders may be passed.
26. Moreover, furnishing of the copies documents to the opposite parties is the main criteria for filing a memo by the opposite party No.2 which was forwarded to the complainant. But, the complainant’s Learned counself argued that he has filed the copies of documents along with complaint. But, the office has made an endorsement that the copies of documents were not enclosed. However, the copies were received by the opposite parties 1 & 2 on 10.6.2009.
27. This complaint was dismissed for default on 14.6.2007 as the complainant was absent and as there is no representation and for non-prosecution. But, the counsel for this petitioners have stated in his affidavit that he attended this Forum on 14.6.2007, but as he felt uneasy with headache, giddiness and vomiting sensation, he left this forum after entrusting the case bundle to his Advocate colleague, Thiru.Shivasankar, by giving instructions Thiru.G.Shivasankar, Advocate has stated in his supporting Affidavit that it is true that Thiru.R.Gunasekaran, Advocate has entrusted the case bundle by giving instructions, but the case was not called in the open forum. In the counter filed by the 2nd respondent, it is stated that the counsel for the petitioners not at all present and the case was called at 4.00 p.m. and orders were passed. So, we are in a position not to believe both versions.
28. Hence, it is clear that the complaint was not dismissed on merits or by a reasoned order. The complaint was dismissed only for the non-appearance of the complainant or his counsel and for non-furnishing of copies of documents.
29. In these circumstances, we are of the opinion that an opportunity may be given to the petitioners and this petition may be allowed in the interest of justice. But, at the same time, the petitioners have to feel the pinch of the act of non- appearance before this forum and for non furnishing of documents.
In the result, this petition is ordered to be allowed on payment of cost of Rs.2,000/- by the petitioners to the respondents on or before 13/11/2009failing which this petition shall stand dismissed.
Dictated by the President to steno typist, transcribed by her and corrected and pronounced this the Thursday the 5th day of November 2009.
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1. MR. REJU THOMAS, VADACKEPARAMBIL,
... Petitioner
Vs
1. THE NATIONAL INSURANCE CO.LIMITED
... Respondent
2. M/S. MEDICARE SERVICES CLUB,
3. STANDARD CHARTERD GRINDLYAS BANK LTD.,
4. THE CONSUMER DISPUTES REDRESSAL
For Petitioner :SRI.A.KUMAR
For Respondent :SRI.RAJAN P.KALLIYATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------ W.P.(C) NO. 37468 OF 2004
------------------------------------------ Dated this the 4th day of August, 2008
JUDGMENT
Whether a Consumer Redressal Forum has power to restore a complaint which was dismissed for default, and if not, whether a petition under Article 226 or 227 of Constitution of India would lie, challenging the order dismissing an application filed for restoration of the complaint.
2. Petitioner filed a complaint before District Consumer Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It was dismissed for default on 18.5.2004. Petitioner filed I.A. 414 of 2004 (Ext.P2) to restore the complaint. In Ext.P2 petition, petitioner contended that he was ready to proceed with the complaint and had filed an affidavit in lieu of chief examination and on 18.5.2004 he was ready to give evidence and was instructed by his counsel to answer the roll call and inform the Forum that he is ready to give evidence but unfortunately due to his inexperience, he missed the roll call and only after arrival of the counsel at 12 a.m. when enquiries were made, it was WP(C)37468/04 2
realised that the complaint was dismissed for default. It was contended that this fact was brought to the notice of District Forum on the afternoon session and dismissal of the complaint was not due to his negligence or willful laches and therefore it is to be restored. Under Ext.P3 order, the petition was dismissed for the reason that case of the petitioner that he was present in Court on 18.5.2004 and that fact was brought to the notice of the Forum cannot be accepted as the order sheet does not reflect the same and as no sufficient reason was shown to restore the complaint, complaint cannot be restored. This petition is filed under Article 226 and 227 of Constitution of India to quash Ext.P3 order contending that as the dismissal was not due to the negligence or willful laches on the part of the petitioner, District Consumer Redressal Forum should have restored the complaint and considered the complaint on merit, after affording opportunity to the petitioner and therefore the order is to be quashed and compliant is to be restored.
3. Learned counsel appearing for petitioner and first respondent Insurance Company were heard.
4. Learned counsel appearing for petitioner argued that though there is no specific provision for restoration of a WP(C)37468/04 3
complaint dismissed for default, District Consumer Redressal Forum has inherent jurisdiction to restore a complaint dismissed for default. Reliance was placed on the decision of the Apex Court in New India Assurance Company Limited v. R. Srinivasan (AIR 2003 SCC 242). It was pointed out that in view of the conflicting decisions a subsequent Bench of the Apex Court, in Rajeev Hitendra Pathan & others v. Achyut Kashinath Karekar & another (2007 (7) SCC 667), referred the question to a larger Bench. The learned counsel argued that in view of the subsequent decision of the Supreme Court and the reference made to larger Bench, it is to be found that District Consumer Redressal Forum has jurisdiction to restore a complaint to file which was earlier dismissed for default. Learned counsel also argued that even if it is found that the petitioner could have challenged the order by filing an appeal or revision, as the writ petition was admitted and is pending before this Court from 2004 onwards, it may not be thrown out compelling petitioner to approach another Forum at this belated stage. Reliance was placed on the decision of the Apex Court in Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) and Thressiamma v. Union of India (1999 (2) KLT WP(C)37468/04 4
683).
5. Learned counsel appearing for first respondent argued that when under amended Section 22A of Consumer Protection Act, the National Commission was given power to set aside an exparte order, such power was not given either to the State Commission or to the District Consumer Redressal Forum and therefore District Redressal Forum has no jurisdiction to set aside its own order, even if it is an order dismissing the complaint for default. Learned counsel pointed out that Section 15 of the Consumer Protection Act provides for an appeal against an order passed by the District Forum and under Section 13(2)(b) of the Act, the District Forum has jurisdiction to dismiss a complaint on the failure of the complainant to appear and pass an order exparte on the basis of the evidence brought in by the complainant, eventhough the opposite party omits or fails to take action to represent the case before the District Forum and therefore an order passed exparte dismissing the compliant is an appealable order as provided under Section 15. It was also pointed out that as provided under Section 17(1)(b) of the Act, State Commission has jurisdiction to call for records and pass appropriate orders in any consumer dispute, which is pending or WP(C)37468/04 5
has been decided by a District Forum within the State, if it appears to the State Commission that District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity and if so petitioner is entitled to file a revision, challenging the order dismissing the application filed by him, before the State Commission and therefore Article 226 or 227 of Constitution of India cannot be invoked and the writ petition is not maintainable.
6. Section 13 of the Consumer Protection Act (hereinafter referred to as the Act) provides the procedure to be complied by the District Forum on admitting a complaint. Sub clause (i) and (ii) of clause (b) of subsection 2 of Section 13 of the Act empowers the District Forum either to dismiss a complaint for default or to pass an exparte order against respondents based on the evidence of the complainant. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed for default or to set aside the exparte order passed under Section 13 (2) (b) of the Act. This omission cannot be ignored. Section 22A of the WP(C)37468/04 6
Act was inserted by The Consumer Protection Amendment Act (Act 62 of 2002) empowering the National Commission to set aside an exparte order. Section 22A provides that where an order is passed by the National Commission exparte against the opposite party or a complainant, the aggrieved party may apply to the National Commission to set aside the said order in the interest of justice. Even when such a power was granted to the National Commission by the Amendment Act, such a power was not given either to the District Forum or the State Forum. It is also important to take note of the fact that Amendment Act 62 of 2002 was introduced subsequent to the decision of the Apex Court in Jyotsana Aravindkumar Shah v. Bombay Hospital Trust (1999(4) SCC 325) and also the decision in New India Assurance Company Limited v. Srinivasan's case (supra).
7. In Jyotsana Aravindakumar Shah's case (supra) the power of the State Commission to set aside an exparte order was considered by the Apex Court. It was held that so long as there is no provision in the Act enabling the State Commission to set aside an exparte order, it cannot set aside an exparte order. Their Lordships held:
"The State Commission, however, fell into WP(C)37468/04 7
an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State
Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the
State Commission for setting aside the ex parte order, if permissible under the law. Here again, the State Commission failed
to appreciate that the observation of the High Court would help the respondent, if permissible under the law. If the law does not permit the respondent to move the
application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting WP(C)37468/04 8
aside the ex parte order cannot be
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order."
8. The argument of the learned counsel appearing for petitioner is that in view of the subsequent decision it is to be found that though the Act does not provide the power, Court has the inherent power to set aside an exparte order.
