05-11-2015 - This application has been filed under Order 9 Rule 9 read with section 151 C.P.C. along with a petition for condoning the delay of about 28 days in filing this application which has been filed for setting aside/ recalling of the order dated 31.07.2015 passed by this Commission in F.A. No. 13 of 2015.

2.  Learned counsel for the petitioner pressed the application and relied on (2000) 3 SCC 242 New India Assurance Co.Ltd. vs. R.Srinivasan.

 3.  It appears from the record of F.A. No. 13 of 2015 that on 18.3.2015, 17.4.2015, 7.5.2015, 16.6.2015 and 7.7.2015, nobody appeared on behalf of the appellant. Thus, inspite of sufficient opportunities, as nobody appeared on behalf of the appellant, the case was fixed for passing ex-parte order and then the said order was passed dismissing the appeal on merits.  

4.  In the judgements reported in (1999) 4 SCC 325 Jyotsana Arbind Kumar Shah; and IV ( 2011) CPJ 35 (SC) Rajeev Hitendra Pathak etc, it has been held by Hon’ble Supreme Court that State Commission has no power to review or recall the ex-parte order passed on merit.

5.   In New India Assurance Co. Ltd (Supra), the fact situation was different. After a complaint was dismissed for default and was not restored, a second complaint was filed. It was held that second complaint was maintainable on showing sufficient cause regarding dismissal of the earlier complaint for default. Further in the judgement of Rajiv Hitendra Pathak (supra), it was held that the decision in Jyotsana (supra) case laid down the correct law and the view taken in the later decision in the case of New India Assurance Company (supra) was untenable and could not be sustained.

6.  In the present case, the ex-parte order passed on merit, is sought to be set aside/ recalled.

                Thus, even if the delay of about 28 days in filing this Misc. Case is ignored, the order dated 31.7.2015 passed in F.A. No. 13 of 2015, can not be set aside/ recalled.

                Accordingly, this misc. case is dismissed.

    Issue free copy of this order to all concerned for information and needful.

           Ranchi,

 Dated:- 05-11-2015