Order No:5 dated 20.09.2022
(Siddhartha Ganguli, Member):-This order is arisen out of an application filed by the O.P No: 2/petitioner herein, u/s-40 of the C.P Act, 2019, for review of the order dated 16.06.2022 passed by this District Commission in c/w C.C-32 of 2022 and the O.P No:2/ petitioner prays for setting aside the said order as per grounds stated therein, which has been registered as R.A-01 /2022.
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By filing the petition, the O.P No: 2/ Petitioner herein stated that the O.P No:2 had received the notice of the Consumer Complaint and had gone through the same and as the corporate office of O.P No:2 situates at Chennai, the O.P No:2 made contact with its local office at Kolkata and appointed a junior Advocate who appeared, filed Vokalatnama and represented the case before this Commission on behalf of the O.P No:2.
It is further submitted by the Ld. Advocate for the O.P No:2 that since the corporate office of the O.P No:2 is based in Chennai, all documents are executed there and then couriered from Chennai to its local offices and thereafter submitted before the respective Courts, Forums and other offices through authorized representatives and/ or Counsels.
It is further submitted by the Ld. Advocate for the O.P No:2 that the Written Version of the instant Consumer Complaint was prepared and affirmed by the authorized person of the Company ,but due to delay caused in dispatching the document and further delay caused in receipt of the same at the local office at Kolkata ,the O.P No:2 could not file the same within the statutory period of time. As a result of which the District Commission on 16.06.2022 by its order decided to proceed with the case ex-parte against the O.P No:2.
It is further submitted by the Ld. Advocate for the O.P No:2 that there is /was no intentional latches and/or lacuna on the part of the O.P No:2 for submitting the W/V, but it is the geographical distance which comes into the midway as constraint, consequent to which the Consumer Complaint has been fixed for Ex-Parte against the O.P No:2.
Ld Advocate for the O.P No:2 further submitted that he has a strong case in his favor and unless and until the ex-parte order dated 16.06.2022 is vacated and opportunity is extended to him to file W/V, he would be highly prejudiced and would face irreparable loss and injury and therefore, he files the Petition U/S 40 of the C.P Act, 2019 praying for vacating the Ex-Parte order.
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Ld. Advocate for the O.P No: 2/ Petitioner further submitted that the order dated 26.06.2022 should be set aside by this District Commission as the O.P No:2 wants to contest the case and further submitted that under the new C.P. Act, 2019 provision has been made for review and that under section 40 of the C.P. Act, 2019 a power for review has been vested upon the District Commission and the District Commission has been empowered to set aside its own order by invoking and exercising the power vested upon it under sec-40 of the said Act.
Heard Ld. Advocates for the O.P No:2/ Petitioner.
On perusal of the petition of the O.P No:2 / Petitioner and other materials on record it transpires that the O.P No:2 received the notice on 11.04.2022. It is also seen that the O.P No:2 entered his appearance in the case record on 25.04.2022 and on that day Ld. Advocate for the O.P no:2 made a time prayer for filing W/V and the Dist. Commission allowed his prayer and fixed 03.06.2022 for filing W/V. It is further seen from the case record that on 03.06.2022 the O.P No:2 again filed time prayer on the ground of unavailability of some documents and this Commission allowed his prayer and further fixed 16.06.2022 for filing W/V by the O.P No: 1 & 2 as last chance, i.d ex-parte.
It further transpires from the Order No: 05, dated 16.06.2022 that the O.P No:2 further prayed time for filing W/V as per the grounds stated therein and as the statutory period of time is over , the Dist. Commission rejected his prayer and fixed the case for ex-parte hearing against O.P No:2 and fixed 08.08.2022 for evidence by the Complainant.
It is true that in order to succeed a petition the O.P No:2/ Petitioner has to point out any error or mistakes occurred in the order under challenge or he has to show that a substantial point of law has been ignored while passing the order.
Now the main question arises, whether the District Commission can review its own order or set aside its own ex-parte order?
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To find the answer to the question, we would like to have a look on the provision of section 40 of the C.P.Act, 2019 which runs as under:-
40. Review by District Commission in certain Cases:- “The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order”.
From the wording of the statute, it is clear that the District Commission shall have the power to review its order if there is an error apparent on the face of the record and an application may be filed by any of the parties or the Commission itself review the order suo-motu within 30 days from the date of the order. The scope and extent of the section is very limited. The provision made in the section is somehow akin to the sec-152 of the Code of Civil Procedure,1908. However, the District Commission cannot exercise the powers vested in Civil Courts under Sec-114 of the Code of Civil Procedure, 1908 and/or the provision for procedure laid down under Order 47 of the Code of the Civil Procedure,1908. The scope and extent of the Civil Courts under review is much wider than the District Commissions. In our view, the District Commission can review the order passed by it if there is an error apparent on the face of the record i.e, if there is an arithmetical or typographical mistake occurred or a substantial point law has been ignored that can be looked into by the lenses of review and can be corrected by an appropriate order.
