HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Challenge is to the order No. 6 dated 18/12/2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata Unit-III (South) ( in short, ‘the District Commission’) in connection with consumer case No. CC/339/2023 thereby the case was fixed for ex parte hearing and for filing affidavit in chief by the complainant.

2. The respondent being the complainant herein instituted a complaint case being No. CC/339/2023 on the allegation of deficiency in service and unfair trade practice on the part of the opposite parties / revisionists. The revisionists / opposite parties appeared before the Learned District Commission on 23.11.2023 and prayed for time for filing written version.

3. The prayer of the opposite parties was considered and allowed by the Learned District Commission. On 18.12.2023 the opposite parties appeared before the Learned District Commission and prayed for time for filing written version and the said prayer was rejected by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the revisionists / opposite parties have preferred this revision petition. Now, the question is whether the impugned order should be sustained.

5. Heard the Learned Advocate appearing for the revisionists. Perused the memo of revisional application and other relevant documents.

6. Having heard the Learned Advocate appearing for the revisionists and on careful perusal of the record it appears to me that the revisionists  have stated in the revisional application that due to serious illness of the family member of the Learned Counsel, the Learned Counsel was unable to prepare written version in connection with the complaint case being No. CC/339/2023. As such, the Commission was pleased to fix the case for ex parte hearing. On going through the record, I find that the revisionists / petitioners have not stated the name of the Learned Advocate who appeared before the Learned District Commission on behalf of the revisionists / opposite parties. The revisionists / petitioners have not explained why they did not engage another Counsel in view of the illness of the Learned Counsel’s relative. So, the cause shown is not cogent, sufficient and believable.

7. The Learned District Commission has dismissed the prayer for filing written version since the statutory period for filing written version was over.

8. 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.”

9. 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.

10. 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.

11. The Learned Advocate appearing for the revisionists in support of his argument has relied on the judgment passed by the Hon’ble Apex Court in connection with Civil appeal No. 7546 of 2021 and the judgment reported in 2022 Livelaw SC 465.

12. However, reliance on these two judgments in the adjudication of this case, facts being at variance, would be misplaced.

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

14. In the result, the revisional application be and the same is dismissed with costs of Rs.5,000/- (Rupees five thousand only).

15. The revisionists / petitioners are directed to deposit the cost by way of a Demand Draft in the name of SCWF within 4 (four) weeks from today. In case, the revisionists fail to deposit the cost within the prescribed time period, then it shall also be liable to pay interest @ 9% per annum till realization.

16. List the matter on 11.09.2024 for compliance.

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

18. The Learned District Commission below is directed to dispose of the case as early as possible without granting any unnecessary adjournment to either of the parties.

19. Office to comply.