Per Justice Sham Sunder , President This application for restoration of the appeal, which was dismissed in default and for want of persecution on 29.8.2011, has been filed by the applicant / appellant. 2. The grounds, set up in the application, under disposal, are that the applicant/appellant inadvertently noted the date as 29.8.2010, and when, on that date (29.8.2010), he came to attend the Commission, the case was not found to have been listed. It was stated that thereafter, the applicant/appellant met with an accident, and got brain injuries and remained admitted in the Post Graduate Institute of Medical Education and Research, Chandigarh. Thereafter, he was advised bed rest. It was further stated that the absence of the applicant/appellant, on 29.8.2011 was neither willful nor intentional, but due to the reasons, mentioned above. Accordingly the prayer, referred to, in the opening para of the instant order, was made. 3. We have heard the Counsel for the applicant/appellant, as also the applicant/appellant, in person, and have gone through the record, carefully. 4. The Counsel applicant/appellant, submitted that the absence of the applicant/appellant or his Counsel on 29.8.2011, when the appeal was dismissed in default and for want of prosecution, was neither intentional, nor deliberate, but on account of the reasons, mentioned in the application, under disposal. He further submitted that it is well settled principle of law that every lis should be decided on merits, than by default. He further submitted that substantial questions of law, and fact, are involved, in the appeal, and if the same is not restored, an irrepairable loss shall be caused to the applicant/appellant. He further submitted that the appeal be restored to its original number, and the applicant/appellant be afforded an opportunity of being heard and thereafter it be decided on merits. 5. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the applicant/appellant, we are of the considered opinion, that the application is liable to be dismissed, for the reasons, to be recorded hereinafter. First Appeal No.443 of 2009 was filed on 18.9.2009 against the order dated 17.7.2009, rendered by the District Consumer Disputes Redressal Forum(I), U.T, Chandigarh vide which the complaint of Rajendera Singh Panwar, complainant/respondent filed U/s 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), was allowed and the applicant/appellant was directed to refund a sum of Rs.4600/- charged by him as fee; pay Rs.25,000/- as compensation, for harassment, and for not filing the Writ Petition promptly and not pursuing the same, in the Hon’ble High Court, as also litigation costs of Rs.5000/.- On 29.8.2011, when the appeal was fixed for final arguments, neither the applicant/appellant nor any legally authorized representative, on his behalf appeared, whereas the respondent was present in person. On that date, the following order was passed ; “None has put in appearance, on behalf of the appellant, though three calls have been given, to the appeal, and it is already 2.00 p.m. Shri R.S.Raj, Advocate, who was earlier appearing, on behalf of the appellant, has submitted that, he was only appearing, by way of courtesy, but was never given any Vakaltnama by the appellant, for appearing in this appeal. Even earlier, on 29.7.2010, 12.11.2010 and 27.7.2011, neither the appellant, nor any duly authorized representative, on his behalf, put in appearance. It, thus, appears that the appellant is not interested in prosecuting the appeal. The same is, accordingly, dismissed in default of appearance of the appellant, and for want of prosecution.” 6. The order extracted above , clearly goes to show that even on 29.7.2010, 12.11.2010 and 27.7.2011, neither the appellant, nor any legally authorized representative, on his behalf, put in appearance. It was not that, on one date, the applicant/appellant or his legally authorized representative did not appear, in the appeal, when it was fixed for arguments, but, on a number of dates, as mentioned above, he failed to appear. The appeal had already grown about 2 years old. It was, under these circumstances, that it was found that the applicant/appellant was not at all interested in prosecuting the appeal and, as such, the same was dismissed in default of his appearance, and for want of prosecution, as envisaged by Section 13(2)(c) read with Section 18 of the Act, and Rule 8(6) of the Chandigarh Consumer Protection Rules, 1987. No document, in support of the pleas taken up, in the application, under disposal, has even been produced by the applicant/appellant. The absence of the applicant/appellant on 29.8.2011, was, thus, intentional and deliberate. 7. The principal question, that arises for consideration, is, as to whether, the State Commission is empowered to restore the appeal dismissed by it, in default of appearance of the appellant, and for want of prosecution. There is no provision, in the Act, empowering the State Commission, to review/recall its own order, like the one, passed in this case. In Rajeev Hitendra Pathak and others vs Achyut Kashinath Karekar and another IV(2011)CPJ 35(SC), a case decided by a three judge Bench of the Apex Court, the facts were that the State Consumer Disputes Redressal Commission, Maharashtra, issued notice of the complaint filed before it, to the Opposite Parties. On 9.9.2004, the State Commission dismissed the complaint, for want of prosecution. On 4.11.2004, the complainants, filed an application, for recalling the order dated 9.9.2004. The State Commission recalled the order dated 9.9.2004, and restored the complaint. Feeling aggrieved, the appellants/OPs filed a revision petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it. Still feeling aggrieved, the appellants/OPs, filed Civil Appeal No.4307 of 2007 in the Apex Court. The Apex Court in Rajeev Hitendra Pathak and others’s case (supra), held that, on careful analysis of the provisions of the Act, it is abundantly clear, that the Tribunals are creatures of Statute and derive their power from the express provisions of the same (Statute). The District Forums and the State Commissions have not been empowered, to set aside the ex parte orders and review/recall the same. The powers, which have not been expressly given, by the Statute, cannot be exercised by them. Ultimately, Appeal No.4307 of 2007 was accepted by the Apex Court, and the findings of the National Commission, holding that the State Commission, was empowered to review/recall its own order, were set aside. The principle of law, laid down in Rajeev Hitendra Pathak and others’s case (supra), is fully applicable, to the facts of the instant case. This Commission is bound by the principle of law, laid down, in the aforesaid case, by the Apex Court. Since, this Commission has no power to review/recall or set aside its order, dismissing the appeal, in default of appearance of the appellant, and for want of prosecution, on 29.8.2010, the application is not maintainable, before it. The application is,thus, liable to be dismissed, on this ground alone. 8. For the reasons recorded above, the application, seeking restoration of appeal is dismissed, being not maintainable, with no order as to costs. 9. Certified Copies of this order be sent to the parties, free of charge. 10. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
