H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 127/2009.

Date of Decision 19.8.2009.

In the matter of:



Commissioner Employees Provident Punjab & Haryana

(H.P) Area Officer, Through its Commission SCO No. 4 to 7,

Sector 17-D, Chandigarh 160 017.

… … Appellant.

Versus



Smt. Jai Devi widow of late Sh. Hari Ram

R/o VPO Chaukhat, Tehsil Jawali, Distt. Kangra, HP.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? Yes.



For the Appellant.: Mr. Shashi Bhushan Singh Chandel

Advocate.



For the Respondent.: Mr. S.K. Narotra, Advocate.



O R D E R



Justice Arun Kumar Goel (Retd.), President, (Oral).



Reply to the grounds of appeal has been filed today. When this case was taken up, Mr. Chandel urged that looking to the age of the lady, as also the controversy involved in it, pendency of the appeal is not in the interest of the respondent. He prayed for the matter being heard and disposed of either way. This was agreed to on behalf of the respondent by Mr. Narotra, learned counsel for the respondent.

2. Mr. Chandel by referring to the day-to-day order sheet of the complaint file, submitted that on 22.2.2008, SO from the office of his client had put in appearance and case was ordered to be adjourned to 19.4.2008. On this date, as well as on 14.5.2008 quorum was not complete, as such case was taken up on 19.6.2008. Since quorum was there, notice was ordered to be issued to the appellant for 17.7.2008. On this date following order was passed:-

“AD not received, we are satisfied that OP has been served through registered post as the same has not been received un-served.

Thus OP is proceeded against ex parte.

Put up on 17.9.2008 for the evidence of complainant.”



3. In the aforesaid background, according to Mr. Chandel his client was wrongly and illegally ordered to set ex parte by holding, that it had been served through registered post as the notice sent had not been received back un-served. Further submission of Mr. Chandel was, that if the acknowledgment due had not been received back within 30 days of its issue or the undelivered registered AD notice was not received back within 30 days, then in such a situation presumption could have been raised of service against his client. That is admittedly not the situation. Record of the complaint file shows, that notice for 17.7.2008 is dated 23.6.2008 when it was sent by registered post, there is nothing on record. In these circumstances, we are of the view that the manner in which the appellant was proceeded ex parte is not only illegal, but is also contrary to law. Therefore cannot be sustained in the facts and circumstances of this case. That being the position, ex parte proceedings ordered on 17.7.2008, by District Forum below against the appellant need to be set aside. Once this conclusion is arrived at, then all subsequent proceedings including passing of the final order by the District Forum below allowing the complaint on 19.2.2009 must fall.

4. At this stage Mr. Narotra submitted that appellant is trying to take advantage of technicalities, otherwise it was well aware regarding pendency of the complaint as it had deputed its official to attend hearing on 22.2.2008. Fact remains that thereafter for want of quorum no effective hearing was undertaken in this case by the District Forum below.

5. In view of the aforesaid discussion, we are of the view that the impugned order deserves to be set aside while allowing this appeal. Ordered accordingly. Consequently the complaint No. 332/2007 is ordered to be restored to its original number and date and the same is remanded back to the District Forum below, with the direction to proceed further from the stage before the appellant was set ex parte on 17.7.2008. [Case is ordered to be taken up by District Forum Dharamshala, Camp at Dehra on 18.9.2009. On this date appellant shall file reply to the complaint. In case it fails to do the needful, then this appeal shall stand dismissed.] After receipt of reply if any that may be filed by the appellant, District Forum below is directed to proceed further in the matter on the basis of material on record and without being influenced by its earlier order allowing the complaint. We clarify in this behalf that so far merits of the case urged on behalf of the parties in this appeal, those have not been gone into by us. Appeal is disposed of in these terms.

All interim orders passed from time to time in this appeal as also the pending applications stand disposed of.

Learned counsel for the appellant has undertaken to collect copy of this order from the Court Secretary free of cost as per rules, and the office is directed to send the same in the like manner to Mr. S.K. Narotra, Advocate at Dehra by post.

Office will also ensure that the file is transmitted well before the date fixed.



Shimla,

August 19, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.