Meghalaya

StateCommission

MA/06/2015

Shri Deepak V. Mirpuri - Complainant(s)

Versus

Smti S.D Mirpuri and Others - Opp.Party(s)

Mr.S.Thapa

06 Nov 2015

ORDER

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

Misc Case No. 6 of 2015

in F.A No. 5 of 2014

BEFORE

Hon’ble President: Mr. Justice P.K. Musahary (Retd.)

Hon’ble Senior Member: Mr. Ramesh Bawri

 

Shri Deepak Mirpuri

Shillong

                                                                  ………Applicant/Appellant 

Versus

                  

1. Smti Sima Das Mirpuri 

Shillong

2. Senior Post Master 

General Post Office 

Shillong

3. Senior Superintendent of Post Office 

Meghalaya Division, GPO 

Shillong - 793001

                                                          …...Opposite Parties/ Respondents 

For the Appellant : Mr. S. Thapa, Advocate

For Respondent No. 1  : Mr. S. Pandit, Advocate

For Respondent Nos. 2 and 3 : Nemo

Date of Order : 6.11.2015

Whether to be Reported : Yes    

O R D E R

Per - Shri Ramesh Bawri, Senior Member : This is an application filed by the 

Appellant in F.A. No. 5 of 2014 praying for recalling / setting aside the order 

dated 24.7.2015 passed by this Commission whereby the related Appeal was 

dismissed for default. We have heard Shri S. Thapa, learned counsel for the 

Applicant / Appellant and Shri S. Pandit, learned counsel for OP / Respondent 

No.1.

For the disposal of this Application we need not delve into the merits of 

the Appeal and suffice it is to say that the Opposite Party No.1 herein 

(Respondent No.1 in the Appeal) filed Consumer Complaint No. 3 of 2008 

before the learned District Forum, Shillong against O.P./Respondent Nos. 2 & 3 

herein, seeking directions for release of the maturity amount and interest on 

various National Savings Certificates and Kisan Vikas Patras standing in the 

name of late Vashdev Hoondamal Mirpuri in which she (O.P. No. 1) had been 

named as the nominee. Subsequently the Applicant came to be impleaded as a 

party in the said Complaint case.

2. Upon hearing the parties, the learned District Forum, vide order dated 

10.7.2014, directed O.P. Nos. 2 & 3 to settle the claim of O.P. No. 1 upon 

submission of the necessary documents as legally required. Aggrieved by this 

order, the Applicant filed the Appeal F.A. No. 5 of 2014 before this Commission.

3. The said Appeal was listed for hearing on several occasions and finally 

dismissed on 24.7.2015 by this Commission for default in appearance at the 

hearing of the Appeal on the part of the Appellant. The said order dated 

24.7.2015 passed by this Commission is reproduced below ad verbatim : 

“None appeared for the Appellant without any step. None appeared for 

the Appellant on 3 (three) earlier occasions on 17.10.2014, 14.11.2014 

and 28.11.2014 too. The Respondent No. 1 is represented by Mr. S. 

Pandit, learned counsel for the Respondent. Appeal stands dismissed 

for default. Interim order, if any, stands vacated.” 

4. The Appellant has now filed the instant Application praying that the order 

dated 24.7.2015 be recalled / set aside. Having heard both sides and perused 

the records, written submissions and judgments relied upon, we find that the 

two issues that arise in this Application and which need to be decided are as 

follows:

(i)  Whether the State Commission while exercising the Appellate 

Jurisdiction under the Consumer Protection Act, 1986 are conferred with 

the power to dismiss an appeal for default, without disposing it on merit, 

when the Appellant fails to appear at the hearing?

(ii)  If so, whether such power of dismissal of an Appeal includes the 

power to recall such an order?

5. The grounds and jist of the arguments of the learned counsel for the 

Applicant, which have also been submitted in the form of written submissions, 

are as follows : 

(A) Issue No. 1 :  In respect of Issue No.1, the Appellant submits that 

the action of the State Commission in dismissing the appeal for default and 

more so without referring to the merits of the case is in contravention of the 

very purpose and object of the Consumer Protection Act, 1986 (hereinafter 

referred to as the 'Act') as there is no provision in the Consumer Protection Act 

which empowers the Commission to dismiss an Appeal for non prosecution. As 

such the Commission ought not to have dismissed the appeal without referring 

to the merits of the case and the said action is in contravention of a catena of 

decisions of the Hon'ble National Commission as well as the Hon'ble Supreme 

Court.

