1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent  as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 27.11.2018 of the State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 27/2016 in which order dated 22.12.2015 of District Consumer Disputes Redressal Forum, Pauri Garhwal (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 16/2013 was challenged, inter alia praying for setting aside the impugned order dated 27.11.2018 passed by the State Commission in Appeal No. 27/2016 and restoring the Appeal to its original number before the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Appellant before the State Commission and  OP before the District Forum and the Respondent (hereinafter also referred to as Complainant) was Respondent  in the said FA/27/2016 before the State Commission and Complainant before the District Forum in CC/16/2013.

3.       Notice was issued to the Respondent on 19.07.2019.  Parties filed Written Arguments/Synopsis on 01.12.2023 (Petitioner) and 07.12.2023 (Respondent) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -

The Respondent/complainant contacted the Petitioner/OP for construction of his house, in lieu of amount of Rs.13,50,000/- within a period of 6 months.  Both the parties entered into an agreement executed on 04.11.2010 mentioning the terms and conditions for construction of the house of Respondent and specifications of goods.  The amount as agreed to was paid to the Petitioner.  On, 28.01.2012, Respondent entered into his newly constructed house, he noticed that despite payment of entire amount as per agreement and additional amount of Rs.2,15,771/-, OP failed to complete the construction of the house as per particulars in the agreement and there are various defects.  The complainant asked the OP for completion of incomplete works.  The OP, despite assurance has neither repaid the outstanding amount of the complainant and nor completed the work and has not repaired the discrepancy and errors found in the building.  The OP came to complete the overall construction work, but ignored each and every fact of the complainant and avoided the matter.  The Complainant sent a legal notice on 08.01.2013 through Advocate to the OP for completion of construction work left in the construction of the building and for recovery of amount of Rs.2,15,771/- outstanding amount with the Petitioner.  On 17.05.2013, the Respondent got the inspection of his house done from Shri SS Rana, Advocate, Sh. BS Ananya, Advocate, Shri Deepak Bhandari, Advocate and Zila Panchayat Sadasya and Sh. Jakhmola.  They found that there was some incomplete construction work left to be completed.  The Petitioner signed the inspection report.  Thereafter, again on 27.05.2013, Respondent again sent a legal notice to the Petitioner through his Advocate for recovery of amount of Rs.2,15,771/- . On 30.05.2013, the Petitioner got total clearance of accounts done , wherein the outstanding amount remaining amount was found Rs.1,94,406/- instead of Rs.2,15,771/- claimed by the complainant in legal notice.  On 10.07.2013 the complainant filed complaint before the District Forum.

5.       Vide Order dated 22.12.2015 in the CC 16/2013,  the District Forum allowed the complaint and passed the following order:  

“The Complaint of the Complainant is hereby allowed and the Opposite Party is hereby directed that within a period of 2 months from the date of order that is with effect from 22.12.2015, he shall complete the overall incomplete work detailed in the Para No.5 of this judgment, otherwise, the Opposite Party shall make payment of Rs.2,50,000/- (Rupees Two Lakhs fifty Thousand Only) estimated loss of amount on account of above mentioned incomplete work, with interest @ 6% per annum on the above amount with effect from the date of Institution of Complaint that is with effect from 10.07.2013, till date of its payment. As well, in above both situations, the Opposite Party is hereby directed to make payment of Rs.10,000/- to the Complainant on account of mental and physical harassment and litigation charges.”

6.       Aggrieved by the said Order dated 22.121.2015 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 27.11.2018 in FA No. 27/2016 dismissed the appeal for want of prosecution.

7.       Petitioner(s) have challenged the said Order dated 27.11.2018 of the State Commission mainly on following grounds:

1. Hon’ble Supreme Court of India has laid down the law that a party should not suffer for the fault of his lawyer.  Petitioner relies upon judgments of Hon’ble Supreme Court in Smt. Lachi Tewari v. Director of Land Records, reported in (1984) (supp) SCC 4321  and Rafiq & Anr. V. Munshilal and Anr., reported in (1981) 2 SCC 788.
2. The State Commission failed to appreciate that proceedings before the Consumer Fora are inquisitorial and not adversary.  The State Commission failed to appreciate that even in the absence of Appellant, State Commission ought to have decided the appeal on merits. The National Commission in Deepak Jaiswal vs. The Oriental Insurance Co. (2006) 1 CPJ 29, has held that “Therefore, in our view, the State Commission, in such cases, ought to have decided the appeal on merits even in the absence of the Complainant.  That would have been a rationale and non-technical approach which is the mandate of law”.

3. The State Commission failed to appreciate that Petitioner is an illiterate layman which is completely dependent upon his counsel for conducting the case and the Appellant is a villager living in a remote area and it was not possible for him to be present for the hearing of appeal on each and every date of hearing. 

