ORDER
06.12.2024
MS. NIPUR CHANDNA, MEMBER
- A hand written application filed on behalf of OP1 in Hindi thereby requesting this Commission not to proceed ex-parte. We have gone through the application although OP had not mentioned any specific date as to when the OP1 was proceeded ex-parte, we have perused the record and found that vide order dated 24.09.2019 the Ld. Predecessor Bench had proceeded OP1 ex-parte due to non appearance as well as for non filing of the written statement. In a nutshell by way of the present application OP1 prayed before this Commission for review/recall the order dated 24.09.2019 with a request to set aside ex parte order.
- In brief the facts are that the complainant filed present complaint against OP alleging deficiency of service and unfair trade practice. Perusal of the record shows that vide order dated 29.04.2019 complaint was admitted and notice was issued to OP1 & 2 for appearance on 02.07.2019. On 02.07.2019 Ms. Dharini counsel for OP1 appeared and sought adjournment for filing written statement. Opportunity granted to OP1 for filing the WS and matter stands adjourned to 24.09.2019. On 24.09.2019 none appeared on behalf of OP1 as such OP1 was proceeded ex-parte. At 01:30 PM, on 24.09.2019 one Sh. Aditya Singh counsel for OP1 appeared and further sought adjournment for filing written statement. Request of OP1 counsel was turned down by Ld. Predecessor Bench and again at 01:30 PM the order of ex-parte is reiterated against OP1.
- It is stated in the application that OP1 counsel Adv. Aditya Singh present at 10:30 AM in the Commission on 24.09.2019 however, inadvertently he could not hear the calling and matter was proceeded ex-parte and thereafter when he enquired about the status of the present complaint case, he came to know that OP1 was proceeded ex-parte and thereafter immediately the counsel drafted the aforesaid hand written application with the prayer not to proceed OP1 ex-parte.
- It is further stated that non appearance of the OP and its counsel was neither deliberate not intentional as OP was under impression that he has to appear on 13.08.2024 before this commission as per order dated 08.04.2024, therefore, OP was not at all any fault therefore, the ex parte order may be set aside and rights of OP be restored.
- We have heard Ms. Asha Sharma counsel for complainant and Ms. Mahima proxy counsel for Sh. Alok Aggarwal counsel for OP and perused the record.
- In order to appreciate respective contentions of the parties let us peruse the section 38 (3)
13.. Procedure on admission of complaint.
(1) The District Commission shall, if the complaint admitted by it under sub section (2) of section 36 relate to goods in respect of which the procedure specified in sub section (2) cannot be followed, or if the complaint relates to any services,-
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Commission.
(b) if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Commission, it shall proceed to settle the consumer dispute-
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denied or disputes the allegations contained in the complaint, or
(ii) ex parte on the basis of evidence brought to its notice by the complainant, where the OP omits or fails to take any action to represent his case within the time given by the Commission;
(c) decide the complaint on merits if the complainant fails to appear on the date of hearing.
The CP Act, 1986 as per section 22 A provides the power only to National Commission to set aside the ex parte order. As per act no powers vested in this commission to set aside ex parte order.
- The CP Act 1986 is a Code in itself and provides complete procedure for District Commission, State Commission and National Commission. As discussed hereinabove Section 13 empowers the District Commission to conduct the proceedings in a manner as mentioned therein. The powers to proceed ex parte has been vested in section 13(2)(b)(ii). The CP Act, 1986 does not vests the powers such as restoration of complaint or setting aside ex parte order by adopting or invoking any other provision of CPC. The section 22 (a) of CP Act empowers National Commission to set aside ex parte orders. The legislature in its wisdom did not vest this power to State Commission as well. The powers which are excluded by the legislature in its wisdom cannot be assumed by the District Commission CP Act, 1986.
- On the basis of above observation and discussion application on behalf of OP for setting aside ex-parte order is dismissed.
- The orders be uploaded on www.confonet.nic.in.
Now come up for OP2 evidence on 25.02.2025.
SANJAY KUMAR NIPUR CHANDNA RAJESH
PRESIDENT MEMBER MEMBER
