(Passed on 18.09.2013)

Per Mr B A Shaikh, Hon’ble Presiding Member

1.      These eight revisions petitions are directed against the orders dtd. 02.05.2013 and 11.02.2013 passed by the Additional District Consumer Forum, Forum below in eight complaints bearing Nos. CC/12/60 to CC/12/67, by which all the said eight complaints are proceeded exparte against the original opposite party (for short “O.P.”) No.4. Today Advocate Smt S K Paunikar appeared for respondent No.1 in all matters.  She filed her power in seven revision petition except in RP/13/33. She undertakes to file power in that petition within a week.  Advocate Smt K K Bhange appeared for respondent No.4 in all these eight petitions.  Respondent No.3 – Mr Subhash Jairam Mate appeared personally in all these eight petitions.  None appeared for respondent No.2 herein.  The Advocate of the petitioner produced eight envelopes containing copies of the notices and compilation of petitions sent to O.P.No.2 and submitted that the same are returned as O.P.No.2 has not claimed.  There is postal remark to that effect on the said envelopes. We proceed exparte against O.P.No.2 as it remained absent despite service of notice.

2.      We have heard Advocates of the petitioner, respondent No.1 and respondent No.4. We have also heard Mr Mate, the respondent No.3 in person. We have also perused the papers placed before us in all these revision petitions.

3.      The advocate of the Revision Petitioner submitted that notice was not served to the petitioner i.e. original O.P.No.4 namely P N Bhange, issued by the Forum below in all the original eight complaints and therefore, the order passed by the Forum below to proceed exparte against him is liable to be set aside.

4.      The learned advocate of the respondent No.1 herein submitted that only Hon’ble National Commission has power as per Sec. 22-A of Consumer Protection Act (for short “C.P.Act”) to set aside such exparte orders and therefore, all these revision petitions are not tenable and the same may be dismissed. She has relied upon the observations made by Hon’ble Supreme Court in the case of Rajeev  Hitendra Pathak & Ors. Vs. Achyut K Karekar and Anr., reported in (2011) IX - S.C. cases 541.  She also relied upon the observations made by Hon’ble Supreme Court in the case of Lucknow Dev. Authority Vs. Shyamkumar reported in (2013) II- SC Cases 754.  We have gone through the said decisions of the Hon’ble Supreme Court which will be discussed in the later course of this order.

5.      Advocate Smt K K Bhange also appeared for respondent No.4 submitted that she has nothing to say in all these revision petitions, as respondent No.4 is a formal party in these petitions.

6.      Respondent No.3 advanced no arguments.

7.      It is seen that as per provisions of Sec. 22-A of C.P. Act the Hon’ble National Commission has got power to set aside its own exparte orders.

8.      As per observations made by the Hon’ble Supreme Court in the above mentioned case of Rajeev H Pathak & Ors., the District Forum and State Commission have no power to set aside or recalled their own orders.  The Hon’ble Supreme Court in Para 35 of the said decision observed that the legislature chose to give National Commission power to review its exparte orders.  As per the said decision the power of review or recalled is vested with National Commission only.  The said decision is not applicable to the present cases since this Commission is not going to review or recall its own order.  The powers are given to this Commission u/s 17 of C.P. Act to pass necessary orders in any consumer dispute where the Forum below has exercised the jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

9.      Thus, the powers of review or recall, vested with the Hon’ble National Commission are totally different from the power of revision given to this Commission u/s 17 of C.P. Act. In our view provisions of Sec. 17 of CPA can be invoked to set aside the order passed by the Forum below, if any of the circumstance specified in the said section is satisfied.

10.    Similarly, the decision given by the Hon’ble Supreme Court in above referred subsequent case of Lucknow Development Authority, is not applicable to the present case.

          The said decision also relates to the power of Hon’ble National Commission to recall its own exparte order. It is held in that case that the power of review is not available to District Forum and State Commission. In the instant case, this Commission is not going to exercise any such power of review, which is vested with Hon’ble National Commission only.

11.    Thus, we do not agree with submission of learned Advocate of respondent No.1 on law point. Now we turn to the submission of the learned advocate of the petitioner as regard to the non-service of the notice of the complaint to the petitioner herein.  Admittedly, the notices issued to the petitioners herein by the Forum below were returned with postal endorsement as “Unclaimed”. The Forum below, relying on the said endorsement proceeded exparte against the petitioners in all eight complaints by passing order on 11.02.2013.  The said postal endorsement as “Unclaimed” is not a conclusive proof about the fact that the petitioner, inspite of due intimation given to him, declined to receive the notice.  Only presumption arises on the basis of said endorsement that petitioners did not claim it after intimation. But said presumption is rebuttable. The petitioner appeared before Forum below with a plea that he was not aware of that notice. In our view, the said plea of the petitioner deserves to be accepted since there is no affidavit of the postal authority or other person to the contrary showing that due to intimation of the envelope containing notice was given to the petitioner and despite of said intimation, notice was not taken by him.

12.    Apart from this we find that an opportunity should be given to the petitioner under the given circumstances to contest all these eight complaints by filing Written Version to meet the ends of justice. Therefore the impugned order dated 11.02.2013 deserves to be set aside by invoking power u/s 17 1(b) of C.P. Act.

ORDER

i.        All these Revision Petition Nos. RP/13/30 to RP/13/37 are allowed as under:-

ii.       The Impugned order dated 11.02.2013 passed in original complaint Nos. CC/12/60 to CC/12/67 by the Addl. District Forum Nagpur is hereby set aside.

iii.      No order as to cost.

iv.      Both the parties shall appear before the Additional Forum below

in all the said complaints on 27.09.2013. The petitioner herein is permitted to file Written Version in all these eight complaints on 27.09.2013. 

v.       All the said complaints be heard and decided expeditiously, within two months from today, in accordance with the law.

vi.      Copy of this order be supplied to the parties.