SHYAMAL KUMAR GHOSH, MEMBER

The instant Revision Petition has been filed by the Revisionists challenging the order impugned being no – 5 dated 09/12/2022 read with order impugned being no – 7 dated 20/01/2022 passed by the ld Trial Commission, Kolkata Unit – IV, Sealdah in connection with Consumer Case being no–CC/35/2021 wherein the ld Trial Commission concerned has been pleased to fix 20/01/2022 for filing evidence of the complainant by affidavit and the instant case has been fixed for ex-parte against all opposite parties except opposite parties no – 1,10 and 11. The ld Trial Commission has also been pleased to recall the petitions filed by the opposite parties nos. 4,5,6 and 7 with cost of Rs.500/- each. Accordingly the order dated 09/12/2021 has been recalled and 08/03/2022 has been fixed for evidence by the complainant. Being aggrieved and dissatisfied with such orders, the revisionists have filed the instant Revision petition before this Commission for getting proper reliefs as prayed for.

We have heard the ld advocates appearing for the revisionists and respondent no 5 and also heard the respondent no 1 in person at length and in full.

Practically the ld advocate  and respondent no. 1 in person  have raised no stringent objection against the instant Revision Petition.

We have, therefore, considered the submissions of the ld advocate for respondent no – 5 and respondent no -1 in person.

We have meticulously perused the materials available on record.

Hearing has been concluded.

Whether the instant Revision Petition has any legal authenticity or not that should be decided by this Commission and as such the following orders passed by the ld Trial Commission should be clarified meticulously in order to reach  the final conclusion.

The order being no 3 dated 27/10/2021 passed by the concerned Trial Commission is reproduced as follows:-

“Ld counsel of complainant is present by filing Hazira. The S/R in respect of op no 1 returned on the ground of ‘left’ on 21/09/2021,for op 2 returned on the ground of ‘left’ on 21/09/2021, for op 3 returned on the ground of ‘left’ on 28/09/2021, for op 4 returned on the ground of ‘left’ on 20/09/2021, for op 5 returned on the ground of ‘left’ on 28/09/2021, for op 6 returned on the ground of ‘left’ on 28/09/2021, for op 7 returned on the ground of left on 28/09/2021 as per postal endorsement on the envelop....................................................complainant to take fresh steps with better particulars for the op nos. 2,3,4,5,6,7 & 9 in the mean time. Fix 17/11/2021 for S/R, appearance and filing W/V.”

The order being no 5 dated 09/12/2021 passed by the ld Trial Commission is reproduced as follows:-

“...................................the track report reveals notice was served on op no 2,3,4,5,6,7 on 30/09/2021 and on 8,9 on 28/09/2021. But they do not appear and filed W/V. Hence, the instant case against them be heard ex-parte. Fix 20/01/2022 for evidence of the complainant by affidavit.”

The order being no 7 dated 20/01/2022 passed by the concerned Trial Commission is reproduced as follows:-

“...............................on behalf of op no 4,5,6 and 7 power has been filed and petition for them separately filed praying for recalling the order of ex-parte hearing. They have also filed W/V separately, copies are served. Hd. Both sides on the petition praying for recall. Complainant will not file W/O against the said petition. So the petitions for recall filed by the op no 4,5,6 and 7 are allowed with cost of Rs.500/- each. The cost to be paid by the next date. The said order dated 09/12/2021 for hearing the case against 4,5,6 and 7 be recalled. W/V filed by them is accepted. 08/03/2022 is fixed for evidence by the complainant.”

Upon careful perusal of the order dated 27/10/2021 we find that the S/R in respect of opposite parties no. 1, 2, 3, 4, 5, 6 and 7 has been returned with an endorsement ‘LEFT’ on the various dates such as 20/09/2021, 21/09/2021 & 28/09/2021. Again we also find that as per track reports the notices have been served upon the ops no 2, 3, 4, 5, 6, 7 on 30/09/2021 and the ops no – 8 and 9 on 28/09/2021. But the ld. counsel appearing for the revisionists, by filing track report, has drawn our attention that the S/R, in respect of ops/doctors attached to the Park view Super Speciality Hospital, has already been completed on 23/11/2021.  Upon meticulous perusal of the said track report, there is no hesitation to hold that the S/R in respect of aforesaid ops has been completed on 23/11/2021. But the aforesaid orders passed by the ld. concerned trial commission speak for otherwise.

Now we have carefully perused the order no 7 dated 20/01/2022 wherefrom it appears to us that the ld. trial commission has recalled the order dated 09/12/2021 with a cost of Rs.500/- each. But it is the settled principle of law that the ld. Trial Commission has no power to recall of its own order.

From the aforesaid discussions, it is crystal clear to us that there are numbers of irregularities in passing the aforesaid orders mentioned earlier. At this juncture the said irregularities should be cured in order to meet the proper justice to the parties and to that effect the ops/revisionists are entitled to file their written version without any order as to costs. Though the ld. Trial Commission has already accepted the written version yet there is no need to pay any cost of Rs.500/- each.

Now, there is no bar at the behest of the ops/revisionists to contest their case by filing written version without payment of aforesaid costs. The cost amounting to Rs. 500/- each imposed by the Ld. Trial Commission is hereby set aside.

Both parties are directed to appear before the concerned Commission on 25/04/2023 for taking necessary order/orders from the ld. concerned Commission.

Considering the above facts and circumstances and for finality of litigation the instant Revision Petition is allowed on contest without any order as to costs as per above observations.

When the final order is passed in respect of aforesaid Revision Petition, the pending interlocutory application being no – IA/925/2022 has no legal authenticity and accordingly the said interlocutory application being no – IA/925/2022 stands disposed of.

Note accordingly.

Let a copy of this order be sent to the ld. Concerned Commission for compliance and for taking necessary actions.

Office to comply.