Per Hon’ble Mr.P.N.Kashalkar, Presiding Judicial Member
Heard Mr.U.B.Wavikar-Advocate for the revision petitioner.
This revision petition filed by the original complainant whose complaint was pending in the South Mumbai District Consumer Disputes Redressal Forum being no.CC/252/2010 in whose complaint order to proceed ex-parte was passed by the District Consumer Disputes Redressal Forum on 18/10/2010. This matter was heard ex-parte. Complainant filed affidavit of evidence and written arguments. Matter was listed for hearing on 07/02/2011. After hearing advocate for the complainant, matter was closed for orders on 10/02/2011.
On 10/02/2011 counsel for the complainant was present. Matter was already adjourned for judgement but since steno was on leave, judgement was not ready. At this juncture, Advocate Ashok Wasvani and Advocate Arvind Tivari appeared and filed memo and applied to set aside the ex-parte order. That application was ultimately allowed and that application which is impugned by filing this revision petition.
We had sent notices to the respondent–Aviva Life Insurance. Notice before admission was issued and since it was served, we admitted revision petition and, thereafter, directed revision petitioner to again send notice after admission to the respondent by RPAD. Accordingly, on 12/04/2012 notice was sent to the respondent and notice appears to have been served on the respondent and still respondent is absent. Hence we heard Advocate Wavikar for the petitioner.
We are finding that the impugned order passed by the District Consumer Disputes Redressal Forum was without jurisdiction and cannot be allowed to sustain in law in as much as once the matter is proceeded ex-parte, District Consumer Disputes Redressal Forum has got to decide the complaint ex-party. District Consumer Disputes Redressal Forum has no jurisdiction or power to set aside ex-parte order because that will amount to review of its own order which is not permissible in law. Power of review is only vested with the National Commission under section 22-A of Consumer Protection Act, 1986. Neither the District Consumer Disputes Redressal Forum nor the State Commission has any power of review and, as such, the District Consumer Disputes Redressal Forum had no jurisdiction or power to set aside ex-parte order that too at the time when the matter was already heard and fixed for judgement. In fact, complainant was heard and matter was fixed for judgement on 10/02/2011. Then on 10/02/2011 when matter was posted for judgement, simply since steno was absent, judgement could not be pronounced and respondent through their advocate appeared and applied for setting aside ex-parte order. After hearing counsel for the complainant, said order came to be set aside by impugned order passed on 22/02/2011 against which present revision has been filed by the original complainant.
We are finding that the said order is passed beyond jurisdiction. Forum has no jurisdiction to set aside ex-parte order because it amounts to reviewing its own order, which is not permissible in law.
Advocate Wavikar for the revision petitioner in the course of argument told us that in District Consumer Disputes Redressal Forum while filing reply he had filed two judgements one of Kerala High Court in the case of Mr.Reju Thomas V/s. National Insurance Co.Ltd. & Others reported in 2009(2) ALL MR (Journal) 55, in which it has been held that District Consumer Disputes Redressal Forum or State Commission has no power to restore the complaint, which is dismissed for default and only National Commission has power to set aside ex-parte order in view of section 22-A of the Consumer Protection Act, 1986 and another of Hon’ble Supreme Court in the case of Jyotsana Arvind Kumar Shah & ors. V/s. Bombay Hospital Trust reported in III (1999) CPJ 1 (SC), in which Hon’ble Supreme Court clearly held that the State Commission has no power to set aside ex-parte order since there is no provision in the Act enabling the State Commission to set aside the ex-parte order. Same ratio applies to the District Consumer Disputes Redressal Forum because powers of District Consumer Disputes Redressal Forum and State Commission are similar and, therefore, District Consumer Disputes Redressal Forum erred in law in allowing the application presented and permitting them to file written version. Said order is per se bad in law and, therefore, by allowing this revision petition, we quash and set aside the said order. Hence the following order:-
ORDER
Revision petition is allowed.
Impugned order passed by the District Consumer Disputes Redressal Forum, South Mumbai dated 22/02/2011 in consumer complaint no.252/2010 is quashed and set aside.
District Consumer Disputes Redressal Forum is directed to decide the complaint ex-parte only by delivering the judgement.
Inform the parties accordingly.
Pronounced on 2nd May, 2012.