The Appellant further submits that it has to be borne in mind that in the 

instant appeal the State Commission is exercising its powers of Appellate 

Jurisdiction under section 15 of the Act and the same cannot be compared on a 

similar footing when the State Commission is exercising its original jurisdiction 

under section 17 of the Act and that the nature of proceedings to be followed 

and the powers which are required to be exercised in case of an appeal 

preferred under section 15 and in complaints filed under section 17 of the Act is 

clearly distinguished by the legislature. The State Commission being a creature 

of the statute cannot travel beyond the powers conferred on it and cannot club 

the powers unless expressly envisaged in the provisions of the Act. The power 

of dismissal lies with the Commission only when it is exercising its original 

jurisdiction under section 13 (2) (b) and (c) of the Act and not under its 

appellate jurisdiction under section 15 of the Act.

Further, that the legislature has nowhere expressly provided under 

section 15 of the Act that an appeal can be dismissed for default without 

hearing on merits because the State Commission, when sitting as an Appellate 

Authority, is bound to refer to the materials on record, pleadings of the case, etc 

and to make every possible endeavor to dispose of the appeal and not to 

dismiss the appeal in a routine fashion which would result in contravention of 

the spirit and essence of the Act. The Consumer Protection Act, 1986 is 

enacted to provide inexpensive and speedy remedy and dismissing the appeal 

for default without referring to merits would be in violation of various 

pronouncements of Hon'ble National Commission as well as Hon'ble Apex 

Court besides adversely affecting the parties as the same would become 

cumbersome and unaffordable for the aggrieved party.

Therefore, the State Commission ought to have not dismissed the 

appeal for default without referring to the merits of the appeal the Order dated 

24.07.2015 is liable to be recalled/ withdrawn for the ends of justice. Reliance 

has been placed on:

1. 1993 (1) CTJ 843 = 1993 (III) CPR 135 (General Manager, 

Telecom, Rajkot Vs. Jayantilal Hemchand Gandhi) 

2. (2001) 10 SCC 659 = AIR 2000 SC 3506 (HVPNL Vs. Mahavir).

3. Judgment of the National Commission dated 17.02.2014 

passed in Revision Petition No. 3609 of 2013 (Softvision 

Biotechnology & Science College Vs. Ruchika Guresh.) 

(B) Issue No. 2 :  As regards Issue No. 2 as to whether the State 

Commission is conferred with the power to recall / set aside its own ex-parte 

order of dismissal for default it is submitted by the Appellant that the 

Commission while dismissing the appeal for default exercises its powers under 

Appellate jurisdiction and not original jurisdiction and that the Act nowhere 

confers power on the Commission to dismiss the appeal on default without 

referring to the merits of the case. Further that it is an established rule that an 

express grant of statutory power carries with it by necessary implication the 

authority to use all reasonable means to make such grant effective and that 

includes power to grant stay and power to undo things even though the statute 

may be silent on the issue as held by the Hon'ble Apex Court in Income Tax 

Officer, Cannanore Vs M.K. Mohammed Kunhi, (AIR 1969 SC 430, Para 4).

Further, that Section 21 of the General Clauses Act specifically provides 

that where in any Central Act or Regulation a power to issue notifications, 

orders, etc is conferred, then that power also includes the power to add to, 

amend, vary, rescind notifications, orders, rules or bye laws etc,. Section 21 of 

the General Clauses Act, 1987 is basically a rule of construction to be applied 

in the absence of any specific provisions enshrined in the Act. Taking recourse 

to the provisions of section 41 of General Clauses Act and also of the ratio laid 

down by the Hon'ble Supreme Court of India in Income Tax Officer case 

(supra), it is submitted that this Commission in exercise of the Appellate 

jurisdiction has powers to recall its ex-parte Order of dismissal dated 

24.07.2015 as it is settled law that power to dismiss conferred on a statutory 

body by necessary implication also confers powers to recall, even though such 

powers are not specifically provided in the Consumer Protection Act.

Furthermore, the Appellant submits that the principle of ubi jus ibi 

remediam (where there is a right there is a remedy) is very much applicable to 

the case at hand, reiterating that if the State Commission has the right to 

dismiss an appeal on default without disposal on merits, then the State 

Commission simultaneously carries the remedy with it and therefore the State 

Commission can recall/set aside its order as a remedial measure.

The Appellant also invites the attention of this Commission to the adage 

of law "Actus Curiae Neminem Gravabit” i.e., an act of Court shall not prejudice 

any person. In the instant case, the Commission had no jurisdiction/ powers 

while sitting as an Appellate Forum to dismiss the Appeal for default without 

referring to its merits and in doing so, this Commission has erred in law and has 

thus prejudiced the Appellant. As such, following the aforementioned principle 

and also the principle that ''justice should not only to be done, it must manifestly 

appear to have been done”, this Commission has ample power to undo an act 

which has prejudiced the litigant and pave the way for justice instead of making 

it blurred. As such the Order of dismissal dated 24.07.2015 is liable to be 

recalled and decided on merits for the ends of justice.

