SAMIKSHA BHATTACHARYA,  MEMBER 

Today is fixed for order in respect of the admissibility of the  instant   Revision Petition. 

The  instant Revision  Petition has  been filed by the  Revisionist/OP No. 1 questioning the propriety of the Order No. 13  dated 31.03.2023 in CC case being No.CC/536/2021 passed by the Ld. District Commission, Kolkata Unit-III (South).

The Ld.  Advocate for the Revisionist/OP No. 1 has submitted  before this Commission  that the Respondent  No. 1  of the Revision Petition, who is the complainant of the complaint case being No. CC/536/2021 filed affidavit of service on 20.05.2022 stating that summons has properly been served upon the OPs i.e., present Revisionist and other OP and accordingly the Ld. District Commission was pleased to fix  the  date on 24.06.2022 for appearance and  filing written version by OPs. The OP No. 1 did not appear in the case nor filed the written version, hence, the case was proceeded ex parte against the Revisionist/OP No. 1 and the Ld. District Commission  was pleased to fix the date  for  ex parte hearing  against   the OP No. 1/Revisionist  on 07.09.2022.

Ld. Advocate  has further submitted that while  checking the regular cause list he has   got the information that the case has been fixed for ex parte hearing and upon such information  the OP No. 1 entered their appearances  into the said complaint case  on 08.02.2023 and also filed an application for vacating ex parte order. The Ld. District Commission was  pleased to reject the said application on 08.02.2023 and fixed the date on   02.06.2023 for ex parte hearing of  the complaint case.

Ld. Advocate for the Revisionist/OP No. 1 has submitted that though the complainant has claimed that the summons of the case has been properly served but the actual fact is something  different.   The complainant has  played a cunning game upon the Ld. District Commission with an intention to get an order from the  Ld. District Commission by misleading the Court.

The complainant has filed an application with the  affidavit of service on 23.03.2022 claiming that summons has properly been served  upon the Revisionist/OP No. 1. But the actual fact is that the OP No. 1 has not been served which is clearly  evident  from  the tract report filed by the complainant. It is evident from the postal track report receipt  filed by the complainant  that the charges of the envelope containing  summons along with  plaint and annexure   is Rs.29.50/- only. Therefore, the  Ld.  Advocate  for the Revisionist/OP No.1 has stated that summons has not been properly served upon the OP No. 1 and due to this reason they could be present  before the Ld. District Commission concerned. OP No. 1 intends to contest the case and  the Ld.  Advocate has further submitted that if there is delay of filing written  statement the same is not an intentional one. Therefore, OP No.  1 filed a petition for vacating the ex parte order but the same  got rejected vide order dated 31.03.2023.

Being aggrieved by  and dissatisfied with the said order dated 31.03.2023 passed by the Ld. District Commission concerned, the Revisionist/ OP No. 1  filed the  instant Revision Petition. OP No. 1/Revisionist has stated  in the petition that the Ld. District Commission has failed to  go through the affidavit of service along with postal track report  properly and the Ld.  District Commission was in a hurry while passing the order dated 31.03.2023 in CC/536/2021. The Ld. District Commission  should have allowed the OP No. 1  to contest the complaint case since the summons has not properly been served upon the OP No. 1.  Hence, he has prayed for setting aside  the order dated 31.03.2023 passed by the Ld.  District Commission, Unit-III (South) and  to allow the OP No. 1  to file written version in the complaint case being No. CC/536/2021.

Ld. Advocate for the OP No. 1 has filed the  certified copy of the order-sheets passed by the Ld. District Commission.

Upon perusal of the  daily order-sheets passed by the Ld. District Commission in Cc/536/2021 and the order dated 31.03.2023 in particular, it appears that after the case was admitted  on 04.01.2022 and thereafter, the Ld. District Commission has  fixed the date on 10.02.2022 for  S/R and  appearance and  for filing written version. Since no S/R has been received on 10.02.2022, the Ld. District Commission has passed  order  with direction upon the complainant to take steps  for serving of notice upon the OPs on 23.03.2022. On 23.03.2022,  the complainant filed the   postal track report but without  swearing  any affidavit.  As per direction of the Ld.   District Commission, the complainant filed the affidavit of service on 20.05.2022 wherefrom it appears that the summons  have  been served  upon the OPs and the Ld. District Commission was pleased to fix the date on 24.06.2022 for appearance and filing written version by the OPs. On 24.06.2022, none appeared on behalf of the OPs,  however,  for the ends of justice, the Ld. District Commission  was pleased to fix the date on 13.07.2022 for filing written version by the OPs, in default,  ex parte  hearing on 13.07.2022.

