KUNDAN KUMAR KUMAI
This is an application under Section 17(b) of the Consumer Protection Act, 1986 preferred against the order dated 08/02/2023 passed by the Ld. DCDRF, Cooch Behar in CC/103/2019.
The applicant’s case in brief is that, the respondent had lodged the complaint before the Ld. DCDRF, Cooch Behar on 30/08/2019, for redressal of grievances of not receiving the no objection certificate and the statement of the installment with other consequential reliefs. After admission, the case was fixed for S/R of notice on 18/10/2019. On that date, the applicants appeared through their Ld. Agent and filed their written version on 15/11/2019. On 17/12/2019, evidence was adduced on behalf of the applicants, but as the respondent prayed for time, the next date was fixed on 28/01/2020, for filing evidence on behalf of the respondent. On that date, the respondent filed evidence and the applicants also filed the WNA. Both the sides had submitted, that there would be no cross examination and the date was fixed on 07/04/2020 for filing WNA and arguments. But due to the Pandemic the record was put up only on 26/06/2020, on which date, the case was adjourned, due to resolution passed by the local Cooch Behar Bar Association and the next date had been fixed on 30/07/2020. But the record could be put up only on 09/09/2020, due to lock down. Thereafter, the date had been fixed on 24/11/2020, for argument. On 24/11/2020, the respondent remained absent without steps and next date had been fixed on 04/01/2021. On that date also the respondent remained absent and the next date was fixed on 23/02/202. On that date also, the respondent remained absent without any steps and the next date had been fixed on 05/03/2021. On that date also, the respondent remained absent without any steps and the respondent was directed to show cause as to why the case shall not be dismissed for none appearance and the next date had been fixed on 17/03/2021. On that date also, the respondent remained absent without any steps, nor filed any show cause and the date was fixed on 30/04/2021. But later in the day, the respondent had appeared by filing a show cause petition along with an adjournment petition and the said petition had been fixed for hearing. Again, on that date, the respondent had remained absent without any steps and the next date had been fixed on 11/06/2021, but the record was put up on 17/08/2021, due to lock down and next date had been fixed on 28/10/2021, for hearing the petition filed by the respondent. But on that date as none of the parties appeared, the date was fixed on 20/12/2021. On 20/12/2021 also, none of the parties appeared and the respondent was directed to by show cause as to why the case should not be dismissed and the date had been fixed on 31/01/2022. On that date the case could not proceed due to the resolution, passed by the Cooch Behar Bar Association and the date had been fixed on 02/03/2022 and on 02/03/2022 the case was dismissed with the observation, that the respondent was unwilling to proceed with the case. On 18/05/ 2022, the case record was put up on the basis of put-up petition and 16/06/2022, had been fixed for hearing the petition. On that date also, the respondent prayed for time and a case was adjourned to 26/07/2022. On 26/07/2022, the case was fixed for service of notice upon the applicant on 27/07/2022. On that date, a petition under Section 40 of the Consumer Protection Act 2019, dated 18/05/2022, was taken up for hearing, but a date had been fixed on 17/08/2022 for service of the petition upon the applicants. On that date the applicants appeared through their agent and filed the written objection, against the petition and the date was fixed on 16/09/2022 for hearing. On 16/09/2022 hearing could not take place and the date had been fixed on 02/11/2022. On that date, hearing was done and the date had been fixed on 06/12/2022 for further hearing. On that date respondent, had filed certain documents and the case had been fixed on 13/12/2022 for order. On 13/12/2022 as the respondent under took to file certain documents, the date had been fixed on 08/02/2023 for passing order. By the impugned order, the petition of the respondent dated 18/05/2022 had been allowed with cost of Rs. 2,000/- (two thousand) only payable by the respondent to the applicant and the next date had been fixed on 21/02/2023 for hearing of the argument and payment of cost.
Being aggrieved by the impugned order, the applicant preferred the instant revision on the ground, that the Ld. DCDRF, Cooch Behar, while passing the impugned order had erred in law and facts.
Decision with Reason
Ld. Advocate for the applicant at the time of final hearing, had submitted that the Ld. Forum below had no power to review its own order passed on 02/03/2022, as the statute did not empower, the review of its own order and by allowing the petition dated 18/05/2022, it tantamount to reviewing and recalling its own order, which is impermissible under the provisions of the Consumer Protection Act 1986. He had relied in the judgment passed in Prachi Mathur Vs. M/S TDI Infrastructure Ltd. and General Security and Information Services Pvt. Ltd. Vs. Punjab National Bank and Anr. By the Hon’ble SCDRC, Delhi, Neena Aneja and Anr. Vs. Jai Prakash Associates Ltd. reported in 2021 SCC online SC225, Rajeev Hitendra Pathak and Others Vs. Achyut Kashinath Karekar and Anr. Reported in (2011) 9SCC541 and Paritosh Jain and Anr. Vs. Jai Prakash Associates Ltd. on 27/09/2021 by the Hon’ble NCDRC.
Ld. Advocate for the respondent, on the other hand, had countered, that the Ld. DCDRF, Cooch Behar had passed the impugned order, considering the failure of the Ld. Advocate for the respondent for which reason, the respondent ought not to be penalized. He therefore, prayed for upholding the impugned order.
At the very outset, its needs to be mentioned, that the disputed matter is a proceeding under the provisions of the Consumer Protection Act 1986, and it is not in dispute, that the case had been dismissed for default, vide order dated 02/03/2022 and the case had been restored vide the impugned order. Since, the power of review or recalling its own order was not available to the Ld. DCDRF under the provision of the Consumer Protection Act 1986, the Ld. DCDRF, Coch Behar had erroneously passed the impugned order. This view also stands supported by the principles percolating from the judgments cited above, on behalf of the applicants. Under the circumstance, without entering in to the justifications of the impugned order, the same cannot be sustained simply because the law prescribed under the provision of the Consumer Protection Act 1986, do not provide for passing of the impugned order, in the manner it has been done. As the result the instant application succeeds.
It is therefore,
Ordered
That the instant revision be and the same is allowed on contest but without costs.
The impugned order be set aside.
Stay granted earlier is made absolute.
Copy of the order be sent to the parties, of free costs.
Copy of the order be sent to the Ld. DCDRF, Cooch Behar, for necessary information.