Yet further, according to the Appellant, the ratios as laid down by the 

Hon'ble Apex Court in the cases of A. R. Antulay reported in (1988) 2 SCC 

602 and Grindlays Bank Ltd. Vs Central Govt. Industrial Tribunal (AIR 1981 

SC 606) squarely cover the issue in this instant appeal in as much as the 

Hon'ble Apex Court in the said cases has held that it is the duty of the court to 

rectify its own mistake and while making such rectification, the court has 

unfettered inherent powers to correct its mistake even if such powers are not 

specifically provided in the statute.

6. On the other hand, learned counsel for O.P. No. 1 stoutly objects to 

recall of the order dated 24.7.2015 and relies upon the following judgments to 

buttress his stand that this Commission has no power or legal authority to 

review / recall its orders and such power only lies with the Hon’ble National 

Commission. He places reliance on the following decisions :

(i) (1999) 4 SCC 325 (Jyotsana Arvindkumar Shah Vs Bombay 

Hospital Trust)

(ii) (2011) 9 SCC 541 (Rajeev Hitendra Pathak Vs Achyut 

Kashinath Karekar)

(iii) (2013) 2 SCC 754 (Lucknow Development Authority Vs 

Shyam Kapoor)

(iv) Revision Petition No. 2318 of 2012 decided by the Hon’ble 

National Commission on 19.2.2013 (Aviva Insurance Co. Ltd. Vs 

Hemal Balakrishan Makwana) 

7. In reply the Appellant’s counsel submits that the cases relied on by the 

Respondents may not be relevant and not of much assistance to them for the 

purpose of deciding the issues at hand as they are completely irrelevant to the 

present facts and circumstances of the appeal. All decisions are to be applied 

in a case after examining the entire facts and circumstances of the case at 

hand along with the judicial decisions which are sought to be relied and upon 

appropriate finding that the judicial decisions are relevant to the present case at 

hand. It is submitted that the Judgments relied on by the Respondents are not 

relevant for the purpose of adjudication of the issue in this instant appeal as in 

the said cases the Hon'ble Apex Court was deciding on the issue of powers of 

setting aside / recall by the Commission while exercising its original jurisdiction 

when complaints are made directly before the State Commission and not while 

sitting as an Appellate Forum. Further, the Orders that were challenged in all 

the above cases were passed on merits after referring to the pleadings of the 

cases and hearing the parties which is not the case with the instant appeal, the 

facts and circumstances being entirely different, whereas the issue herein is 

whether the Commission in the first place could have dismissed the appeal for 

default without referring to the merits of the case when no such power of 

dismissal is specifically conferred by the Act and whether an order for such 

dismissal can be recalled/ set aside. 

8. Having given our deep consideration to the matter, we are of the firm 

view that the stand of the Applicant that the State Commission cannot dismiss 

an Appeal for default even when the Appellant fails to appear on the date fixed 

for hearing on merits is completely misplaced. Its stand that, despite such 

default, the State Commission is duty-bound to decide the Appeal on merits, 

even without hearing the Appellant, is equally untenable. In this connection we 

may first refer to Rule 10 of  the Meghalaya Consumer Protection Rules, 

1988 which itself reads as follows: 

10. Procedure for preferring appeals (before) the State Commission:- 

….

(6) The appellant or his authorised agent should appear on the date 

fixed for hearing, failing which the State Commission may, in discretion, 

either dismiss the appeal or decide it ex-parte on its merit; 

9. Furthermore, Rule 15 (6) of the Consumer Protection (Second 

Amendment) Rules, 2006 framed by the Central Government reads thus: 

15. Procedure for hearing the appeal 

….

(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.

10. These Rules apart, it is well settled that it is only the Hon’ble National 

Commission that is endowed with powers to recall its orders in cases which are 

dismissed for default and the State Commissions and District Forums can 

exercise no such powers under the Consumer Protection Act, 1986. The 

relevant section 22A of the Consumer Protection Act which reads as follows 

itself makes this position of law very clear:

“22 A  - 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”.