9. The question considered by the Apex Court in New India Assurance Company Limited Vs. Sreenivasan (supra) as is clear from paragraph 5 of the judgment was whether in view of dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would lie and whether it ought to have been dismissed as not maintainable. Their Lordships considered the power of Consumer Redressal Forum under Section 13 and held that powers which are available to a civil Court under Code of Civil Procedure are made available to District Forum in respect of matters enumerated in sub section 4 of Section 13 and provisions of Order IX are not made applicable. Their Lordships WP(C)37468/04 9
then held:
" 10). We have already indicated above that the Code of Civil Procedure has been
applied to the proceedings under the
Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer
Protection Act, it would have clearly
provided in the Act that the provisions of Order 9 will also be applicable to the
proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the courts to extend that provision to the proceedings under the Act."
After laying down that it would be permissible to file a second complaint, explaining why the earlier complaint could not be WP(C)37468/04 10
pursued and was dismissed for default, it was held: "18). We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or
judicial body or authority, which has a duty to decide a lis between two parties,
inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the
matter pending before it or to pursue the matter on behalf of the complainant who
had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on WP(C)37468/04 11
good cause being shown for the non-
appearance of the complainant."
It is relying on this paragraph learned counsel appearing for petitioner argued that the Consumer Redressal Forum has the power to restore complaint which was dismissed for non appearance of the complainant. The learned counsel pointed out that taking note of the earlier decision in Jyotsana Aravindkumar Shah's case where a contrary view was taken, a subsequent Bench of the Apex Court in Rajeev Hitendra Pathan v. Achyut Kashinath Karekar (2007 (7) SCC 667) has referred the question to a larger Bench and therefore it is to be found that Consumer Redressal Forum has the power to restore a complaint which was dismissed for default. In Rajeev Hitendra Pathan's case (supra) taking note of paragraph 18 of the judgment in New India Assurance case (supra) it was held: "In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the WP(C)37468/04 12
National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders." Hence it cannot be said that Apex Court has held that District Forum has jurisdiction to restore a complaint dismissed for default. The learned counsel appearing for the petitioner relied on the decision of a learned Single Judge of this Court and submitted that it was held that District Forum has the power to set aside the exparte order. In St. Joseph's Hospital v. Jimmy (2001 (2) KLT 514) the learned Single Judge also held that power to set aside the exparte order under Order IX was not given to the District Forum. True, relying on New India Assurance case it was observed that District Forum has inherent power to restore the complaint dismissed for default. But that was not the question decided in the said case. The National Consumer Disputes Redressal Commission in Harish Chandra WP(C)37468/04 13
v. The New India Assurance Co. Ltd. (2008 (2) CPR 249 (NC) also held that Section 17 of the Consumer Protection Act does not empower a State Commission to review or recall its own final order or a complaint.
10. As stated earlier, when provisions of Order IX of Code of Civil Procedure was not made applicable to the Consumer Redressal Forum under Section 13 and only other provisions are made applicable, Consumer Redressal Forum has no power to restore a complaint dismissed for default to file. It is more so when sub rule 2 (b) of Section 13 enables the District Forum to dismiss a complaint on failure of the complainant to appear before it. If that be so, it can only be found that petition filed before District Redressal Forum is not maintainable. If so remedy of the petitioner is to file an appeal challenging the order dismissing the complaint for default as provided under Section 15 of the Act.
11. Though learned counsel for the petitioner relying on the decision of Apex Court in Kishore Kumar Khaitan And Another v. Praveenkumar Singh ((2006) 3 SCC 312) argued that District Consumer Redressal Forum did not properly consider the application to restore the complaint and hence the WP(C)37468/04 14
supervisory jurisdiction of this Court is to be invoked. Facts of that case are different. In that case trial Court found that there was no urgency to grant an exparte order of injunction and appellate Court in the appeal did not consider the question in the proper manner. It is under such circumstances their Lordships in paragraph 13 held as follows:- "The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
12. Though learned counsel for petitioner also relied on WP(C)37468/04 15
the decisions of Apex Court in Hirday Narain v. I.T. Officer, Bareilly (AIR 1971 SC 33) in that case it was found that an order under Section 35 of Income Tax is not appealable and a revision before the Commissioner of Income Tax is maintainable and on the date when the petition was filed before the High Court the period for moving a revision before the commissioner had not expired. In such circumstances it was held: "12). We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be
justified in dismissing as not maintainable the petition, which was entertained and was heard on merits."
13. Though reliance was placed on the Division Bench decision of this Court in Thressiamma v. Union of India (1999 (2) KLT 683) what was held therein was only that existence of an alternate remedy is not a bar to the maintainability of a writ petition, if there is violation of the fundamental rights or violation of any Act or Rules or violation of WP(C)37468/04 16
the principles of natural justice. The Division Bench following the dictum laid down by the Apex Court in M/s.Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad(AIR 1969 SC 556) held that if there is violation of the principles of natural justice or violation of any rule or Act, dismissal of writ petition on the ground of alternate remedy is not proper. When under Section 13(2) (c) the District Forum is competent to dismiss a complaint on the failure of complainant to appear, it cannot be said that the dismissal of the complaint was in violation of any rule or Act. When the Act does not empower the District Forum, to restore a complaint to file dismissal of the petition for restoration, whatever be the ground for dismissal, is also not an act in violation of the Act or the Rules. Sub section 3 of Section 13 specifically provides that "no proceedings complying with the procedure laid down in sub section 1 and 2 shall be called in question in any Court on the ground that the principles of natural justice have not been complied with". Therefore the order cannot be challenged on the ground of violation of principles of natural justice also. Hence fact that writ petition was earlier admitted is also not a ground to quash the order of the District Forum which is legal and regular. In WP(C)37468/04 17
such circumstances, the writ petition is not maintainable. Petitioner is permitted to challenge the order of the Redressal Forum by filing an appeal as provided under Section 15 or a revision as provided under Section 17 of the Act. If the appeal or revision is filed within two weeks from today, the authority shall receive the same and dispose it in accordance with law. Writ petition is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-
==========================================================================
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307 OF 2007
Rajeev Hitendra Pathak & Others ... Appellants Versus
Achyut Kashinath Karekar & Another ... Respondents WITH
CIVIL APPEAL NO.8155 OF 2001
M.O.H. Leathers ... Appellants Versus
United Commercial Bank ... Respondents J U D G M E N T
Dalveer Bhandari, J.
1. These appeals emanate from the order dated 16.11.2005 in Revision Petition No.551 of 2005 and order dated 12.7.2001 in Miscellaneous Petition No.1 of 2001 in Original Petition No.110 of 1993 passed by the National Consumer Disputes Redressal Commission, New Delhi.
2
2. The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders?
3. The questions of law involved in both the appeals are identical, therefore, we deem it appropriate to dispose of both these appeals by a common judgment.
4. Brief facts necessary to dispose of these appeals are recapitulated as under:
CIVIL APPEAL NO.4307 OF 2007
5. Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm.
6. The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and 3
claimed compensation of Rs.15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint.
7. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.
4
8. The appellants relied on the judgment in the case of Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust (1999) 4 SCC 325. In this case, the Court held that the State Commission did not have the power to review or recall its ex parte order.
9. In New India Assurance Co. Ltd. v. R. Srinivasan (2000) 3 SCC 242, this Court took the contrary view and held that the State Commission could review or recall its ex parte order.
10. In the instant case, a two-Judge Bench of this Court vide judgment and order dated 17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as under: "5. In Jyotsana's case it was observed at para 7 as follows:
"We heard the learned counsel on both sides for quite some time. When we asked
the learned counsel appearing for the respondent to point out the provision in the Act which enables the State
Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions
in the Act. As a matter of fact, before the State Commission the appellants brought
to its notice the two orders, one passed by the Bihar State Commission in Court
Master, UCO Bank v. Ram Govind
5
Agarwal 1996 (1) CPR 351 and the other
passed by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order. The State Commission had
distinguished the abovesaid orders on the
ground that in those two cases the opponents had not only not appeared but
also failed to put in their written statements. In other words, in the case on hand, according to the State
Commission, the opponent (respondent) having filed the written statements, the failure to consider the same by the State
Commission before passing the order would be a valid ground for setting aside
the ex parte order. The State Commission, however, fell into an error in
not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from
the order of the State Commission that it
was influenced by the concluding portion
of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte
order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, if
permissible under the law. If the law does
not permit the respondent to move the application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting
aside the ex parte order cannot be 6
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set
aside an ex parte order."
6. Subsequently, in New India Assurance case this Court appears to have taken a different view as it is evident from what has been stated in para 18, the same reads as follows:
"We only intend to invoke the spirit of the principle behind the above dictum in
support of our view that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss
a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation
to keep the matter pending before it or to
pursue the matter on behalf of the complainant who had instituted the
proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will
be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non- appearance of the complainant."
