HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Challenge is to the order No. 9 dated 13.04.2023 passed by the Learned District Consumer Disputes Redressal Commission, Howrah ( in short, ‘the District Commission’) in connection with Consumer Case No. CC/161/2022 thereby the case was fixed for ex parte argument and for filing BNA.

2. The respondent No. 1, the complainant herein instituted a complaint case being No. CC/161/2022 against the revisionist and others under section 35 of the Consumer Protection Act, 2019.

3. The revisionist and other opposite parties did not appear on 29.07.2022 and did not file any written version. Since the statutory period of limitation had already expired, the case was fixed for ex parte hearing against the opposite parties by the impugned order.

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.

6. Learned Advocate appearing for the revisionist has urged that Learned District Commission below has erred in passing the impugned order and the Learned District Commission below has acted in exercise of its jurisdiction illegally and with material irregularity and passed the impugned order under revision illegally.

7. He has further urged that Learned District Commission has failed to exercise its jurisdiction as vested to it by law.

8. He has further urged that Learned District Commission below acted illegally and without material irregularity in not assigning the proper and cogent reason in passing the impugned order under revision.

9. He has further urged that Learned District Commission could not give a fair opportunity to the revisionist to contest the consumer case No. CC/161/2022 by accepting the written version thereby setting aside the ex parte date.

10. He has further urged that the Learned District Commission below should have considered the submission of the Learned Advocate of the revisionist that the complaint case has been filed against dead persons.

11. He has further urged that the impugned order passed by the Learned District Commission below is unconstitutional and the order passed by the Learned District Commission is not a speaking order. So, the revisional application should be allowed and the impugned order should be set aside.

12. Having heard the Learned Advocate appearing for the revisionist and on perusal of the record it appears to us that after filing of the present complaint case notice was duly issued by the Learned Commission and notice was duly served upon the revisionist and others but the revisionist and others did not turn up before the Learned District Commission and no written version was filed on behalf of them. The revisionist in their memo of revisional application has clearly and categorically stated in the revisional application that the revisionist and others could not file the written version within the stipulated time. Since, the statutory period of limitation has already expired, the case was proceeded ex parte against the revisionist and others.

13. 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.”

14. 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.

15. 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.

16. 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.

17. Accordingly, the revisional application is dismissed in limini. Considering the facts and circumstances, there will be no order as to costs.

18. District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of the order passed by this Commission.