ORDER

 13.11.2024

1. By way of this order we are disposing of an application filed on behalf of complainant without mentioning as to under which section of the CP Act, 2019 the complainant has prayed for restoration of the complaint, however, we consider the present application under section 40 of the Consumer Protection Act,2019. By way of the present application the applicant had prayed for restoration of the complaint which was dismissed in default vide order dated 09.07.2024 of this Commission.  
2. It is stated in the application that complaint case bearing no. 149/2022 was pending before this Commission and was listed on 09.07.2024. On 09.07.2024 the case stands dismissed in default due to non appearance of complainant. It is further stated in the application that on the last date of hearing inadvertently the counsel noted the next date of hearing as 07.09.2024 instead of 09.07.2024 and as such failed to appear on 09.07.2024 resulting in the dismissal of the complaint due to non appearance. It is further stated that non appearance is neither intentional nor deliberately, hence, the application be considered and CC No. 149/2022 be restored to its original position.
3.  We have heard Sh. Jatin Gupta counsel for applicant and  perused the record.
4. Let us peruse the relevant provisions of the Consumer Protection Act, 2019. The powers vested with the District Consumer Commission as per Act are as under:

 The Consumer Protection Act, 2019 laid down the procedure before the District Commission from section 34 to 39. As per section 38 (9) (a to f) provides powers same as vested in a Civil Court under the code of civil procedure, 1908 while trying a suit in respect of the falling matters namely :-

Section 38

1. The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
2. Requiring the discovery and production of any document or other material object as evidence;
3. Receiving of evidence on affidavits;
4. The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
5. Issuing of commissions for the examination of any witness, or document; and
6. Any other matter which may be prescribed by the Central Government.

Section 38 (11)

Where the complainant is a consumer referred to in sub-clause (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Commission thereon.

Section 38 (12)

In the event of death of a complainant who is a consumer or of the opposite party against whom the complaint has been filed, the provisions of Order XXII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be.

5. The above mentioned provisions clearly established that the Commission has no vested powers to restore the complaint dismissed for non appearance and non-prosecution, as this Commission is not vested with the power to be exercise under order 9 rule 9 as per Consumer Protection  Act, 2019. The powers are not included in section 38 (9) (a to f), 11 and 12 of CP Act, 2019. The powers which are excluded by legislature cannot be assumed by the Commission. Therefore, we are of considered opinion that this Commission has no powers to restore the complaint dismissed for non appearance and non-prosecution therefore, application is not maintainable, hence, dismissed.

File be consigned to record room.

6. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   13.11.2024.

(SANJAY KUMAR)                                 (NIPUR CHANDNA)            

           PRESIDENT                                                      MEMBER