7. In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate 7
Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders."
11. We have been called upon to decide whether the State Commission has the power to recall an ex parte order.
12. Shri Siddharth Bhatnagar, learned senior counsel appearing for the appellants in Civil Appeal No.4307 of 2007 submitted that the Consumer Tribunals set up under the Consumer Protection Act, 1986 are creatures of that Statute and derive their powers only from the express provisions of the Statute. He has drawn our attention to various provisions of the Consumer Protection Act, 1986 to strengthen his submission. He referred to Section 13(4) of the Consumer Protection Act, 1986 which reads as under:
"13 (4) For the purposes of this Section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object produced as evidence; 8
(iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed."
13. Mr. Bhatnagar has also drawn our attention to Regulation 26(1) of the Consumer Protection Regulations, 2005, framed in exercise of powers conferred by Section 30-A of the Consumer Protection Act, 1986. Regulation 26(1) reads as follows:
"26. Miscellaneous-- (1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908):
Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder."
14. Mr. Bhatnagar submitted that only very few provisions of the Code of Civil Procedure have been made applicable to the proceedings before the District Forums and the State Commissions under Section 18 of the Consumer Protection 9
Act, which applies Sections 13 and 14 to the State Commission and the National Commission (under Section 22(1) are those under Section 13(4)). He relied on the judgment of this Court in Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 to strengthen his argument that the consumer tribunals can derive powers only from the express provisions in the Statute. In the said case, the Court observed as under:
"44. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience."
15. Mr. Bhatnagar also placed reliance on another judgment of this Court in Gulzari Lal Agarwal v. Accounts Officer (1996) 10 SCC 590. In this case, the Court relied on earlier judgment of this Court in the case of Morgan Stanley Mutual Fund and observed that the Consumer Forum has no jurisdiction or power to pass any interim order pending disposal of the original complaint filed before it. 10
16. Mr. Bhatnagar relied on Section 17 of the Act which deals with the jurisdiction of the State Commission. Sections 17-A and 17-B were added by the 2002 Amendment of the Act dealing with the "Transfer of Cases" and "Circuit Benches" respectively. The objects and reasons for introducing the said provisions by way of the said amendment were as follows: "Objects and Reasons-- Clause 15 (old) seeks to insert a new Section 17-A to empower the State Commission to transfer a case from one District Forum to another District Forum within the State if required for the ends of justice. It also seeks to insert another new Section 17-B to enable the State Commissions to hold Circuit Benches."
17. Mr. Bhatnagar also relied on Section 22 of the Act, which deals with the power and procedure of the National Commission. Before the 2002 Amendment, the said provision was as follows:
"22. Power of and procedure applicable to the National Commission-- The National Commission shall, in the disposal of any complaints or any proceedings before it, have--
a) the powers of a Civil Courts as specified in Sub-Sections (4), (5) and (6) of Section 13; b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of Sub-Section (1) of Section 14,
11
and follow such procedure as may be prescribed by the Central Government."
18. After the 2002 Amendment, Section 22 of the Act now reads as follows:
"22. Power and procedure applicable to the National Commission -- (1) The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission.
(2) Without prejudice to the provisions contained in Sub-Section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record."
19. The 2002 Amendment also introduced Section 22A which reads as follows:
"22A. Power to set aside ex parte orders.-Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice."
20. Mr. Bhatnagar contended that Section 22(2) was introduced in 2002 to give the National Commission the power to review its own order. This power could not have been used 12
by the Commission before the amendment. After amendment, now the Commission has specific power to set aside an ex parte order. This power has only been given to the National Commission and not extended to the District Forums or the State Commissions. If the legislature intended to give this power to the State Commissions and District Forums then it would have extended the same to those forums also.
21. Mr. Bhatnagar has also drawn our attention to the objects and reasons for carrying out the amendment which reads as follows:
"Objects and Reasons-- Clause 21 (old) seeks to substitute Section 22 so that the provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum, shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. It also seeks to empower the National Commission to review any order made by it when there is an error apparent on the face of record. These provisions will make the powers and procedures in respect of the National Commission more explicit. It also seeks to insert new Sections 22-A, 22-B and 22-C and 22-D. New Section 22-A empowers the National Commission to set aside ex parte orders against the opposite party or complainant in the interest of justice........" 13
22. Mr. Bhatnagar submitted that the limited applicability of the provisions of the Civil Procedure Code to the Tribunals under the Act is under Section 13(4) of the Act. There is no power of review or recall under the said provision. Even under Section 13(4)(vi), no Rule has been framed in terms of Section 30(1) by the Central Government which provides power to review or recall of orders.
23. Learned senior counsel for the appellants also relied on M/s Eureka Estates (P) Ltd. v. A.P. State Consumer Disputes Redressal Commission and Others AIR 2005 AP 118 in which the Court observed that the District Forums and the State Commissions are entitled to exercise only such powers which are specifically vested in them under the Act and the Rules.
24. Mr. Bhatnagar submitted that it is evident from the Statement of Objects and Reasons of the Act that the purpose of the Act is to provide speedy and simple redressal to consumer disputes. It is for this reason that all the provisions of the Civil Procedure Code have not been extended to the Consumer Forums.
14
25. Mr. Bhatnagar further submitted that the salutary object of speedy and simple redressal under the Act is to be found inter alia in Sections 13(2) and (3) of the Act which provide for the procedure to be adopted by the forum in deciding the complaints admitted by it. The said provisions read as follows:
13. (2) The District Forum shall, if the complaints admitted 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 services,--
(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, 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) ex parte 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.
15
(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits. (3) No proceedings complying with the procedure laid down in Sub-Sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."
26. Mr. Bhatnagar also relied on Section 12(3) of the Act which reads as follows:
"12(3) On receipt of a complaint made under Sub-Section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:
Provided that a complaint shall not be rejected under this Sub-Section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty- one days from the date on which the complaint was received."
27. Mr. Bhatnagar tried to explain the legislative intent behind introducing Section 22-A. According to him, only the National Commission has been given power to set aside ex parte orders and the same power has not been extended to the District Forums or the State Commissions because against the orders of the District Forums and the State Commissions, 16
appeal or revision can be filed before the State Commission and the National Commission respectively. But in the case of the orders of the National Commission, prior to the amendment, the parties were compelled to approach this Court even against the orders by which the cases were dismissed in default. It became extremely expensive and time consuming. In this view of the matter, it became imperative to give this power to the National Commission.
28. According to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did not notice the earlier decision in Jyotsana's case. He submitted that the Tribunals constituted under the Consumer Protection Act, 1986 exercise only such powers as are expressly conferred by the provisions of the said Act and Rules framed thereunder. Since no power of review and recall was conferred on the District Forums and the State Commissions, they can exercise no such power.
29. The counter affidavit was filed by the respondents stating that the Commission was justified in setting aside the ex parte 17
order and restoring the respondents' complaint. The counter affidavit also states that the respondents cannot be deprived of their right without contest on the basis of trivial technicalities.
30. The respondents relied upon the judgment of this Court in New India Assurance Co. Ltd. in which this Court held that the Consumer Courts have inherent powers to restore the complaints dismissed for default. It is also stated in the counter affidavit that due to old age, respondent no.1 lost track of the case and therefore, the State Commission was justified in setting aside the ex parte order in order to ensure that justice is done to the parties.
CIVIL APPEAL NO.8155 OF 2001
31. In Civil Appeal No.8155 of 2001, the National Commission passed an ex parte order and in the appeal against the order, this Court gave liberty to the appellants to approach the Commission for setting aside the ex parte order. Thereafter, an application was filed by the complainants for review of the order. The Commission vide order dated 12.7.2001 (relied on the judgment of Jyotsana's case) 18
dismissed the application. Aggrieved by the said order, the appellant has filed this appeal.
32. Mr. M.S. Ganesh, learned senior counsel appearing on behalf of the appellants in Civil Appeal No.8155 of 2001 submitted that the National Commission has implied and inherent power to recall the order dated 30.5.1996 passed in Original Petition No.110 of 1993.
33. Mr. Ganesh also submitted that the notice of hearing sent by the National Commission was never served on the counsel for the appellants yet the National Commission proceeded to an ex parte decision on the appellants' complaint and dismissed it on the ground of limitation.
34. According to Mr. Ganesh, the decision in Jyotsana's case is manifestly per incuriam. It does not even refer to the doctrine of implied powers and was not aware of its applicability. The later decision in New India Assurance Co. Ltd. is expressly mindful of the doctrine. He submitted that an external aid to the interpretation of the Consumer Protection Act, 1986 also reinforces the above construction of the Act.