4. The State Commission failed to appreciate that petitioner has done everything in his power to effectively pursue the appeal and was assured by his advocate that he need not attend hearings personally.

5. The State Commission failed to appreciate that no prejudice would be caused to the Respondent if the appeal would be decided on merits. 

8.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below. 

8.1     It is contended by the Petitioner that the State Commission dismissed the appeal for want of prosecution as the advocate for the petitioner herein was not present at the time of hearing of appeal.  Petitioner is an illiterate resident of Jaihari Khal, a remote village in Uttarakhand, working as a contractor constructing buildings for monetary consideration as a source of his living.  Respondent, a retired Subedar and petitioner entered into construction agreement on 04.11.2010 for the Respondent’s house, detailing various terms and conditions for an amount of Rs.13,50,000/- The petitioner completed the construction under the Respondent’s supervision, using goods purchased by the Respondent.  The Respondent moved into the house in 2012, he was initially satisfied.  After a year, he sent a legal noticed through his advocate claiming an outstanding amount of Rs.2,15,771/- and requesting completion of minor cosmetic work.  Respondent filed complaint and District Forum allowed the complaint.  It is further contended that both Petitioner and Respondent filed Appeal(s) before the State Commission.  Appeal of Respondent for enhancement of amount awarded was registered as Appeal No. 12/2016.  The Petitioner also challenged the order dated 22.12.2015  of District Forum, by way of Appeal No. 27 of 2016, on the ground that the present case has been filed for recovery of money and was beyond the competence of the Consumer Forum as the same falls within the purview of Civil Court of competent jurisdiction and that the judgment of  District Forum is liable to be set aside being perverse as the same relies on the report prepared by the Respondent himself and not by an independent third party.  State  Commission issued notice in Appeal and directed stay of operation of order of District Forum. On 27.11.2018, the State Commission dismissed the Appeal for want of prosecution as the advocate representing petitioner was not present to argue the appeal.  Apparently, this was only the second time that the advocate engaged by the Petitioner was not present for arguing the appeal.  On the same day cross appeal filed by the Respondent was dismissed as the Respondent herein did not want to press his appeal further.  In support of his contention, the Petitioner has relied upon various judgments by the Hon’ble Supreme Court and this Commission as cited in the preceding paras and following:

a)   Softvision BiotechNo ogy & Science College v. Ruchika Guresh, reported as 2014 SCC OnLine NCDRC47.

b)      SBI Cards & Payments Services Pvt. Ltd. Vs. H.S. Batra, reported in 2016 SCC OnLine NCDRC 2681.

c)       Hanuman Vs. Oriental Insurance Co. Ltd. & Ors. , reported in 2016 SCC OnLine NCDRC 424.

d)      Prem Narayan Vs. Manager, National Insurance Co., reported in 2016 SCC OnLine NCDRC 1602.

8.2     On the other hand Respondent/complainant contended that the Petitioner is a contractor and is used to perform the work of building construction on contract.  The complainant contacted the Petitioner for construction of his building and for that written agreement was executed on 04.11.2010.  The marriage of daughter of complainant was fixed for 07.06.2011 and as per conditions of the Agreement, the petitioner was supposed to complete the construction work of the house and hand over the key of the constructed house to the complainant, within a period of 6 months.  As per the Agreement, the contract of overall construction work was fixed in lieu of an amount of Rs.13,50,000/- against the above condition,  the Petitioner obtained Rs.13,74,000/- from the complainant from time to time and acknowledged the same.  The complainant paid the amount with the hope that the marriage of his daughter may get solemnized and building may be prepared and ready at the earliest. Petitioner also demanded Rs.1,91,771/- for other additional material.  As per the Agreement executed by the Petitioner, in addition to the fixed amount, the additional amount of Rs.2,15,771/- was also received by the Petitioner.   Even after receiving the amount more than the fixed amount, the Petitioner did not constructed the building within prescribed time and due to which, the Complainant was compelled to get the marriage of  his daughter and thereafter reception solemnized somewhere else.  The Petitioner/OP also borrowed as loan of Rs.1,00,000/- (which was paid through a cheque) from the complainant for his individual need with the assurance that he will return after a period of one month.  Out of which the Petitioner has returned Rs.50,000/- on 23.-07.2011 and rest loan amount of Rs.50,000/- has still not been returned back by the Petitioner to the complainant.  The complainant entered his newly constructed house on 28.01.2012 and found that construction was not complete and the material was not used in the construction in accordance with the conditions detailed in written Agreement.  It is further contended that the complainant has got the inspection of his house done on 17.05.2013 from Shri S.S. Rana Advocate, Shri B.S. Ananya, Advocate, Shri Deepak Bhandari, Advocate and Zila Panchayat Sadasya and Shri Jakhmola and all of them have found that there is incomplete construction and that the discrepancies were found in the construction work.  In the presence of all these people, the Petitioner has given assurance      to complete the construction before the rainy season and written consent was also taken from him whereon the people present there, have made their signatures.  Despite it, the Petitioner has not done any construction work and the outstanding amount of the complainant was also not paid by him.  In support of his contention, the Respondent has relied upon the judgment of Hon’ble Supreme Court in Benny D’Souza and Ors. Versus Melwin Dsouza & Ors., Special Leave to Appeal(C) No(s) 23809/2023, decided on 24.11.2023.

