HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- Challenge is to the order No. 6 dated 29.12.2022 passed by the Learned District Consumer Disputes Redressal Commission, Sealdah ( in short, the ‘District Commission’) in connection with Consumer Case No. CC/182/2022 thereby fixed the case for ex parte hearing against the opposite party No. 3.
- The complainant / respondent No. 1 & 2 herein instituted a complaint case being No.CC/182/2022 against the revisionist and others under section 34 read with section 35 of the Consumer Protection Act, 2019. The complainants / respondent Nos. 1 & 2 have filed the petition of complaint praying for the following reliefs :-
“i) To issue show cause notice upon the opposite parties for their appearance.
ii) After hearing please to direct the opposite parties to execute and register deed of conveyance in favour of the complainants as per agreement for sale dated 09.12.2020 and as per sanctioned building plan in default registration will be done through machinery of the Ld. District Commission
iii) To direct the opposite parties to provide copy of completion certificate and last payment receipt of municipal tax
iv) To pay compensation to the tune of Rs.10,00,000/- due to mental agony and physical harassment
v) To award litigation cost Rs.1,00,000/-
vi) To pass other orders as your Honour may deem fit and proper.”
- It appears from the record that notice was duly served upon the revisionist / opposite party No. 3 on 11.11.2022 and the revisionist / opposite party No. 3 entered appearance before the Learned District Commission below through his Learned Advocate and by filing a petition undertook to file Vakalatnama on the next date. On 30.11.2022 Learned Commission below was pleased to fix 15.12.2022 for filing written version by opposite party No. 3 and for filing Vakalatnama by opposite party No. 3 by Learned Advocate appearing for opposite party No. 3. On 15.12.2022 Learned Advocate appearing for opposite party No. 3 filed an application before the Learned District Commission below praying for time for filing his power on the next date as the opposite party No. 3 / revisionist was out of station. The prayer of the opposite party No. 3 was considered and allowed. Learned Commission below fixed 27.12.2022 for filing written version by the opposite party No. 3 and other opposite parties and for filing power on behalf of opposite party No. 3. On 27.12.2022 Learned Advocate for revisionist / opposite party No. 3 filed Vakalatnama in compliance of the direction vide order dated 30.11.2022 and verbally prayed for time for filing written version. On 27.12.2022 Learned Advocate appearing for the opposite party No. 3 filed an application praying permission to adopt the written version filed by the opposite parties No. 1 & 2 as the written version filed by the opposite party No. 3 and the said application was kept on the record and was fixed on 29.12.2022 for hearing and order. On 29.12.2022 the application filed by the opposite party No. 3 for adopting written version was not considered as the same was not in appropriate form. On 29.12.2022 the opposite party No. 3 filed written version and said written version was not accepted as the same was not filed within time and the case was fixed for ex parte hearing by the impugned order.
- Being aggrieved by and dissatisfied with the said order passed by the Learned District Commission, the revisionist has preferred this revisional application.
- Now, we shall have to consider as to whether the impugned order should be sustained.
- Learned Lawyer appearing for the revisionist has submitted that the impugned order is baseless and erroneous and is required to be set aside by giving an opportunity by filing written version in the complaint case being No. CC/182/2022. He has further submitted that the Learned Commission below has committed wrong in holding that summon has duly been served upon the revisionist.
- He has further submitted that the Commission below has failed to consider that the revisionist was interested to contest the complaint case. So, the revisional application should be allowed and the impugned order should be set aside for the ends of justice.
- Having heard the Learned Advocate appearing for the revisionist and on perusal of the record it appears to us that the revisionist appeared in this case on 30.11.2022 through the Learned Advocate and the Learned Advocate appearing for the opposite party No. 3 prayed for time for filing written version and prayed for time for filing Vakalatnama on behalf of the opposite party No. 3 on the next date. The prayer of the opposite party No. 3 was considered and allowed. On 15.12.2022 the Learned Advocate appearing for the opposite party No. 3 appeared before the Learned District Commission and filed an application to file Vakalatnama on the next date as the opposite party No. 3 was out of station and his prayer was allowed and Learned District Commission below was pleased to fix 27.12.2022 for filing written version by the opposite parties and for filing Vakalatnama on behalf of the opposite party No. 3. On 27.12.2022 the opposite party No. 3 / revisionist did not file written version and in place of filing written version by the opposite party No. 3, the opposite party No. 3 prayed for permission to adopt the written version filed by the opposite parties No. 1 & 2 as his written version and the Learned Commission below was pleased to fix the date on 29.12.2022. On 29.12.2022 the opposite party No. 3 filed written version but the said written version filed by the opposite party No. 3 was not accepted by the Learned District Commission below as the statutory period of 45 days was over. As a result, the Learned District Commission was pleased to fix the date for ex parte hearing.
- Section 51 (5) of the Act grants power to the National Commission to set aside the ex parte orders passed by the State Commission and section 61 of the Act grants power to the National Commission to set aside its own ex parte orders. But there is no specific provision in the Consumer Protection Act that expressly grants power to the District Commission to set aside ex parte orders passed by them. Therefore, the District Commission has no power and / or jurisdiction to accept the written version beyond the statutory period prescribed under the Act i.e. 45 days in all.
- The controversy is squarely covered by the judgment of the Hon’ble Supreme Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another ) wherein it was held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35, 36,37,38 & 39 of the said judgment are relevant which are reproduced as under :-
“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.
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.”
- The same issue was also there before the Hon'ble Supreme Court in judgment of case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil Appeal No. 936 of 2013 decided on 05/02/2013 wherein earlier judgment of Supreme Court passed in connection with the case namely Rajeev Hitendra Pathak's case (Supra) was relied and it was held that "The District Forum 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.
- The Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. , 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2) 3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.
- In view of our above discussion, the impugned order passed by the Learned District Commission is within the jurisdiction and which is not bad in law. There is no scope of interference with the impugned order.
- Accordingly, the revisional application is dismissed in limini. Considering the facts and circumstances, there will be no order as to costs.
- District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of the order passed by this Commission.
- Accordingly, the revisional application is dismissed in limini.
- The revisional application is thus disposed of accordingly.
- Let a copy of this order be sent down to the Learned District Commission below at once.