19
35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly. 20
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.
40. There has been considerable delay in disposal of the complaint. Therefore, we direct the State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal No.4307 of 2007] as expeditiously as possible and in any event within three months from the date of the communication of this order.
21
41. Similarly, in Civil Appeal No.8155 of 2001, we set aside the impugned order and direct the National Commission to dispose of the Original Petition No.110 of 2003 de novo as expeditiously as possible and in any event within three months from the date of the communication of this order.
42. Both the appeals are disposed of accordingly. The parties are directed to bear their own costs.
................................J.
(Dalveer Bhandari)
................................J.
(Mukundakam Sharma)
...............................J.
(Anil R. Dave)
New Delhi;
August 19, 2011
The latest decision speaks negatively about the matter,though the civil procedure code provides for restoration of cases dismissed for default but when discussed about the consumer protection act civil procedure code is applicable to only for some part and not extensively.
CMP.NO.09 /2009 IN COP.NO. 59 / 2006
DATED THIS THURSDAY THE 5TH DAY OF NOVEMBER 2009
1. A.P.Sundaramoorthy,
2. S.Sakthivel,
3. S.Murugaraj,
4. S.Bhuvaneswari,
All residing at
No.5, K.N.P.Street,
Elampillai, Salem-2. Petitioners / Complainants
-vs-
1. Salem Polyclinic
rep by Dr.K.N.Rao,
2. Dr.B.Radhakrishna, M.D.
Salem Polyclinic,
Department of Medicine &
Pain Management,
266, Omalur Road,
Salem 636 007. Respondents / Opposite parties.
Petition filed by the petitioner praying to restore the complaint which was dismissed for default on 14/6/2007 and this petition coming before us on 02.11.2009 in the presence of Mr.R.Gunasekaran, Counsel for the petitioner and Mr.R.Srinivasan, Counsel for the first respondent and Mr.C.Subramaniyan, Counsel for the 2nd respondent and after hearing of Mr.R.Gunasekaran, for petitioner and Mr.R.Srnivasan, for first respondent and Mr.C.Subramaniyan, for 2nd respondent, this forum passed the following :
ORDER
1. The gist of the Affidavit filed by Thiru.R.Gunasekaran, Advocate for the petitioners:
Thiru.R.Gunasekaran, Advocate for the petitioners on 14.6.2007 after reaching this forum, felt uneasy with head ache and giddiness and vomiting sensation and so he has handed over the case bundle in CC 59/2006 to his colleague advocate Thiru.G.Shiva shankar and requested him to receive the written version, if any, filed by the opposite parties and to note down the next hearing date. He has also told him to inform the Hon’ble forum that he has
already furnished copies of all documents as well as copy of the complaint at the time of filing the complaint itself. But, Thiru.G.Shiva shankar told him that his personal case, as well as the senior cases were also posted on that date and he assured him that he will inform him about the proceedings.. On the same day evening, Thiru. G.Shivashankar contacted Thiru.R.Gunasekaran and informed him that he could not note the hearing date because he did not hear the case in Cc 59/2006 being called.
2. As Thiru.R.Gunasekaran, Advocate for the petitioner was unwell, he could not able to come to this forum’s office for the next one week to verify the diary. Only on 21/6/2007, he came to the forum’s office and verified the diary. He was shocked to find that the case was dismissed for default on 14/6/2007, on the ground that there was no representation on the side of the complainant and on the ground that copies of documents were not furnished to the opposite parties.
3. But, the copies of all documents along with copy of complaint were furnished to enable the opposite parties to answer the claim of the complainants. There is no provisions as per law to file a memo by the opposite parties to direct the complainants to furnish the copies of documents. If the opposite parties wants copies of documents they can very well file a copy application. The opposite parties, using this as an excuse, have not filed their written version within 15 days as requited under sec.13 (2) of Consumer Protection Act, 1986. The complainants have a good case on merits. Unless this petition is allowed and the complaint is restored to file, the petitioners will be put in to irreparable loss and hardship. Hence, it is prayed to restore the complaint to the file which was dismissed for default on 14/6/2007.
4. The Gist of the supporting affidavit filed by Thiru.G.Shivasankar, Advocate.
Thiru.G.Shivasankar, Advocate has stated that on 14.6.2007 when he was present in this forum, his colleague advocate Thiru. R.Gunasekaran told him that he was feeling uneasy with head ache and giddiness and vomitrting sensation, and handed over the above case bundle and requested him to receive the written version, if any, filed by the opposite parties and also to note down the next hearing date. He has also stated that Thiru.Gunasekaran requested him to inform the forum that he had already furnished all copies of the documents along with the complaint copy at the time of filing the complaint itself. He has
further stated that on that date his personal case and his senior’s cases were also posted in the forum, but he did not hear the case in CC 59/06 being called and so he could not note the next hearing date and he has informed the same fact to Thiru.R.Gunasekaran.
5. The gist of the counter filed by the first respondent :
The averments contained in the affidavit are not admitted as true . The applications under Rule 9 of CPC is not applicable to the Consumer Protection Act and this petition is liable to be dismissed inliminie. As per the judgement of Hon’ble Supreme Court reported in 2000 (1) CTC page 735 between New India Assurance Company Ltd –vs- R.Srinivasan, the District forum has no power to set aside the exparte order. The complainant is liable to furnish copies of complaint and documents filed to the opposite parties. Only on receipt of the copies of the complaint with all documents filed by him, the opposite party can effectively repudiate the claim. But, in this case, only the copy of the complaint was served on the first opposite party. After entering appearance through his lawyer, on verification before the district forum, it was found 83 documents have been filed along with the complaint. But, copies of such documents were not furnished to this respondent and they were also not available before this forum.
6. Hence, a memo was filed before this forum on 7.2.2007 on behalf of the first respondent stating the above fact and also for a direction to the complainants to furnish copies of the documents to the first respondent. Even after filing of the memo, the complaint was adjourned from 2.3.2007 to 29.3.2007 ,16.5.2007 and 14.6.2007 directing the complainants to furnish copies to the respondent. But, the copies were not furnished by the complainants and there was no representation on 14.6.2007, nor were the complainants present. So, the complaint was dismissed for default, for non compliance of directions.
7. It is not correct to say that counsel had entrusted the case file to another advocate for representation and on that date the case was not called in open court. With a view only to harass the respondent, this application has been filed by the petitioners. There is no merit in the petition. No cause of action for filing this petition. Hence, it is prayed to dismiss the petition with costs.
8. The gist of the counter filed by the 2nd respondent is follows :
The petition is false, frivolous, vexatious and unsustainable on law and on facts. It is false to say that on 14.6.2007 petitioners’ counsel reached this forum and felt uneasy with headache and giddiness and vomiting sensation and so he handed over the case bundle to his colleague Mr.G.Sivasankar who was present and requested him to receive the written version, but the case was not called. It is also false to say that the counsel for the petitioner came to know the dismissal order only on 21.6.2007. It is false to say that there is no provision as per law to enable the opposite party to file a memo to direct the complainant to furnish the copies of documents. On 14.6.2007 on the representation of the petitioner’s counsel, the case was passed over by this forum for furnishing the copies of documents to this respondent till 4.p.m.. But the petitioners’ have not taken any steps to furnish any documents and so the case was dismissed for default on the same date. The allegation stated in supporting affidavit filed by Thiru.Sivasankar are also false. It is false to say that on 14.6.2007 he was present before this forum on behalf of the petitioner’s counsel. It is also false to say that advocate Thiru.Shivasankaran was waiting before this forum for other cases also, as mentioned in the affidavit. There was no representation at the time of calling at 4.00 p.m. on 14.6.2007. This petition is not at all maintainable in law as described hereunder:
(a) as per law, the Advocate has no right to file this affidavit.
(b) This petitioners’counsel came to know the dismissal order on 14.6.2007 but he has filed this petition only on 22.6.2007.
(c) The petitioners’ have not filed their objection in the memo filed by the first opposite party, if so bound and duty to furnishing the documents to this respondent.
(d) The Hon’ble forum has passed an order on merits, only remedy the petitioner prefer a revision.
(e) This petitioner have not obeyed the order by this Hon’ble forum.
(f) The petitioners’ counsel has not produced any document to prove his illness.
9. The petitioner’s counsel have filed this petition only to dragon on the proceedings and so it may be dismissed with costs.
10. Both side Arguments heard. Records perused.
11. The points for consideration is : Whether this petition filed by the
petitioners can be allowed or not?
