HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Challenge is to the order No. 3 dated 04/04/2023 passed by the Learned Addl. District Consumer Disputes Redressal Commission, Rajarhat (New Town) ( in short, ‘the Addl. District Commission’) in connection with consumer case No. CC/13/2023 thereby the case was fixed for ex parte hearing against the revisionists / opposite parties.

2. The respondent Nos. 1 & 2 being the complainants herein instituted a complaint case being No. CC/13/2023 against the revisionists / petitioners under section 35(1)(2) of the Consumer Protection Act, 2019 for deficiency in service and unfair trade practice for not giving possession and not registration of the flat by the opposite parties.

3. Notices were duly served upon the revisionists / petitioners. On 04/04/2023 was fixed for filing written version by the revisionists / petitioners as a last chance. On that date the revisionists / petitioners did not file any written version though the last chance was given to them. As such, the Learned Addl. District Commission was pleased to fix a date for ex parte hearing against the revisionists / petitioners by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the revisionists / petitioners preferred this revision petition.

5. Now, the question is whether the impugned order should be sustained.

6. Having heard the Learned Advocate appearing for the parties and on careful perusal of the record and the impugned order it appears to me that the statutory period for filing written version was over. As such, the Learned Addl. District Commission has been pleased to proceed the case ex parte against the revisionists / petitioners.

7. 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.”

8. 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.

9. 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.

10. 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.

11. Moreover, it appears to me that along with the revisional application, an application for condonation of delay has been filed. The office has submitted a report that this revision petition has been filed with a delay of 257 days.

12. The revisionists / petitioners have explained the cause of delay in filing the revision petition at paragraph No. 10 of the said application. In the application it has been stated that on receiving notice the revisionists / petitioners appointed a constituted Attorney to deal with the case, who fell ill and due to his ill health he could not collect the certified copy of the impugned order. Record goes to show that the revisionists / petitioners have not produced any medical paper to prove that the appointed constituted Attorney fell ill. This apart, the revisionists / petitioners have not filed any paper relating to the appointment of a constituted Attorney. As such, it may be concluded that the delay in filing the revision petition has not been explained properly. Therefore, the cause shown is not sufficient. So, the application for condonation of delay cannot be allowed.

13. In view of the above discussion, the impugned order passed by the Learned Addl. District Commission is within the jurisdiction which is not bad in law. There is no scope for interference with the impugned order. Accordingly, the revisional application is dismissed in limine.

14. Considering the facts and circumstances of the case there will be no order as to costs.

15. The Learned Addl. District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible without granting any unnecessary adjournments to either of the parties.

16. Let a copy of this order be sent down to the Learned Addl. District Commission at once.

17. Office to comply.