HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Challenge is to the Order No. 7 dated 04.08.2023 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/63/2023 thereby the case was fixed for taking steps for service of notice upon the Opposite Party No. 2 and for hearing of the petition for interim relief.

2. The Respondent as a complainant instituted a complaint case being No. CC/63/2023 against the Revisionist under section 35 of the Consumer Protection Act, 2019 praying, inter alia, for the direction upon the Revisionist / Opposite Party to complete the development work of the flat and hand over the possession as per the registered deed of agreement dated 08.07.2020 upon receipt of the balance consideration money, if any and / or refund the entire amount of Rs.4,50,000/- ( Rupees four lakh and fifty thousand only) along with interest @ 18% per annum along with other consequential reliefs as the Revisionist / Opposite Party failed to hand over the possession within 15 months from the date of agreement dated 08.07.2022. The Revisionist / Opposite Party entered into an appearance in this case filed by the Complainant / Respondent by filing Vakalatnama on 19.06.2023. Next date was fixed on 24.04.2023 for filing written version. On 24.04.2023 the Revisionist was unable to attend the court as her husband who is a cardiac patient on that date, the health of the husband of the Revisionist was not well.

3. The Petitioner was not able to file written version on that date. Hence she prayed for an adjournment for the day. Learned District Commission was pleased to allow the prayer of the Petitioner and fixed a date on 04.08.2023 for filing written version and hearing injunction petition. On 04.08.2023 the Learned Advocate for the Revisionist appeared and prayed for time for filing written version as the Advocate on record was ill. Since the service of notice upon the Opposite Party No. 1 / Revisionist has already been effected on 17.05.2023 and statutory period for filing written version has already been expired, the prayer of the Opposite Party No. 1 / Revisionist was rejected and the case was fixed for ex parte hearing against the Opposite Party No. 1 by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the Revisionist has preferred this revision petition.

5. Now, the question is whether the impugned order should be sustained. The Learned Advocate appearing for the Revisionist has urged that the husband of the Revisionist was suffering from cardiac problem. As such, she was not able to file written version on 24.07.2023 and on 04.08.2023. The Learned Advocate for the Revisionist was also ill. As such, on 04.08.2023 the Revisionist failed to file written version before the District Commission. Learned Lawyer for the Revisionist has also urged that Learned District Commission acted illegally and with material irregularity by not allowing the Revisionist’s application for adjournment on the ground of illness.

6. He has further urged that Learned District Commission below failed and / or neglected to consider the facts as shown in the adjournment petition. Learned Advocate appearing for the Revisionist has further urged that the revisional application should be allowed and the impugned order should be liable to be set aside.

7. Having heard the Learned Advocate appearing for the Revisionist and on perusal of the record we are of the view that 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. Learned Advocate appearing for the Revisionist in support of his argument has relied upon the decisions reported in (2021) Supreme Court case No. 673 and the judgment passed by the Hon’ble Apex Court in connection with Civil Appeal No. 7546 of 2021. However, reliance on these two judgments in the adjudication of this case revisional application, facts being at variance, would be misplaced. Accordingly, the revisional application is dismissed in liminie.

12. Considering the facts and circumstances there will be no order as to costs.

13. The revisional application is, thus, disposed of accordingly.

14. Let a copy of this order be sent to the Learned District Commission as early as practicable.

15. Office to comply.