12. POINT: The learned counsel for the petitioners argued that the orders of this forum dismissing the complaint is not valid in the eye of law as the case was not posted for examination of any witness or petitioners on 14.6.2007, but the case was posted only for filing of written version by the opposite parties. He has also argued that the filing of memo by the opposite parties to direct the complainants to furnish the copies of all documents to the opposite parties is also not valid and there is no provision in the Act for filing such memos. The learned counsel further argued that this petition Order 9 Rule 9 was filed within the stipulated period of 30 days and this may be allowed. He has further argued that on extreme circumstances, the counsel on record may request his colleague advocate to represent the case on behalf of him, before this forum. The learned counsel vehemently argued that though there is no provision in the Consumer Protection Act, 1986 for filing such petition, as per the order of the various Hon’ble State Commissions this petition may be entertained and suitable orders may be passed. The learned counsel for the petitioner contended that the latest circular issued by the Hon’ble State Commission, Chennai may be considered and this petition may be allowed, as prayed for. The learned counsel concluded that the decision of the apex court reported in AIR 2000 SUPREME COURT 941in the case of New India Assurance Co.Ltd –vs- R.Srinivasan” may be followed and this petition may be allowed as prayed for.
13. But the learned counsel for the respondents 1 & 2 argued that as per the Consumer protection Regulations issued by the Hon’ble National Consumer Disputes Redressal Commission, the copies of complaint along with copies of documents shall be served upon the opposite parties as per the Regulations 10 (5). He has further argued that in this case, the complainant has not filed the copies of documents along with the complaint and so the copies of the complaint alone was served on the opposite parties and the copies of documents were not served to the opposite parties and so the first opposite party was forced
to file a memo to direct the complainant to furnish the copies of documents. But, inspite of the directions given by this Forum, the complainant have not come forward to furnish the copies of documents and as there is no representation on 14.6.2007 the complaint was dismissed for default. The learned counsel for the opposite parties vehemently argued that as per Regulations 26, the provisions of Civil Procedure Code are not applicable to the Consumer forum and so this petition under Order 9 Rule 9 of Civil Procedure Code is not maintainable and this petition is liable to be dismissed.
14. The learned counsel drawn the attention of this forum to the decision of our Hon’ble Supreme Court reported in III (1999) CPJ (1) (SC) and argued that the Hon’ble Supreme Court has held that there is no provision for setting aside the exparte order or restoration of complaint which was dismissed for default and prayed this petition may be dismissed with costs.
15. It is true that there is no provision in the Consumer Protection Act, 1986 for filing this kind of petition under Order 9 Rule 9. As pointed out the counsel for the respondent as per Section 22 A of the Consumer Protection Act, only the Hon’ble National Commission is empowered to set aside the exparte order passed by the Hon’ble National Commission. But, the decision of our Apex court in Srinivasan’s case reported in 2000 CTJ 1123 (SC) (CP), the decision of our Hon’ble High Court reported in 2008 3 Law weekly P838, the order of our Hon’ble State Consumer Disputes Redressal Commission, Chennai in A.P.No.656/99 with CMP No.259/2008 and the orders of some other Hon’ble State Commissions are in favour of entertaining such petitions.
16. The Hon’ble Supreme Court of India has decided in III (1999) CPJ 1 (SC) in the case of “Jhotsana Arvind Kumar Shah & Others -vs- Bombay Hospital Trust and held that,
“ Consumer Protection Act, 1986 – Sections 17,24 – Setting Aside Ex parte Reasoned Order : No jurisdiction vested with State Commission If law does not permit respondent to move application for setting aside ex parte order, order of State Commission setting aside exparte order cannot be sustained – No provision inAct enabling State Commission to set aside ex parte order.” The Hon’ble Supreme Court further held that, “The order of the State Commission setting aside the exparte order was one without jurisdiction, we cannot sustain the same”.
17. So, from the above decision of our apex court it is clear that the Hon’ble State Commission or District Consumer forum are not empowered to entertain the petition to set aside the exparte order passed by them.
18. But,our Hon’ble Supreme Court of India in the case of “ New India Assurance Co., Ltd -vs- R.Srinivasan reported in 2000 (1) CTC 735 has held that ,
“Powers of Civil court in Code of Civil Procedure is made available to District Forum to limited extent – Provisions of Order 9 of Code of Civil Procedure is not made applicable to proceedings of District Forum or State Commission or National Commission – Court cannot extend provisions of Order 9 to Forum created and to proceedings under Consumer Protection Act – Rules do not provide that if complaint is dismissed for default by District Forum or by State Forum second complaint could not lie - No parallel provision contained in Order 9, Rule 9 is found in Consumer Protection Act – Rule of Prohibition contained in Order 9, Rule 9 (1) of Code of Civil Procedure cannot be extended to proceedings of District Forum or State Commission – Second complaint could be filed explaining why earlier complaint could not be pursued and was dismissed for default “.
19. But, in the same decision, the Hon’ble Supreme court of India has also held in para 18
“ we only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. “
20. So, from the para 18 of the above decision of our apex court it is clear this forum is also having power to entertain this kind of petition.
21. But, the matter has not settled there. The Hon’ble Supreme court of India while dealing with the case of “Rajeev Hitendra Pathan and others -vs-Achyut Kashinath Karekar and another” reported in 2007 CTJ 1123 (Supreme Court ) (CP) held that “ Inview of the divergence of views expressed by coordinate Benches, in the case of “Jyotsana Arvindkumar shah and others –vs- Bombay Hospital Trust “ III (1999) CPJ I (SC) and “New India Assurance Co.Ltd –vs- R.Srinivasan” 2000 CTJ 1123 SC (CP) the matter was referred to a larger Bench to consider whether the State Commission could recall an ex parte order. The verdict of our apex court is awaited.
22. In these circumstances, considering the difficulties faced by the Madras Consumer Court Bar association The Hon’ble State Consumer Disputes Redressal Commission, Chennai has issued an order in Suo motto reference case No.1/08 dated 4.12.2008 as follows :
1. The district Forum has got power to restore the complaint which was
Dismissed for default.
2. The District Forum has got power to set aside the exparte order setting
the opposite party exparte. If a final order is passed on merits, the District Forum has no power to set aside the said decision which is passed on merits.
23 Hence, it is clear from the above circular of the Hon’ble State Consumer Disputes Redressal Commission, Chennai that the District Forum has got power to restore the complaint which was dismissed for default.
24. In this juncture, it is pertinent to note the decision of our Hon’ble High Court in the case of “Mrs. Vasanthi Thiagarajan, Principal, Sishya School, Hosur Town, Krishnagiri District, Revision petitioner -vs- R.Nageswaran reported in 2008-3-L.W. 838 in which it was held that the District forum is having power to set aside such exparte order passed by it.
25. As pointed out by the learned counsel for the petitioner, Hon’ble State Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the first Appeal No.05 of 2008 dated 17/10/2008 ;
The Hon’ble State Consumer Disputes Redressal Commission, Orissa: Cuttack in the first Appeal No.633of 2006 dated 24th July, 2008 and
The Hon’ble State Consumer Disputes Redressal Commission, Hydrabad in first Appeal No.614 of 2008 , dated 8.5.2009 have decided that the district Consumer Forum is having power to entertain the petition under Order 9, Rule 9 of Civil Procedure Code for restoration of the complaint. Even our Hon’ble State Consumer Disputes Redressal Commission, Chennai in AP.No.656/99 dated 8.4.2008 held that the Appeal is restored which was dismissed for default. So, various State Commissions also viewed that petition under Order 9, Rule 9 may be entertained and suitable orders may be passed.
26. Moreover, furnishing of the copies documents to the opposite parties is the main criteria for filing a memo by the opposite party No.2 which was forwarded to the complainant. But, the complainant’s Learned counself argued that he has filed the copies of documents along with complaint. But, the office has made an endorsement that the copies of documents were not enclosed. However, the copies were received by the opposite parties 1 & 2 on 10.6.2009.
27. This complaint was dismissed for default on 14.6.2007 as the complainant was absent and as there is no representation and for non-prosecution. But, the counsel for this petitioners have stated in his affidavit that he attended this Forum on 14.6.2007, but as he felt uneasy with headache, giddiness and vomiting sensation, he left this forum after entrusting the case bundle to his Advocate colleague, Thiru.Shivasankar, by giving instructions Thiru.G.Shivasankar, Advocate has stated in his supporting Affidavit that it is true that Thiru.R.Gunasekaran, Advocate has entrusted the case bundle by giving instructions, but the case was not called in the open forum. In the counter filed by the 2nd respondent, it is stated that the counsel for the petitioners not at all present and the case was called at 4.00 p.m. and orders were passed. So, we are in a position not to believe both versions.
