(Delivered on 29/03/2019)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. We have heard Advocate A.P. Mordia appearing for the petitioners and respondent in person today at length. We have also perused the record and proceedings of the present petition.
2. This Revision Petition is directed against the order dated 10/07/2018 passed by the learned District Consumer Forum, Nagpur by which consumer complaint No. 420/2017 has been proceeded exparte against the O.P.Nos. 1&2/ petitioners. The learned advocate of the petitioners submitted in brief that after receipt of notice of the complaint from the Forum below by the petitioners, the same were handed over by them to the panel advocate of the petitioners for putting appearance before the Forum and taking necessary steps. But the said panel counsel/advocate went to Jammu for pilgrimage of Vaishnodevi and thereafter he went to Sweden and hence he could not appear before the Forum on the given date. Thus, according to him, the complaint proceeded exparte vide order dated 10/07/2018. He argued that due to fault of advocate of the petitioners , they cannot be made to suffer. He further submitted that some time was also consumed as case papers were misplaced in the office of the panel advocate and they were traced out in the month of July-2018 and that ultimately when Advocate Mr. Gogia appeared before the Forum on 11/07/2018, he found that the complaint was already proceeded exparte. He also submitted that thereafter certified copy of the impugned order was obtained and then this revision petition came to be filed to set aside said order. Hence, he requested that the impugned order may be set aside and petitioners may be given one opportunity to appear before the Forum and to file reply to the complaint, to meet the ends of justice.
3. On the other hand, the respondent argued in person that there is no substance in almost all grounds raised by the petitioners in the revision petition. He also submitted in brief that the petitioners have not filed any material document or evidence affidavit of the concerned panel advocate to whom case papers were handed over, that the notices were delivered to the petitioners on 16/02/2018 and that though the period of more than six months was lapsed from service of notice, the petitioners’ advocate did not appear before the Forum and did not file any power. According to him Advocate Mr. Mordia and Advocate Mr. Gogia had appeared before the Forum on 11/06/2018 only and they orally sought time for filing reply and next date was given by the Forum in their presence as 10/07/2018. He also argued that on 10/07/2018 an application was made on behalf of the petitioners for grant of adjournment but as no power was filed by the advocate of the petitioners and no authority letter was also filed by the concerned advocate , the Forum below rejected that application and proceeded exparte against the petitioners. He also submitted that no details are given by the petitioners as to during which period the panel advocate had gone for pilgrimage and on which date he went to Sweden and on which date he returned from Sweden and no explanation is given as to why another advocate of the petitioners did not take steps for filing reply to the complaint for such long time. Hence, he supported the impugned order and requested that the revision petition may be dismissed.
4. We find that though notice of consumer complaint was duly served to both the petitioners and though they did not appear before the Forum for long time still the explanation given by them before this Commission for non appearance of their advocate before the Forum on the given dates appears to be satisfactorily and convincing. No malafides can be attributed to the petitioners in not filing reply to the complaint within the statutory period of 45 days. It is also not disputed that one of the advocate of petitioners had appeared before the Forum below on 10/07/2018 but he did not file power or authority letter and therefore, the application made through him by the petitioners for grant time to file reply came to be rejected and complaint came to be proceeded exparte against the petitioners.
5. We find that in the interest of justice one opportunity needs to be granted to the petitioners /original O.P.Nos. 1&2 for filing reply to the complaint, subject to payment of reasonable cost. Hence, the following order is passed.
ORDER
i. The revision petition is allowed as under.
ii. The impugned order dated 10/07/2018 passed by the District Consumer Forum, Nagpur in consumer complaint 420/2017 is hereby set aside and original O.P.Nos. 1&2/ petitioners herein are permitted to file reply to the consumer complaint No. 420/2017 subject to payment of cost of Rs. 10,000/- by them to the original complainant /respondent herein.
iii. The said cost of Rs. 10,000/- be paid by the petitioners to the respondent herein on or before 06/05/2019 either by handing over the demand draft of said amount directly to the said respondent taking his acknowledgement about the same or by depositing the said amount with the District Consumer Forum, Nagpur for payment to the respondent herein.
iv. If the said cost is paid or deposited as above on or before 06/05/2019, the District Consumer Forum below on verification on the same shall allow the original O.P.Nos. 1&2/revision petitioners to file reply to the said complaint on 06/05/2019 and if the petitioners have failed to pay or deposit the said amount as above on or before 06/05/2019 then the revision petition shall be treated as dismissed.
v. The District Consumer Forum, shall give opportunity to the petitioners herein for payment or deposit of the said cost as above till 06/05/2019 and on payment of the same as above it shall accept the reply of the petitioners on 06/05/2019 and then shall decide the complaint in accordance with law.
vi. Copy of this order be furnished to both parties, free of cost and its one copy be also forwarded to the District Consumer Forum, Nagpur for information.
