ORDER

18.01.2024

 SH. RAJESH, MEMBER

1. Vide this order we will decide an application filed by complainant seeking to Set aside the order dated 03.08.2023 and restore the original complaint which was dismissed due to non appearance of the complainant.
2. In brief the facts as narrated by the applicant that are that the complaint case bearing CC No. 1286/2015 has been dismissed due to non appearance of the complainant by this Commission vide its order dated 03.08.2023.

3. Aggrieved by the order dated 03.08.2023 the complainant has preferred the present application inter-alia contending that complainant went to Vrindavan for religious purpose on 02.08.2023 in morning and had planned to return back in the evening of the same day. On account of certain circumstances, the complainant could not return and got under compulsion to stay in Vrindavan on 04.08.2023.
4. It is stated that owing to compulsion of staying in Vrindavan, the date of hearing got skipped and complainant could not appear at the Commission. Also could not assign the matter to any other person so that at least someone could have appeared in the matter. That there was no malafide intention or ulterior motives in not making appearance in the matter, but the same happened on account of circumstances mentioned above and consequently the matter got dismissed in default. That the complaint has very good case on merits. Therefore the balance of convenience also lies in favour of the respondent. That an irreparable loss shall be caused to the Complaint in case the Order Dated   03.08.2023 is not set aside and complaint is not given an opportunity to further pursue and contest the matter. 
5. It is further stated on behalf of the applicant that non appearance of complainant was beyond control and not intentional but bonafide due to reasons above mentioned.

6. We have heard counsel for applicant and perused the record available before us. 

7. The bare perusal of the present application filed by the applicant reflects that the main relief which has been sought by the applicant is the restoration of the original complaint which was dismissed by this Commission due to non appearance of the Complainant as per the version of the applicant / Complainant.
8. Before dealing into the merits of the present application, it is imperative to ascertain whether the present application for review of the order is maintainable under the Act or not.
9. It is pertinent to mention here that the present applicant filed by the complainant seeking restoration of original complaint No. CC/80/2023. It is stated that in the garb of application for review the relief of restoration of original complaint cannot be granted. The original complaint cannot be restored by this Commission as there is no provision and power vests with the commission to restore the complaint dismissed in default of the complainant. The law is well settled that this Commission has no power to restore complaint or review order dated 22.04.2023. Let us peruse the relevant provisions which are stated here under:
10. The Consumer Protection Act, 2019 laid down the procedure before the District Commission from section 34 to 39. As per section 38 (9) (a to f) provides powers same as vested in a Civil Court under the code of civil procedure, 1908 while trying a suit in respect of the falling matters namely :-

1. The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
2. Requiring the discovery and production of any document or other material object as evidence;
3. Receiving of evidence on affidavits;
4. The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
5. Issuing of commissions for the examination of any witness, or document; and
6. Any other matter which may be prescribed by the Central Government.

11. The above mentioned provisions clearly established that the Commission as no vested his powers to restore the complaint dismissed for non appearance.  The powers are not included in section 38 (9) (a to f) CP Act, 2019. The power which is excluded cannot be assumed under section 40 by the Commission. Therefore, we are of considered opinion that this Commission has no powers to restore the complaint dismissed for non appearance. We are of considered  opinion that providing relief of restoration of complaint dismissed in default of the complainant is not within the powers of the Commission.
12. Now applying the principle of law, the present facts and circumstances of the case, on the basis of above observation and discussion we are of the considered opinion that present application is not maintainable in law. Hence, present application is dismissed as not maintainable. 

          Copy of the order be given to the parties free of cost as per order        dated 04.04.2022 of Hon’ble State Commission after receiving   the application from the parties in the registry. The orders be          uploaded on www.confonet.nic.in. File be consigned to record        room.

        Announced in open Commission on 18.01.2024.

(SANJAY KUMAR)              (NIPUR CHANDNA)             (RAJESH )

         PRESIDENT                       MEMBER                           MEMBER