Per Justice Sham Sunder , President
This application for restoration of the application for condonation of delay and the appeal, which were dismissed for want of prosecution on 24.5.2011, has been filed by the applicant / appellant.
2. The grounds, set up, in the application, under disposal, are that the application for condonation of delay alongwith appeal No.104 of 2011 came up for hearing before the Commission on 24.5.2011, and the Counsel for the applicant/appellant, being engaged, in the renovation work of his house, could not appear and asked one of his colleagues to seek adjournment, but nobody appeared, on his behalf, on that date. Thereafter, due to rush of work, because of summer vacations, he could not apply for copy of the order, vide which appeal was dismissed, for want of prosecution. The same was applied for on 15.6.2011, which was received on 17.6.201. It was stated that the absence of the Counsel for the applicant/appellant , on 24.5.2011, was neither willful nor intentional, but due to the reasons, referred to above. Accordingly, the prayer, referred to, in the opening para of the instant order, was made.
3. We have heard the Counsel for the applicant/appellant, Counsel for the respondent/OP, and have gone through the record, carefully.
4. The Counsel applicant/appellant, submitted that the absence of the applicant/appellant as well as her Counsel on 24.5.2011, when the appeal was dismissed for want of prosecution, was neither intentional, nor deliberate, but on account of the reasons, mentioned in the application, under disposal. He further submitted that it is well settled principle of law, that every lis, should be decided, on merits, than by default. He further submitted that substantial questions of law, and fact, are involved, in the appeal, and if the same is not restored, an irreparable loss shall be caused to the applicant/appellant. He further submitted that the appeal be restored to its original number, and the applicant/appellant be afforded an opportunity of being heard, and thereafter, it be decided on merits.
5. On the other hand, the Counsel for the respondent, submitted that, as none appeared, on behalf of the applicant/appellant, to pursue the application for condonation of delay and the main appeal, and, as such the order dated 24.5.2011 dismissing the application for condonation delay was legal and valid. He further submitted that since the Commission is not empowered to review/recall its own order, so the application deserves to be dismissed.
6. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the application is liable to be dismissed, for the reasons, to be recorded hereinafter. First Appeal No.104 of 2011 was filed on 6.5.2011 against the order dated 13.10.2010, rendered by the District Consumer Disputes Redressal Forum(II), U.T, Chandigarh, vide which the complaint of the Smt.Rajbir Kaur, complainant/appellant filed U/s 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), was dismissed. Alongwith the appeal, an application for condonation of delay of 60 days (56 days as per the office report) in filing the same (appeal) was also filed. On 16.5.2011, when the appeal alongwith the application for condonation of delay was fixed for preliminary hearing, neither the applicant/appellant, nor her Counsel appeared. The appeal was then fixed for 24.5.2011, for hearing. On that date also, neither the applicant/appellant nor any legally authorized representative, on her behalf appeared. On that date, the following order was passed ;
“None has put in appearance, on behalf of the applicant/appellant, despite the call having been given twice. It appears that applicant/appellant is not interested in prosecuting the application, for condonation of delay and the main appeal.
Accordingly, the application under Section 5 of the Limitation Act for condonation of delay of 60 days(as per office report 56 days) in filing the appeal, and the appeal are dismissed, for want of prosecution.”
7. The order extracted above , clearly goes to show that on 24.5.2011 and even on the previous date of hearing i.e. 16.5.2011, neither the applicant/appellant, nor any legally authorized representative, on her behalf, put in appearance. It was, under these circumstances, that it was found that the applicant/appellant was not at all interested in prosecuting the application for condonation of delay and the appeal and, as such, the same were dismissed for want of prosecution, as envisaged by Section 13(2)(c) read with Section 18 of the Act and Rule 8(6) of the Chandigarh Consumer Protection Rules, 1987. The grounds set up, in the application under disposal, for the restoration of appeal are not supported by any material. Even such grounds do not constitute sufficient cause. The absence of the applicant/appellant on 24.5.2011, was, thus, intentional and deliberate.
8. The principal question, that arises for consideration, is, as to whether, the State Commission is empowered to restore the application for condonation of delay and appeal dismissed by it, for want of prosecution. There is no provision, in the Act, empowering the State Commission, to review/recall its own order, like the one, passed in this case. In Rajeev Hitendra Pathak and others vs Achyut Kashinath Karekar and another IV(2011)CPJ 35(SC), a case decided by a three judge bench of the Apex Court, the facts were that the State Consumer Disputes Redressal Commission, Maharashtra, issued notice of the complaint filed before it, to the Opposite Parties. On 9.9.2004, the State Commission dismissed the complaint, for want of prosecution. On 4.11.2004, the complainants, filed an application, for recalling the order dated 9.9.2004. The State Commission recalled the order dated 9.9.2004, and restored the complaint. Feeling aggrieved, the appellants/OPs filed a revision-petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it. Still feeling aggrieved, the appellants/OPs filed Civil Appeal No.4307 of 2007 in the Apex Court. The Apex Court in Rajeev Hitendra Pathak and others’s case (supra), held that, on careful analysis of the provisions of the Act, it is abundantly clear, that the Tribunals are creatures of Statute and derive their power from the express provisions of the same (Statute). The District Forums and the State Commissions, have not been empowered, to set aside the ex parte orders and review/recall the same. The powers, which have not been expressly given, by the Statute, cannot be exercised by them. Ultimately, Appeal No.4307 of 2007 was accepted by the Apex Court, and the findings of the National Commission, holding that the State Commission, was empowered to review/recall its own order, were set aside. The principle of law, laid down in Rajeev Hitendra Pathak and others’s case (supra), is fully applicable, to the facts of the instant case. This Commission is bound by the principle of law, laid down, in the aforesaid case, by the Apex Court. Since, this Commission, has no power to review/recall or set aside its order, dismissing the application and appeal, for want of prosecution, on 24.5.2011, the application is not maintainable, before it. The application is,thus, liable to be dismissed, on this ground alone.
9. For the reasons recorded above, the application, seeking restoration of the application for condonation of delay, as well as the main appeal, is dismissed, being not maintainable, with no order as to costs.
10. Certified Copies of this order be sent to the parties, free of charge. 11. The file be consigned to Record Room.