Since  none appeared on  behalf of the OPs to file the written version, the Ld. District Commission has passed the order to proceed the case ex parte  and the date of ex parte hearing was fixed on 07.09.2022. On 07.09.2022,  OPs No. 1 & 2  filed Vokalatnama and a  petition   praying for vacating the ex parte order against them and the date ws fixed by Ld. DCDRC on 24.11.2022 for hearing of the petition filed by OPs No. 1 & 2.  On the prayer  of the OPs the case was adjourned on 24.11.2022 and the petition was heard on 08.02.2023.  The order    was passed on 31.03.2023. In the  order dated 31.03.2023 it has been categorically mentioned that  the summons were received by the OPs on 24.02.2022. The  weight of the envelope addressed to OP No. 1  was 195 grams, and the envelope containing the summons sent to OP No.  2   was of 200  grams. Therefore, the Ld. District Commission has  observed that the summons  were sent with the  complaint petition. Hence, the petition filed by OP No. 1  was rejected.

Upon careful perusal of the  postal track report, it appears that, summons upon OP No. 2 has been  received with the postal  remark  “[item delivered to A.S. (addressee)].  The summon  upon OP No. 1 has been delivered to  Madurdaha S.O and the status has been marked as “item delivery confirmed”. The item was  booked on 22.02.2022, the item  weighing  195 grams was booked on 22.02.202, distance   Pin Code was 700107 and the delivery location was mentioned as Madurdaha S.O.  and accordingly, the  item was delivered to Madurdaha S.O. with the  remarks “to O.O. (Article Receipt  Room). The argument on behalf of the OP No. 1 is that the item was not delivered  upon proper address. On the other hand, the Revisionist/OP No. 1  has stated  in the Revision Petition, that  the charges of the envelope containing the summons along with  plaint and annexure was Rs.29.50/- only  and  therefore, the summons was not properly served. Therefore, on the one hand, the Ld. Advocate for the Revisionist has submitted that the summons was not   served  to the Revisionist and on the  other hand,  Ld. Advocate  has submitted that since the postal charge  was only Rs.29.50/-,  therefore, the summons has not been properly served i.e.,  the summons along with  the petition of complaint. It is  pertinent to mention that the OP No. 2  is the Director of  OP No. 1. The Ld. Advocate for the Revisionist has not denied that the OP No. 2 has not received the notice. The  Revision  Petition   has been filed  by OP No. 1 only.  If the  Director of OP No. 1 has received the notice  then it can be presumed that the instant Complaint  Case was within the knowledge of the OP No. 1/Company. So the Ld. District Commission has rightly observed  if the  summon was served to OP No. 2 and  for the sake of  argument, if we consider the summons was not served to OP No. 1 then it is obviously  within the knowledge  of the OP No. 1  since the OP No. 2 is the director of OP No. 1.   Moreover, from  the  postal track report it appears that the summon  upon OP No. 2   was served  on 24.02.2022 and the  summon upon OP No. 1 was served on the same date i.e., 24.02.2022. Thereafter, several opportunities were given to both the  OPs  to file  written version, but the OPs did not avail the said opportunity.  After a long period, when the case was fixed for ex parte  hearing, the OPs No. 1 & 2 filed  a petition for vacated  ex parte order. It is not  clear that  if the summons were  not served upon them  how they appeared before the Ld. District Commission on 07.09.2022. Considering these facts and circumstances of the case  we are of the opinion that the Ld. District Commission has rightly rejected the petition for vacating the ex parte order.  As such  there is no impropriety or irregularity or illegality in  the impugned order  passed by the Ld. District Commission.

Moreover,  the Ld.  District Commission  has no power to recall, modify or set aside  its own order except there is an apparent error in the face of the record.

In view of above discussion, the instant Revision Petition  is rejected being not admitted.