9.       In Rafiq. & Anr. (supra) Hon’ble Supreme Court observed as follows:-

    “………The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted……..”.

10.     In Benny D’Souza and Ors. Versus Melwin Dsouza & Ors. (supra), Hon’ble Supreme Court observed as follows:-

“The appellants herein are the plaintiffs who were the appellant in RSA No.196/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available as his cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation on behalf of the appellants before the High Court.

Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for nonprosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits by stating that no substantial question of law was made out. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal.

Per contra, learned counsel appearing for the respondent supported the impugned judgment and contended that the appellants consistently failed to appear before the High Court and therefore, the High Court had no option but to pass the impugned judgment and that there is no merit in the appeal.

Having heard learned senior counsel for the appellants and learned counsel for the respondents, at the outset, we extract Order XLI Rule 17 of the CPC which reads as under:

"17. Dismissal of appeal for appellant’s default :- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.”

The Explanation categorically states that if the appellant does not appear when the appeal is called for hearing it can only be dismissed for non-prosecution and not on merits.

However, the impugned judgment is a dismissal of the appeal on merits which is contrary to the aforesaid provisions and particularly the Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside.”

11.     In  Harbans Pershad Jaiswal V. Urmila Devi Jaiswal (2014) 5 Supreme Court Cases 723, the Hon’ble Supreme Court observed as follows:-

“ 11. It is clear from the above that whereas an appeal can be heard on merits if the respondent does not appear, in case the appellant fails to appear it is to be dismissed in default. The Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the appellant does not appear, in contradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with readmission of appeal "dismissed for default", where the appellant does not appear at the time of hearing, Rule 21 talks of "rehearing of the appeal" when the matter is heard in the absence of the respondent and ex parte decree made. In Abdur Rahman case, this Court made it clear that because of non- appearance of the appellants before the High Court, the High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the Explanation to Order 41 Rule 17 CPC and by deciding the appeal of the appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court.

12. In Ajit Kumar Singh case as well, the same legal position is reiterated as is clear from para 8 of the said judgment which is reproduced below: (SCC p. 612)

"8. There can be no doubt that the High Court erroneously interpreted Rule 11(1) of Order 41 CPC. The only course open to the High Court was to dismiss the appeal for non-prosecution in the absence of the advocate for the appellants. The High Court ought not to have considered the merits of the case to dismiss the second appeal. (See Rafiq v Munshilal.) The same view was reiterated in Abdur Rahman v. Athifa Begum."

12.     In Sri Prabodh Ch. Das and Anr. Vs. Mahamaya Das & Ors. Civil Appeal No. 9407 of 2019 decided on 13.12.2019, Hon’ble Supreme Court observed as follows:-

“9. Explanation to sub-­rule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976 conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub­ rule (1) of Rule 17 of Order 41 of CPC. Therefore, the explanation was introduced w.e.f 01.02.1977, to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.

10. This position has been clarified by this Court in Abdur Rahman and others v. Athifa Begum and others, wherein it was held that High Court cannot go into the merits of the case when Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977) 1996 (6) SCC 62 there was non­appearance of the appellant. In Ghanshyam Dass Gupta v. Makhan Lal, this Court has reiterated the legal position as under:

“Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the purport and meaning of sub­rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant’s default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to sub­rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub­rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non­appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.”

13.     Now we will take a look at the specific provisions of Consumer Protection Act 1986 on the subject.

(a)      Section 13 deals with procedure on admission of complaint (these provisions are applicable to District Forum, State Commission as well as National Commission.  Section 13 (2)(c) states as follows:

“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.”

(b)     Section 15 provides that any person aggrieved by an order of District Forum may prefer an appeal against such order to the State Commission.  Section 19 A provides as follows:

     “19A. Hearing of appeal.—An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission:

Provided that no adjournment shall be ordinarily granted by the State Commission or the National Commission, as the case may be, unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by such Commission:

Provided further that the State Commission or the National Commission, as the case may be, shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act:

Provided also that in the event of an appeal being disposed of after the period so specified, the State Commission or the National Commission, as the case may be, shall record in writing the reasons for the same at the time of disposing of the said appeal.”

