HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- Challenge is to the order No. 3 dated 16.09.2022 passed by the Learned Addl. District Consumer Disputes Redressal Commission at Rajarhat (New Town) ( in short, ‘the District Commission’) in connection with complaint case No. CC/334/2022 thereby the case was fixed for ex parte hearing against the Opposite Party.
- The respondent as a complainant instituted a complaint case being No. CC/334/2022 against the revisionist under section 34 & 35 read with section 38 of the Consumer Protection Act, 2019. The revisionist did not appear on 16.09.2022 and did not file written version within the statutory period. Since, the statutory period of limitation had already been expired the case was fixed for ex parte hearing against the revisionist by the order impugned.
- Being aggrieved by and dissatisfied with the said order, the revisionist had preferred this revision petition.
- Now, the question is whether the impugned order should be sustained. The Learned Advocate appearing for the revisionist has urged that the opposite party did not receive any notice and, as such, no notice was served upon him and the Opposite Party has failed to appear before the Commission and to file written version in proper time. Hence, there is irregularity in the proceeding. So, the revisional application should be allowed and the impugned order should be set aside.
- Having heard the Learned Advocate appearing for the revisionist and on perusal of the record it appears to us that after filing of the present complaint case notice was duly sent to the revisionist. As per the track report filed by the revisionist it appears to us that notice was duly sent to the revisionist and the revisionist received the notice on 16.08.2022 at 05.22 minutes 30 seconds. But the revisionist did not turn up before the District Commission and did not file written version within the statutory period. Since the statutory period of limitation has already been expired the case was proceeded ex parte against the revisionist.
- The controversy is squarely covered by the judgment of the Hon’ble Supreme Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another ) wherein it was held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35, 36,37,38 & 39 of the said judgment are relevant which are reproduced as under :-
“35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.”
- The same issue was also there before the Hon'ble Supreme Court in judgment of case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil Appeal No. 936 of 2013 decided on 05/02/2013 wherein earlier judgment of Supreme Court passed in connection with the case namely Rajeev Hitendra Pathak's case (Supra) was relied and it was held that "The District Forum and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
- The Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. , 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2) 3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.
- In view of our above discussion, the impugned order passed by the Learned District Commission is within the jurisdiction and which is not bad in law. There is no scope of interference with the impugned order.
- Accordingly, the revisional application is dismissed in limini. Considering the facts and circumstances, there will be no order as to costs.
- District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of the order passed by this Commission.