It has been held in Avijit Tea Co( P) Ltd Vs Terai Tea Co, reported in (1996)10 SCC-174 that “review is barred in case of absence of error on record”.
Further, in Lakshmipriya Vs Parasoram, reported in (1989)2Cal HN-409, it was held that “where without any elaborate argument one could point to the error and show that there is such a substantial error of law which stares one in the face and opinious entertained about it and on which the impugned decision is grounded, a clear case of error apparent be made out to warrant review”.
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It was held in Lakshman Bhowmik Vs Satya Narayan Chakraborty, reported (1995)2 CHN-490 that “An error can be said to be one apparent on the face of the records only when such error is patent and can be located without any elaborate argument without any scope for any controversy with regard to such error, which as if, at a glance stares at the face”.
Here, in the order dated 16.06.2022 there is no such mistake occurred and the O.PNo:2/ Petitioner failed to show or point out any error appeared in the order under challenge therefore question does not arise to review the order and further the law also does not permit this District Commission to set aside its own order and/or correct the order as prayed for.
The only question is to be determined whether the District Commission, established under the Consumer Protection Act, 2019, can set aside its own order by exercising the powers vested under review? The simple answer is ‘No’.
It is relevant to mention here that the Constitution Bench of the Hon’ble Supreme Court in New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage (P) Ltd, reported in ( 2020) 5 SCC-757, clearly provides that no written statement is to be allowed to be filed beyond the period of 45 days as per section 38 of the C.P.Act,2019.
Further, it is relevant to mention here that on 11.02.2021, Hon’ble Supreme Court in M/S Daddys Builders Pvt Ltd & Anr Vs Manisha Bhargava & Anr reiterated the New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage (P) Ltd case and held that “the Consumer Fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days”.
Further, coming back to the context, we would like to discuss a case decision titled as Ruby (Chandra) Dutta Vs United India Insurance Co. Ltd, reported in (2011) 11 SCC-269 wherein Hon’ble Supreme Court was pleased to hold the view that “the scope of review is limited to cases where some prima facie error appears in the impugned order”.
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Further, in a case titled as Rajeev Hitendra Pathak Vs Achyut Kashinath Karekar, reported in (2011) 9 SCC-541, Hon’ble Supreme Court was pleased to observe as under :-
“ On a 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 the power of review and the powers which have not been expressly given by the statute cannot be exercised”.
Earlier to the above decision, the Hon’ble Supreme Court held similar view in Jyostna Arvind Kumar Vs Bombay Hospital Trust case reported in (1999) 4 SCC-325 wherein Hon’ble Supreme Court held that “there is no provision in the Act enabling the State Commission to set aside an ex-parte order”
Further, Hon’ble State Commission, W.B in Indrajit Sarkar Vs Bireswar Bandopadhyay while passing an order in Revision Petition, being R.P No: 162 of 2014, dated 15.07.2015 was pleased to hold the view that the District Forum does not have any power to set aside its own order and could review its order and further was pleased to observe that “ Inasmuch as the Consumer Fora derive their powers from the express provisions of the Act, it has to be held that the District Forums do not have the power and liberty to correct any mistakes in the orders passed by them. In fact, the modification of its order No:2 dated 11.08.2014 that was brought about by the Ld. District Forum vide order No: 6 dated 09.10.2014 can also not, in our considered view, be called correction of a mere clerical or typographical mistake superseding an earlier order certainly does not fall within the realm of this category. Let us not forget that whether a party to litigation was indeed present or absent on a given day can only be determined through elaborate hearing and placement of documentary proof in that regard by the party concerned and any decision arrived at in this regard would be akin to review of the impugned order. Under any circumstances, this cannot be
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treated as simple typing error as the Ld. District Forum sought to paint it. Clearly, the Ld. Forum overstepped its limitations and thereby, made gross legal faux pas for which the impugned order cannot sustain in the eye of law”.
In the earlier C.P. Act, 1986 there was no power of review vested upon the District Forum. U/S 22A of the said Act (now repealed) power was given to the National Commission only to set aside its ex-parte order in the interest of justice.
In the new C.P. Act, 2019 too no power is given to the District Commission to set aside its own ex-parte order.
In view of the above discussions and particularly in the light of the above case decisions of the Apex Court and Upper Forums, we are of the considered opinion that the District Commission cannot set aside its own order and it is the settled principle of law. Further, though the power of review has been vested upon the District Commission under the new Act but its scope and extent is very limited and it can be exercised only when there is an error apparent on the face of the record. The powers conferred upon the District Commission under Sec-40 of the Act should be used sparingly in consonance with the letters and spirit of the section and as per the mandate given there under. We cannot go deep into the case with the tool of review and cannot shake the fabric of the statute in any way. Therefore, the petition of the O.P No:2/ Petitioner deserves to be rejected
Hence
it is ordered that the R.A-01/2022 is rejected.
To 18.10.2022 for Evidence by the Complainant in C.C No: 32 of 2022.
The R.A-01 /2022 is rejected and disposed of.