28. Hence, it is clear that the complaint was not dismissed on merits or by a reasoned order. The complaint was dismissed only for the non-appearance of the complainant or his counsel and for non-furnishing of copies of documents.
29. In these circumstances, we are of the opinion that an opportunity may be given to the petitioners and this petition may be allowed in the interest of justice. But, at the same time, the petitioners have to feel the pinch of the act of non- appearance before this forum and for non furnishing of documents.
In the result, this petition is ordered to be allowed on payment of cost of Rs.2,000/- by the petitioners to the respondents on or before 13/11/2009failing which this petition shall stand dismissed.
Dictated by the President to steno typist, transcribed by her and corrected and pronounced this the Thursday the 5th day of November 2009.
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Mr. Reju Thomas, Vadackeparambil vs The National Insurance ... on 4 August, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37468 of 2004(I)1. MR. REJU THOMAS, VADACKEPARAMBIL,
... Petitioner
Vs
1. THE NATIONAL INSURANCE CO.LIMITED
... Respondent
2. M/S. MEDICARE SERVICES CLUB,
3. STANDARD CHARTERD GRINDLYAS BANK LTD.,
4. THE CONSUMER DISPUTES REDRESSAL
For Petitioner :SRI.A.KUMAR
For Respondent :SRI.RAJAN P.KALLIYATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------ W.P.(C) NO. 37468 OF 2004
------------------------------------------ Dated this the 4th day of August, 2008
JUDGMENT
Whether a Consumer Redressal Forum has power to restore a complaint which was dismissed for default, and if not, whether a petition under Article 226 or 227 of Constitution of India would lie, challenging the order dismissing an application filed for restoration of the complaint.
2. Petitioner filed a complaint before District Consumer Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It was dismissed for default on 18.5.2004. Petitioner filed I.A. 414 of 2004 (Ext.P2) to restore the complaint. In Ext.P2 petition, petitioner contended that he was ready to proceed with the complaint and had filed an affidavit in lieu of chief examination and on 18.5.2004 he was ready to give evidence and was instructed by his counsel to answer the roll call and inform the Forum that he is ready to give evidence but unfortunately due to his inexperience, he missed the roll call and only after arrival of the counsel at 12 a.m. when enquiries were made, it was WP(C)37468/04 2
realised that the complaint was dismissed for default. It was contended that this fact was brought to the notice of District Forum on the afternoon session and dismissal of the complaint was not due to his negligence or willful laches and therefore it is to be restored. Under Ext.P3 order, the petition was dismissed for the reason that case of the petitioner that he was present in Court on 18.5.2004 and that fact was brought to the notice of the Forum cannot be accepted as the order sheet does not reflect the same and as no sufficient reason was shown to restore the complaint, complaint cannot be restored. This petition is filed under Article 226 and 227 of Constitution of India to quash Ext.P3 order contending that as the dismissal was not due to the negligence or willful laches on the part of the petitioner, District Consumer Redressal Forum should have restored the complaint and considered the complaint on merit, after affording opportunity to the petitioner and therefore the order is to be quashed and compliant is to be restored.
3. Learned counsel appearing for petitioner and first respondent Insurance Company were heard.
4. Learned counsel appearing for petitioner argued that though there is no specific provision for restoration of a WP(C)37468/04 3
complaint dismissed for default, District Consumer Redressal Forum has inherent jurisdiction to restore a complaint dismissed for default. Reliance was placed on the decision of the Apex Court in New India Assurance Company Limited v. R. Srinivasan (AIR 2003 SCC 242). It was pointed out that in view of the conflicting decisions a subsequent Bench of the Apex Court, in Rajeev Hitendra Pathan & others v. Achyut Kashinath Karekar & another (2007 (7) SCC 667), referred the question to a larger Bench. The learned counsel argued that in view of the subsequent decision of the Supreme Court and the reference made to larger Bench, it is to be found that District Consumer Redressal Forum has jurisdiction to restore a complaint to file which was earlier dismissed for default. Learned counsel also argued that even if it is found that the petitioner could have challenged the order by filing an appeal or revision, as the writ petition was admitted and is pending before this Court from 2004 onwards, it may not be thrown out compelling petitioner to approach another Forum at this belated stage. Reliance was placed on the decision of the Apex Court in Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) and Thressiamma v. Union of India (1999 (2) KLT WP(C)37468/04 4
683).
5. Learned counsel appearing for first respondent argued that when under amended Section 22A of Consumer Protection Act, the National Commission was given power to set aside an exparte order, such power was not given either to the State Commission or to the District Consumer Redressal Forum and therefore District Redressal Forum has no jurisdiction to set aside its own order, even if it is an order dismissing the complaint for default. Learned counsel pointed out that Section 15 of the Consumer Protection Act provides for an appeal against an order passed by the District Forum and under Section 13(2)(b) of the Act, the District Forum has jurisdiction to dismiss a complaint on the failure of the complainant to appear and pass an order exparte on the basis of the evidence brought in by the complainant, eventhough the opposite party omits or fails to take action to represent the case before the District Forum and therefore an order passed exparte dismissing the compliant is an appealable order as provided under Section 15. It was also pointed out that as provided under Section 17(1)(b) of the Act, State Commission has jurisdiction to call for records and pass appropriate orders in any consumer dispute, which is pending or WP(C)37468/04 5
has been decided by a District Forum within the State, if it appears to the State Commission that District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity and if so petitioner is entitled to file a revision, challenging the order dismissing the application filed by him, before the State Commission and therefore Article 226 or 227 of Constitution of India cannot be invoked and the writ petition is not maintainable.
6. Section 13 of the Consumer Protection Act (hereinafter referred to as the Act) provides the procedure to be complied by the District Forum on admitting a complaint. Sub clause (i) and (ii) of clause (b) of subsection 2 of Section 13 of the Act empowers the District Forum either to dismiss a complaint for default or to pass an exparte order against respondents based on the evidence of the complainant. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed for default or to set aside the exparte order passed under Section 13 (2) (b) of the Act. This omission cannot be ignored. Section 22A of the WP(C)37468/04 6
Act was inserted by The Consumer Protection Amendment Act (Act 62 of 2002) empowering the National Commission to set aside an exparte order. Section 22A provides that where an order is passed by the National Commission exparte against the opposite party or a complainant, the aggrieved party may apply to the National Commission to set aside the said order in the interest of justice. Even when such a power was granted to the National Commission by the Amendment Act, such a power was not given either to the District Forum or the State Forum. It is also important to take note of the fact that Amendment Act 62 of 2002 was introduced subsequent to the decision of the Apex Court in Jyotsana Aravindkumar Shah v. Bombay Hospital Trust (1999(4) SCC 325) and also the decision in New India Assurance Company Limited v. Srinivasan's case (supra).
7. In Jyotsana Aravindakumar Shah's case (supra) the power of the State Commission to set aside an exparte order was considered by the Apex Court. It was held that so long as there is no provision in the Act enabling the State Commission to set aside an exparte order, it cannot set aside an exparte order. Their Lordships held:
"The State Commission, however, fell into WP(C)37468/04 7
an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State
Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the
State Commission for setting aside the ex parte order, if permissible under the law. Here again, the State Commission failed
to appreciate that the observation of the High Court would help the respondent, if permissible under the law. If the law does not permit the respondent to move the
application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting WP(C)37468/04 8
aside the ex parte order cannot be
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order."
8. The argument of the learned counsel appearing for petitioner is that in view of the subsequent decision it is to be found that though the Act does not provide the power, Court has the inherent power to set aside an exparte order.
9. The question considered by the Apex Court in New India Assurance Company Limited Vs. Sreenivasan (supra) as is clear from paragraph 5 of the judgment was whether in view of dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would lie and whether it ought to have been dismissed as not maintainable. Their Lordships considered the power of Consumer Redressal Forum under Section 13 and held that powers which are available to a civil Court under Code of Civil Procedure are made available to District Forum in respect of matters enumerated in sub section 4 of Section 13 and provisions of Order IX are not made applicable. Their Lordships WP(C)37468/04 9
then held:
" 10). We have already indicated above that the Code of Civil Procedure has been
applied to the proceedings under the
Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer
Protection Act, it would have clearly
provided in the Act that the provisions of Order 9 will also be applicable to the
proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the courts to extend that provision to the proceedings under the Act."
After laying down that it would be permissible to file a second complaint, explaining why the earlier complaint could not be WP(C)37468/04 10
pursued and was dismissed for default, it was held: "18). We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or
judicial body or authority, which has a duty to decide a lis between two parties,
inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the
matter pending before it or to pursue the matter on behalf of the complainant who
had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on WP(C)37468/04 11
good cause being shown for the non-
appearance of the complainant."
