ORDER

03.01.2024

1. An application filed for restoration of complaint case dismissed for non-appearance on 31.10.2023.
2. In brief facts are that  a complaint case filed on 22.11.2022 and OP summoned for 06.04.2023. The complainant could not take any action on the account that confine to bed due to serious indisposition on the appointment date. It is further stated that on 31.10.2023 complainant was  out of town to Mumbai due to urgent and unawardable work, therefore, could not present. It is highly regretted as circumstances were beyond his control and complaint case was dismissed in default for non-appearance. It is stated that complainant has strong desire to peruse the case for redressal of grievances. The applicant is seeking restoration of the case.
3. We have heard counsel for applicant Ms. Amit Kumari and perused the record.
4. Let us peruse the provisions of the Consumer Protection Act, 2019. The powers vested with the District Consumer Commission as per Act are as under:

 The Consumer Protection Act, 2019 laid down the procedure before the District Commission from section 34 to 39. As per section 38 (9) (a to f) provides powers same as vested in a Civil Court under the code of civil procedure, 1908 while trying a suit in respect of the falling matters namely :-

Section 38

1. The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
2. Requiring the discovery and production of any document or other material object as evidence;
3. Receiving of evidence on affidavits;
4. The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
5. Issuing of commissions for the examination of any witness, or document; and
6. Any other matter which may be prescribed by the Central Government.

Section 38 (11)

Where the complainant is a consumer referred to in sub-clause (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Commission thereon.

Section 38 (12)

In the event of death of a complainant who is a consumer or of the opposite party against whom the complaint has been filed, the provisions of Order XXII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be.

5. The above mentioned provisions clearly established that the Commission has no vested powers to restore the complaint dismissed for non appearance and non-prosecution. The powers are not included in section 38 (9) (a to f), 11 and 12 of CP Act, 2019. The power which is excluded cannot be assumed. Therefore, we are of considered opinion that this Commission has no powers to restore the complaint dismissed for non appearance and non-prosecution.
6. It is pertinent to mention here that a complaint case admitted and notice issued to OP for 05.12.2022 but complainant and his counsel did not take any steps for service of OP. On 06.04.2023 none appeared but further opportunity granted for service of OP. Thereafter again opportunity granted for appearance of complainant on 31.10.2023. On 31.10.2023 again neither complainant appeared nor his counsel. In the present application no sufficient cause shown for non-appearance and for not taking any steps for service of OPs. Therefore, we find no merit in the application.
7. In view of above observations and discussions application is dismissed. File be consigned to record room.
8. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   03.01.2024.

(SANJAY KUMAR)                                    (NIPUR CHANDNA)                                   (RAJESH)

   PRESIDENT                                                   MEMBER                                               MEMBER