Misc.App.filed on: 23-11-2020
Disposed on: 23-12-2020
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMKURU
Miscellaneous Application No.01/2020
DATED THIS THE 23th DAY DECEMBER, 2020
PRESENT
SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT
SRI.KUMARA.N, B.Sc., L.L.B, MEMBER
SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER
Petitioner: -
Sri.G.K.Srinivasa
S/o Late G.S.Kempaiah
Aged about 65 years
R/o Snehashree, 6th Main Road
2nd Cross, Sadashivanagara,
Tumakuru City
(By Sri.S.K.Mallikarjuna Advocate)
V/s
Respondents:-
1) The Manager/Chief Executive
Officer,
Sri Sri Uddaneshwara Credit Co-Operative Society Ltd,
Opp: State Bank of India, Town Police Station Road, Church Circle, Tumakuru City
2) The President
Sri.G.S.Shivakumar
Sri Sri Uddaneshwara Credit Co-Operative Society Ltd,
Opp. State Bank of India,
Town Police station road, Church circle, Tumkur City
And also available at
Sri.G.S.Shivakumar
President of Sri Sri Uddaneshwara Credit Co-Operative Society Ltd,
Ex.Zilla Panchayath Member,
Gulur Village, Gulur Hobli
Tumakuru Taluk.
ORDER ON ADMISSION
SRI.C.V.MARGOOR, PRESIDENT
The order has arisen out of Miscellaneous Petition filed by the complainant under Order 9 Rule 9 r/w Section 151 of CPC to restore the CC.No.9/2020 on the file of this Commission (Forum).
2. The complainant had filed CC.No.9/2020 against the respondents to pay the fixed deposit and recurring deposit amount with interest from the date of maturity till realization along with Rs.2.00 lakh compensation. The complaint came to be dismissed for non prosecution on 22-10-2020 for non appearance of complainant and their learned counsel.
3. We have heard the arguments advanced by the learned counsel for the petitioner and the point that would arise for determination is as under;
1. Whether this Commission is having power to
restore the complaint which was dismissed for want of prosecution?
4. Our findings on the above point is in the negative for the below;
REASONS
5. The learned counsel for the petitioner submitted that by exercising natural justice this application be allowed and restore the complaint to its file. It is averred in the application that due to Covid-19 the Forum was closed and after re-open it was necessary to issue notice to the parties about the hearing date. The complainant being represented by their learned advocate since beginning i.e. the complaint being filed through their learned advocate on 1-2-2020. Lockdown was declared on 24-3-2020 and lockdown was opened in the last week of May, 2020. After unlock or opening lockdown the complaint was posted for complainant’s evidence on 22-6-2020 i.e. for affidavit of complainant. Then on 27-7-2020, again 27-8-2020. In all these three adjournments the complainant and their counsel were remained absent as such cost of Rs.200/- and additional cost of Rs.200/- was imposed on 27-7-2020 and 27-8-2020. The complaint was adjourned for the affidavit evidence of complainant, payment of cost and additional cost on 22-10-2020. On the said date also the complainant and their counsel called out absent, no representation hence, the complaint came to be dismissed for non prosecution. Once the complaint is filed, it is the duty of the complainant to watch proceedings and take steps. No rule or circular to issue notice to the complainant after filing the complaint unless the complaint is remanded with specific direction from the Appellate Authority.
6. The Hon’ble Supreme Court in Rajeev Hitendra Pathak and others –vs- Achyut Kashinath Karekar and another (2011) 9 SCC 541. The Hon’ble three judges bench in Civil Appeal No.4307/2007 and 8155/2001 dated 19-8-2011 under Sections 22 and 22A of Consumer Protection Act, 1986 held power of District Forums and State Commissions to set aside the exparte order or recall or review their own order is not given. Power to set aside exparte orders, power of review not expressly given by statutes cannot be exercised. However, by virtue of Sections 22 and 22A after 2002 amendment, National Commission entitled to review its exparte orders.
7. They were conflicting decisions on this point as such the matter was referred to larger bench consisting of the Hon’ble three judges. In the above decision the main question which arises for consideration is whether the District Forums and the State commissions have the power to set aside the their own exparte orders or in other words have the power to recall or review their own orders. The State Commission, Maharashtra dismissed the complaint for want of prosecution. The State Commission Maharashtra recalled the order and restored the complaint. The National commission also upheld the order of the State Commission which challenged before the Hon’ble Supreme Court. The Apex Court in paragraph no.6 of the judgment observed that where the case is called up for hearing and the parties 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 peruse 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.
8. The Hon’ble Supreme court in paragraph no.25 of the judgment referred Section 13 of the CP Act, 1986 and Section 13 (2) (c) (3) says no proceedings complying with the procedure laid down in sub section (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. In paragraph no.36 of the judgment it is observed that on careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creature 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 the exparte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised. In our considered opinion, the decision in Jyothsana’s case laid down the correct law and the view taken in the later decision of this court in New India Insurance Co. Ltd is untenable and cannot be sustained. In Jyothsana’s Aravind Kumar Shah and others –vs- Bombay Hospital Trust (1999) 4 SCC 325 the Supreme Court held that the State Commission did not have the power to review or recall its exparte order.
9. In view of the decision of the Hon’ble Supreme Court the District Forums/State Commissions have no power to review or recall its own order of dismissing the complaint for want of prosecution. When this Commission is not having any power the question of exercising natural justice does not arise. In the result, we pass the following;
ORDER
This Miscellaneous application is dismissed as not maintainable.
HON'BLE MR SRI, C.V.MARGOOR.
President