It is relying on this paragraph learned counsel appearing for petitioner argued that the Consumer Redressal Forum has the power to restore complaint which was dismissed for non appearance of the complainant. The learned counsel pointed out that taking note of the earlier decision in Jyotsana Aravindkumar Shah's case where a contrary view was taken, a subsequent Bench of the Apex Court in Rajeev Hitendra Pathan v. Achyut Kashinath Karekar (2007 (7) SCC 667) has referred the question to a larger Bench and therefore it is to be found that Consumer Redressal Forum has the power to restore a complaint which was dismissed for default. In Rajeev Hitendra Pathan's case (supra) taking note of paragraph 18 of the judgment in New India Assurance case (supra) it was held: "In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the WP(C)37468/04 12
National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders." Hence it cannot be said that Apex Court has held that District Forum has jurisdiction to restore a complaint dismissed for default. The learned counsel appearing for the petitioner relied on the decision of a learned Single Judge of this Court and submitted that it was held that District Forum has the power to set aside the exparte order. In St. Joseph's Hospital v. Jimmy (2001 (2) KLT 514) the learned Single Judge also held that power to set aside the exparte order under Order IX was not given to the District Forum. True, relying on New India Assurance case it was observed that District Forum has inherent power to restore the complaint dismissed for default. But that was not the question decided in the said case. The National Consumer Disputes Redressal Commission in Harish Chandra WP(C)37468/04 13
v. The New India Assurance Co. Ltd. (2008 (2) CPR 249 (NC) also held that Section 17 of the Consumer Protection Act does not empower a State Commission to review or recall its own final order or a complaint.
10. As stated earlier, when provisions of Order IX of Code of Civil Procedure was not made applicable to the Consumer Redressal Forum under Section 13 and only other provisions are made applicable, Consumer Redressal Forum has no power to restore a complaint dismissed for default to file. It is more so when sub rule 2 (b) of Section 13 enables the District Forum to dismiss a complaint on failure of the complainant to appear before it. If that be so, it can only be found that petition filed before District Redressal Forum is not maintainable. If so remedy of the petitioner is to file an appeal challenging the order dismissing the complaint for default as provided under Section 15 of the Act.
11. Though learned counsel for the petitioner relying on the decision of Apex Court in Kishore Kumar Khaitan And Another v. Praveenkumar Singh ((2006) 3 SCC 312) argued that District Consumer Redressal Forum did not properly consider the application to restore the complaint and hence the WP(C)37468/04 14
supervisory jurisdiction of this Court is to be invoked. Facts of that case are different. In that case trial Court found that there was no urgency to grant an exparte order of injunction and appellate Court in the appeal did not consider the question in the proper manner. It is under such circumstances their Lordships in paragraph 13 held as follows:- "The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
12. Though learned counsel for petitioner also relied on WP(C)37468/04 15
the decisions of Apex Court in Hirday Narain v. I.T. Officer, Bareilly (AIR 1971 SC 33) in that case it was found that an order under Section 35 of Income Tax is not appealable and a revision before the Commissioner of Income Tax is maintainable and on the date when the petition was filed before the High Court the period for moving a revision before the commissioner had not expired. In such circumstances it was held: "12). We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be
justified in dismissing as not maintainable the petition, which was entertained and was heard on merits."
13. Though reliance was placed on the Division Bench decision of this Court in Thressiamma v. Union of India (1999 (2) KLT 683) what was held therein was only that existence of an alternate remedy is not a bar to the maintainability of a writ petition, if there is violation of the fundamental rights or violation of any Act or Rules or violation of WP(C)37468/04 16
the principles of natural justice. The Division Bench following the dictum laid down by the Apex Court in M/s.Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad(AIR 1969 SC 556) held that if there is violation of the principles of natural justice or violation of any rule or Act, dismissal of writ petition on the ground of alternate remedy is not proper. When under Section 13(2) (c) the District Forum is competent to dismiss a complaint on the failure of complainant to appear, it cannot be said that the dismissal of the complaint was in violation of any rule or Act. When the Act does not empower the District Forum, to restore a complaint to file dismissal of the petition for restoration, whatever be the ground for dismissal, is also not an act in violation of the Act or the Rules. Sub section 3 of Section 13 specifically provides that "no proceedings complying with the procedure laid down in sub section 1 and 2 shall be called in question in any Court on the ground that the principles of natural justice have not been complied with". Therefore the order cannot be challenged on the ground of violation of principles of natural justice also. Hence fact that writ petition was earlier admitted is also not a ground to quash the order of the District Forum which is legal and regular. In WP(C)37468/04 17
such circumstances, the writ petition is not maintainable. Petitioner is permitted to challenge the order of the Redressal Forum by filing an appeal as provided under Section 15 or a revision as provided under Section 17 of the Act. If the appeal or revision is filed within two weeks from today, the authority shall receive the same and dispose it in accordance with law. Writ petition is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-
==========================================================================
Rajeev Hitendra Pathak & Ors. vs Achyut Kashinath Karekar & Anr on 19 August, 2011
Bench: Dalveer Bhandari, Mukundakam Sharma, Anil R. Dave
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307 OF 2007
Rajeev Hitendra Pathak & Others ... Appellants Versus
Achyut Kashinath Karekar & Another ... Respondents WITH
CIVIL APPEAL NO.8155 OF 2001
M.O.H. Leathers ... Appellants Versus
United Commercial Bank ... Respondents J U D G M E N T
Dalveer Bhandari, J.
1. These appeals emanate from the order dated 16.11.2005 in Revision Petition No.551 of 2005 and order dated 12.7.2001 in Miscellaneous Petition No.1 of 2001 in Original Petition No.110 of 1993 passed by the National Consumer Disputes Redressal Commission, New Delhi.
2
2. The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders?
3. The questions of law involved in both the appeals are identical, therefore, we deem it appropriate to dispose of both these appeals by a common judgment.
4. Brief facts necessary to dispose of these appeals are recapitulated as under:
CIVIL APPEAL NO.4307 OF 2007
5. Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm.
6. The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and 3
claimed compensation of Rs.15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint.
7. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.
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8. The appellants relied on the judgment in the case of Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust (1999) 4 SCC 325. In this case, the Court held that the State Commission did not have the power to review or recall its ex parte order.
9. In New India Assurance Co. Ltd. v. R. Srinivasan (2000) 3 SCC 242, this Court took the contrary view and held that the State Commission could review or recall its ex parte order.
10. In the instant case, a two-Judge Bench of this Court vide judgment and order dated 17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as under: "5. In Jyotsana's case it was observed at para 7 as follows:
"We heard the learned counsel on both sides for quite some time. When we asked
the learned counsel appearing for the respondent to point out the provision in the Act which enables the State
Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions
in the Act. As a matter of fact, before the State Commission the appellants brought
to its notice the two orders, one passed by the Bihar State Commission in Court
Master, UCO Bank v. Ram Govind
5
Agarwal 1996 (1) CPR 351 and the other
passed by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order. The State Commission had
distinguished the abovesaid orders on the
ground that in those two cases the opponents had not only not appeared but
also failed to put in their written statements. In other words, in the case on hand, according to the State
Commission, the opponent (respondent) having filed the written statements, the failure to consider the same by the State
Commission before passing the order would be a valid ground for setting aside
the ex parte order. The State Commission, however, fell into an error in
not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from
the order of the State Commission that it
was influenced by the concluding portion
of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte
order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, if
permissible under the law. If the law does
not permit the respondent to move the application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting
aside the ex parte order cannot be 6
sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set
aside an ex parte order."
6. Subsequently, in New India Assurance case this Court appears to have taken a different view as it is evident from what has been stated in para 18, the same reads as follows:
"We only intend to invoke the spirit of the principle behind the above dictum in
support of our view that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss
a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation
to keep the matter pending before it or to
pursue the matter on behalf of the complainant who had instituted the
proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will
be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non- appearance of the complainant."
7. In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate 7
Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders."
11. We have been called upon to decide whether the State Commission has the power to recall an ex parte order.
12. Shri Siddharth Bhatnagar, learned senior counsel appearing for the appellants in Civil Appeal No.4307 of 2007 submitted that the Consumer Tribunals set up under the Consumer Protection Act, 1986 are creatures of that Statute and derive their powers only from the express provisions of the Statute. He has drawn our attention to various provisions of the Consumer Protection Act, 1986 to strengthen his submission. He referred to Section 13(4) of the Consumer Protection Act, 1986 which reads as under:
"13 (4) For the purposes of this Section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object produced as evidence; 8
(iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed."