11. Furthermore, we are duty bound to follow the dicta of the 3-Judge bench 

of the Hon’ble Supreme Court which has decided this issue unequivocally in 

Rajeev Hitendra Pathak & Ors vs Achyut Kashinath Karekar & Anr [(2011) 

9 SCC 541]. We quote below the relevant paragraphs, with the striking parts 

highlighted by us, both in this judgment and the others following:

 

“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 Jyotsna’s Case [ (1999) 

4 SCC 325 ] 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.”

12.       This judgment was further echoed by the Hon’ble National Commission 

in The Dean, Chhatrapati Shivaji Maharaj Hospital Vs Ramesh Gaikwad 

(Revision Petition No. 2924 of 2012) wherein it held as follows:

“The appeal filed before the State Commission was dismissed in 

default because of non appearance. There is no provision for review 

by the District Forum or State Commission. The authority of the 

Hon’ble Supreme Court in Rajeev Hitendra Pathak’s case had come in 

August, 2011. It was the duty of the counsel for the petitioner to withdraw 

the application for restoration immediately. The delaying tactics in this 

case are apparent.”

13.       It would also be relevant to state here that in New India Assurance Co. 

Ltd. Vs R. Srinivasan (AIR 2000 SC 941) para 18, although over-ruled on 

other grounds in Rajeev Hitendra Pathak (supra), a 2-Judge Bench of the 

Hon’ble Apex Court had earlier held:

“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”.

14. It would also be beneficial to notice the provisions of the CPC regarding 

dismissal of Appeals for an Appellant’s default. Order 41 Rule 17(1) CPC 

reads:

(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 take 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.”

15. In Ghanshyam Dass Gupta vs Makhan Lal  [ (2012) 8 SCC 745 ] 

which was a case of dismissal for default, although arising under the provisions 

of Order 41 Rule 17(1) CPC quoted above, the Hon’ble Supreme Court held as 

follows:

“Rule 17(1) of Order 41 deals with the dismissal of appeal for appellant’s 

default. The above mentioned provision, even without explanation, if 

literally read, would clearly indicate that if the appellant does not 

appear when the appeal is called for hearing, the court has to 

dismiss the appeal. The provision does not postulate a situation 

where, the appeal has to be decided on merits, because possibility of 

allowing of the appeal is also there, if the appellant has a good case on 

merits even if nobody had appeared for the appellant.”

Similar is the view taken by the Hon’ble Supreme Court in Abdur 

Rahman vs Athifa Begum  [ (1996) 6 SCC 62) ]

16. In The Secretary Department of Horticulture, Chandigarh and 

another Vs Raghu Raj  (AIR 2009 SC 514) which too was a case arising 

under the provisions of the CPC, at para 44 the Hon’ble Supreme Court has 

unequivocally put an embargo on the disposal of an Appeal on merits when the 

Appellant or his Advocate fails to appear at the hearing while making it clear 

that in such an event the Appeal can be dismissed for default.

17. The various judgments cited by the Applicant have all been studiously 

perused by us but, in our considered view, these either do not apply to the facts 

of the case or do not have any precedentary value in the face of the various 

binding judgments and the Rules cited by the Opposite Party and by us which 

are also more directly applicable to the issues involved herein.

18. In the light of the discussions above and the judgments and rules cited 

by us above, we therefore hold that:

(i) In fit cases, the State Commission is unquestionably empowered 

to dismiss an Appeal for non-prosecution / default in appearance of the 

Appellant or his counsel.

(ii) The State Commission has no obligation to keep an Appeal 

pending despite the failure of the Appellant or his counsel to appear 

when the matter is called for hearing.

(iii) No distinction in the power of dismissal can be made between an 

Appeal and a Complaint.

(iv) Powers which have not been expressly given to the State 

Commission under the provisions of the Consumer Protection Act, 1986 

cannot be exercised by the Commission.

(v) Once passed, the State Commission has no power to recall an 

order of dismissal of an Appeal for default and to restore the Appeal.

19. In the facts and circumstances of the present application we are 

therefore unhesitatingly of the view that, in the instant case, dismissal of the 

Applicant’s Appeal vide this Commission’s order dated 24.7.2015 is in complete 

accordance with law, the Commission has not contravened any binding 

decision either of the Hon’ble Supreme Court or the Hon’ble National 

Commission and that the Commission has nowhere erred in law, as claimed by 

the Applicant. Consequently, none of the grounds raised by the Applicant 

warrant recalling of the said order dated 24.7.2015. For the sake of argument 

alone, even if such recall had been warranted, this Commission would have 

acted illegally and in contempt of the Hon’ble Supreme Court and travelled 

beyond the powers conferred upon it by the C. P. Act, 1986, had it proceeded 

to recall such an order.

20.       In view of all that we have stated above, we are unable to entertain the 

present application and have no option but to dismiss it. The application thus 

stands disposed of as dismissed. No costs.

  

      SENIOR MEMBER                                    PRESIDENT