(c)      Rule 15 of the Consumer Protection Rules, 1987 deals with proceedure for hearing of the appeal.  Rule 15(6) proves as follows:

“15. Procedure for hearing the appeal-- (1) Memorandum shall be presented by the appellant or his agent to the National Commission in person or be sent by registered post addressed to the Commission.

(2)  Every memorandum filed under sub-rule (I) shall be in legible handwriting preferably typed and shall set forth concisely under distinct heads, the grounds of appeal without any argument or narrative and such grounds shall be numbered consecutively.

(3)  Each memorandum shall be accompanied by a crossed demand draft as referred to in rule 14A  and by a certified copy of the order of the State Commission appealed against and such of the documents as may be required to support grounds of objection mentioned in the memorandum.

(4)  When the appeal is presented after the expiry of the period of limitation as specified in the Act, the memorandum shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the National Commission that he has sufficient cause for not preferring the appeal within the period of limitation.

(5)  The appellant shall submit four  copies or such number of copies of  the memorandum to the Commission for official purpose.

(6)  On the date of hearing or on any other day to which hearing may be adjourned, it shall be obligatory for the parties or their agents to appear before the National Commission . If appellant or his agent fails to appear on such date, the National Commission may in its discretion either dismiss the appeal or decide ex-parte on merits. If the respondent or his agent fails to appear on such date, the National Commission shall proceed ex-parte and shall decide the appeal on merits of the case.

(7)  The appellant shall not, except by leave of the National Commission, urge or be heard in support of any ground of objection not set forth in the memorandum but the National Commission, in deciding the appeal, may not confine to the grounds of objection set forth in the memorandum:

Provided that the Commission shall not rest its decision on any other ground other than those specified in the memorandum unless the party who may be affected thereby, has been given, an opportunity of being heard by the National Commission.

(8)  No adjournment shall ordinarily be granted by the National Commission, unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Commission. The National Commission may also adjourn the hearing of the appeal suo motu, on such terms as it may think fit and at any stage of the proceedings for reasons to be recorded in writing. The appeal shall be decided, as far as possible, within ninety days from the date of its admission. In the event of an appeal being disposed of after the period so specified, the National Commission shall record in writing the reasons of the same at the time of disposal of the said appeal.

(9) The order of the National Commission shall be communicated to the parties concerned free of cost.”

14.     The main ground/ legal law point raised by the Petitioner during the hearing is that the State Commission went wrong is dismissing their Appeal on account to of default in appearance of two dates. It is contended by the Petitioner that in such a situation the State Commission was bound to consider the Appeal on merits and not dismiss for want of prosecution.

15.     No doubt there are no corresponding provisions akin to Rule 15(6) of  Consumer Protection Rules 1987 cited above with respect to dealing of appeals by State Commission, when the provisions of Consumer Protection Act 1986 and Consumer Protection Rules 1987 are read in entirety keeping in view the provisions of Section 19A cited, we are of the considered view that State Commissions can not keep such appeals pending for long periods, have to dispose off the same within a reasonable period, and if the appellant does not appear despite reasonable opportunity being given; State Commission has discretion to either dismiss the appeal or decide ex parte on merits on the lines of provisions of Rule 15(6) applicable to National Commission.  We are not in agreement with the contentions of the Petitioner herein that in such a situation, State Commission is/was bound to consider the appeal on merits and not dismiss for want of prosecution.

16.     Vide order dated 27.11.2018, State Commission dismissed the Appeal for want of prosecution, observing as follows:

“None is present on behalf of the appellant.

Sh. Bipin Kumar Singh, learned counsel for respondent is present.

On 05.04.2018, appellant was also not present.  The appeal was adjourned with a note that “If the appellant does not appear on the next date fixed, the appeal would be heard in the absence of appellant.”

Therefore, appeal is dismissed for want of prosecution.”

17.     Hence, in view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  We hold that in cases where appellant does not appear before the State Commission despite reasonable opportunity being given, State Commission may in its discretion either dismiss the appeal or decide ex-parte on merits.

18.     However, keeping in view the entirety of facts and circumstances of the case, and in the interest of justice, we remand the matter back to State Commission for fresh consideration on merits after hearing both sides. This is subject to the condition of Petitioner herein depositing, within 3 weeks, an amount of Rs.10,000/- with the Registry of State Commission, for paying to the Respondent herein, to defray his travel and miscellaneous expenses to deal with the case before the State Commission.  The amount will be paid by the State Commission to the Respondent herein on or after his first appearance before the State Commission.  Both sides to appear before the State Commission on 27.03.2024.  Thereafter, the State Commission will have discretion to fix further date of hearing as per its own convenience.  The State Commission may dispose off the case as soon as possible, preferably within three months from today.

19.     The pending IAs in the case, if any, also stand disposed off.