13. Mr. Bhatnagar has also drawn our attention to Regulation 26(1) of the Consumer Protection Regulations, 2005, framed in exercise of powers conferred by Section 30-A of the Consumer Protection Act, 1986. Regulation 26(1) reads as follows:
"26. Miscellaneous-- (1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908):
Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder."
14. Mr. Bhatnagar submitted that only very few provisions of the Code of Civil Procedure have been made applicable to the proceedings before the District Forums and the State Commissions under Section 18 of the Consumer Protection 9
Act, which applies Sections 13 and 14 to the State Commission and the National Commission (under Section 22(1) are those under Section 13(4)). He relied on the judgment of this Court in Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 to strengthen his argument that the consumer tribunals can derive powers only from the express provisions in the Statute. In the said case, the Court observed as under:
"44. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience."
15. Mr. Bhatnagar also placed reliance on another judgment of this Court in Gulzari Lal Agarwal v. Accounts Officer (1996) 10 SCC 590. In this case, the Court relied on earlier judgment of this Court in the case of Morgan Stanley Mutual Fund and observed that the Consumer Forum has no jurisdiction or power to pass any interim order pending disposal of the original complaint filed before it. 10
16. Mr. Bhatnagar relied on Section 17 of the Act which deals with the jurisdiction of the State Commission. Sections 17-A and 17-B were added by the 2002 Amendment of the Act dealing with the "Transfer of Cases" and "Circuit Benches" respectively. The objects and reasons for introducing the said provisions by way of the said amendment were as follows: "Objects and Reasons-- Clause 15 (old) seeks to insert a new Section 17-A to empower the State Commission to transfer a case from one District Forum to another District Forum within the State if required for the ends of justice. It also seeks to insert another new Section 17-B to enable the State Commissions to hold Circuit Benches."
17. Mr. Bhatnagar also relied on Section 22 of the Act, which deals with the power and procedure of the National Commission. Before the 2002 Amendment, the said provision was as follows:
"22. Power of and procedure applicable to the National Commission-- The National Commission shall, in the disposal of any complaints or any proceedings before it, have--
a) the powers of a Civil Courts as specified in Sub-Sections (4), (5) and (6) of Section 13; b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of Sub-Section (1) of Section 14,
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and follow such procedure as may be prescribed by the Central Government."
18. After the 2002 Amendment, Section 22 of the Act now reads as follows:
"22. Power and procedure applicable to the National Commission -- (1) The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission.
(2) Without prejudice to the provisions contained in Sub-Section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record."
19. The 2002 Amendment also introduced Section 22A which reads as follows:
"22A. Power to set aside ex parte orders.-Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice."
20. Mr. Bhatnagar contended that Section 22(2) was introduced in 2002 to give the National Commission the power to review its own order. This power could not have been used 12
by the Commission before the amendment. After amendment, now the Commission has specific power to set aside an ex parte order. This power has only been given to the National Commission and not extended to the District Forums or the State Commissions. If the legislature intended to give this power to the State Commissions and District Forums then it would have extended the same to those forums also.
21. Mr. Bhatnagar has also drawn our attention to the objects and reasons for carrying out the amendment which reads as follows:
"Objects and Reasons-- Clause 21 (old) seeks to substitute Section 22 so that the provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum, shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. It also seeks to empower the National Commission to review any order made by it when there is an error apparent on the face of record. These provisions will make the powers and procedures in respect of the National Commission more explicit. It also seeks to insert new Sections 22-A, 22-B and 22-C and 22-D. New Section 22-A empowers the National Commission to set aside ex parte orders against the opposite party or complainant in the interest of justice........" 13
22. Mr. Bhatnagar submitted that the limited applicability of the provisions of the Civil Procedure Code to the Tribunals under the Act is under Section 13(4) of the Act. There is no power of review or recall under the said provision. Even under Section 13(4)(vi), no Rule has been framed in terms of Section 30(1) by the Central Government which provides power to review or recall of orders.
23. Learned senior counsel for the appellants also relied on M/s Eureka Estates (P) Ltd. v. A.P. State Consumer Disputes Redressal Commission and Others AIR 2005 AP 118 in which the Court observed that the District Forums and the State Commissions are entitled to exercise only such powers which are specifically vested in them under the Act and the Rules.
24. Mr. Bhatnagar submitted that it is evident from the Statement of Objects and Reasons of the Act that the purpose of the Act is to provide speedy and simple redressal to consumer disputes. It is for this reason that all the provisions of the Civil Procedure Code have not been extended to the Consumer Forums.
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25. Mr. Bhatnagar further submitted that the salutary object of speedy and simple redressal under the Act is to be found inter alia in Sections 13(2) and (3) of the Act which provide for the procedure to be adopted by the forum in deciding the complaints admitted by it. The said provisions read as follows:
13. (2) The District Forum shall, if the complaints admitted 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 services,--
(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, 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) ex parte 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.
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(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits. (3) No proceedings complying with the procedure laid down in Sub-Sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."
26. Mr. Bhatnagar also relied on Section 12(3) of the Act which reads as follows:
"12(3) On receipt of a complaint made under Sub-Section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:
Provided that a complaint shall not be rejected under this Sub-Section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty- one days from the date on which the complaint was received."
27. Mr. Bhatnagar tried to explain the legislative intent behind introducing Section 22-A. According to him, only the National Commission has been given power to set aside ex parte orders and the same power has not been extended to the District Forums or the State Commissions because against the orders of the District Forums and the State Commissions, 16
appeal or revision can be filed before the State Commission and the National Commission respectively. But in the case of the orders of the National Commission, prior to the amendment, the parties were compelled to approach this Court even against the orders by which the cases were dismissed in default. It became extremely expensive and time consuming. In this view of the matter, it became imperative to give this power to the National Commission.
28. According to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did not notice the earlier decision in Jyotsana's case. He submitted that the Tribunals constituted under the Consumer Protection Act, 1986 exercise only such powers as are expressly conferred by the provisions of the said Act and Rules framed thereunder. Since no power of review and recall was conferred on the District Forums and the State Commissions, they can exercise no such power.
29. The counter affidavit was filed by the respondents stating that the Commission was justified in setting aside the ex parte 17
order and restoring the respondents' complaint. The counter affidavit also states that the respondents cannot be deprived of their right without contest on the basis of trivial technicalities.
30. The respondents relied upon the judgment of this Court in New India Assurance Co. Ltd. in which this Court held that the Consumer Courts have inherent powers to restore the complaints dismissed for default. It is also stated in the counter affidavit that due to old age, respondent no.1 lost track of the case and therefore, the State Commission was justified in setting aside the ex parte order in order to ensure that justice is done to the parties.
CIVIL APPEAL NO.8155 OF 2001
31. In Civil Appeal No.8155 of 2001, the National Commission passed an ex parte order and in the appeal against the order, this Court gave liberty to the appellants to approach the Commission for setting aside the ex parte order. Thereafter, an application was filed by the complainants for review of the order. The Commission vide order dated 12.7.2001 (relied on the judgment of Jyotsana's case) 18
dismissed the application. Aggrieved by the said order, the appellant has filed this appeal.
32. Mr. M.S. Ganesh, learned senior counsel appearing on behalf of the appellants in Civil Appeal No.8155 of 2001 submitted that the National Commission has implied and inherent power to recall the order dated 30.5.1996 passed in Original Petition No.110 of 1993.
33. Mr. Ganesh also submitted that the notice of hearing sent by the National Commission was never served on the counsel for the appellants yet the National Commission proceeded to an ex parte decision on the appellants' complaint and dismissed it on the ground of limitation.
34. According to Mr. Ganesh, the decision in Jyotsana's case is manifestly per incuriam. It does not even refer to the doctrine of implied powers and was not aware of its applicability. The later decision in New India Assurance Co. Ltd. is expressly mindful of the doctrine. He submitted that an external aid to the interpretation of the Consumer Protection Act, 1986 also reinforces the above construction of the Act.
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35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly. 20
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.
40. There has been considerable delay in disposal of the complaint. Therefore, we direct the State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal No.4307 of 2007] as expeditiously as possible and in any event within three months from the date of the communication of this order.
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41. Similarly, in Civil Appeal No.8155 of 2001, we set aside the impugned order and direct the National Commission to dispose of the Original Petition No.110 of 2003 de novo as expeditiously as possible and in any event within three months from the date of the communication of this order.
42. Both the appeals are disposed of accordingly. The parties are directed to bear their own costs.
................................J.
(Dalveer Bhandari)
................................J.
(Mukundakam Sharma)
...............................J.
(Anil R. Dave)
New Delhi;
August 19, 2011
The latest decision speaks negatively about the matter,though the civil procedure code provides for restoration of cases dismissed for default but when discussed about the consumer protection act civil procedure code is applicable to only for some part and not extensively.
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