1.       This revision petition has been filed under Section 58(1)(b) of the Act 2019 in challenge to the Order dated 04.03.2023  in RP No. 04/2023 of the State Commission Himachal Pradesh arising out of Order dated 01.09.2022 of the District Commission in Complaint no. 322 of 2022.

2.       Heard the learned counsel appearing for the petitioner and have perused the record including inter alia the Order dated 14.03.2018 of the District Commission, the Order dated 14.11.2022  of the State Commission and the petition.

3.       The impugned Order passed by the State Commission may be quoted hereinbelow which reads as thus:

1.         Present revision pettion is preferred against the order dated 14.12.2022 of leaned District Commission Kangra at Dharamshala, whereby the application for setting aside the ex-parte order dated 01.09.2022 was dismissed and simultaneously, right to file reply of the petitioner/ opposite party No.2 beyond stipulated period of 45 days was struck off. 

2.         We have heard learned revision petitioner and respondent No. 1 complainant and have also perused the revision petition as well as the impugned order.

3.         The petitioner/opposite party No. 2 did not deny the service of notice before the District Commission below. From the date Service of notice, the petitioner/opposite No. 2 party has failed to file reply within stipulated period of 45 days. 

4.         Thus, in view of the order passed by the Hon'ble Supreme Court of India in the case of New India Assurance Co. Ltd. Vs. Hill Multipurpose Cold Storage (P) Ltd.(2020) 5 SCC 757, no ground is made out. Accordingly, the present revision petition is dismissed. 

5.         No order as to costs. 

6.         Learned District Commission below on receiving the copy of order is directed to proceed with the matter further in accordance with law. 

7.         Certified copy of the order be sent to each of the parties and their counsel(s) free of cost, as per Rules. File of District Commission below along with certified copy of order be sent back and file of State Commission be consigned to record room after due completion. Revision petition is disposed of. Pending application(s), if any, also disposed of.

4.       The factual backdrop which eventually led to the appeal that was filed in the State Commission and to the Order that was passed in the same would be clear if we refer to the District Commission’s Order that was passed on 01.09.2022 which reads as follows:-

Present:         Sh. Nitin Paul, Adv. Ld. counsel for the complainant.

Sh. Gaurav Pathania, Adv. Ld. Counsel for the OP No. 1 POA filed.

None for OP No. 2.

Reply filed on behalf of OP No. 1. Taken on record.  No one appeared on behalf of the OP No.2. Case be called after lunch.

Member                                  Member                                  President

After Lunch.

It is 3.00 p.m.  Case called repeatedly but no one put in appearance on behalf of the opposite party no. 2.  As such proceed against ex-parte.

Now to come up for filing rejoinder if any, and adducing evidence on behalf of the complainant on 20.9.2022.

Member                                  Member                                  President

5.       From the perusal of the record it further transpires that subsequently some application seeking the recall of the afore-said Order passed by the District Commission was moved on behalf of the petitioner but the same also got dismissed vide Order dated 14.12.2022 passed by the District Commission.  The said Order may also be quoted hereinbelow:

Present:         Mr. Nitin Paul, Advocate for complainant.

                        Ms. Krishti, ld. vice counsel for OP No. 1.          

                        Mr. Malkeet Singh, Advocate for opposite party no. 2 (through ex-parte).

                        Vide separate and detailed order, application under order 9 rule 7 of CPC is dismissed.  As calculated time period of 45 days has been lapsed, hence, right to file reply on behalf of opposite party no. 2 is struck off.  Learned counsel for complainant seeks time to file rejoinder to the reply file by opposite party no. 1 and adducing complainant’s evidence.  Granted.  Now to come up on 07.01.2023.

6.       Learned counsel for the petitioner submits that after receiving the notice of the complaint when the petitioner failed to appear before the District Commission the Order dated 01.09.2022 to proceed ex parte against it was passed on the 36^th day from the date of its receiving the notice. Submission is that as such unless this Order to proceed ex parte was to be set aside the petitioner could not file its written statement before the District Commission. Therefore, according to learned counsel the Order for the closure of opportunity to file a written statement is not a just or legal Order.  Further submission is that even the Order to proceed ex parte was rather harsh and ought to have been set aside when the application in that regard was moved by petitioner.  Submission is that when the appeal was filed in the State Commission the State Commission did not take into account any of these aspects and has dismissed the appeal without proper application of mind to the factual background of the case. 

7.       This bench has perused the record in the light of the submissions made by learned counsel but feels constrained to observe that the submission made on behalf of the petitioner lacks merit.  It may be true that the Order to proceed ex parte might have been passed on the 36^th day but on a specific query that was raised by the bench, learned counsel has been fair enough to admit that the application to seek recall of the District Commission’s Order to proceed ex parte was moved much after lapse of 45 days period provided to it to file the written statement.  Though the learned counsel has not been able to furnish the copy of the application which was moved to seek recall of the District Commission’s Order directing to proceed ex parte but it is clear from record that the afore-said application seeking the recall was dismissed by District Commission on 14.12.2022. This is certainly not a case in which the application to seek the recall of the Order whereby the District Commission directed to proceed ex parte was moved soon thereafter or within a reasonable period thereafter.  Had the petitioner not been remiss so much in its approach and not have been so indifferent towards the proceedings going on in the District Commission it would not have either failed to appear before it within stipulated period and would certainly not have failed to move appropriate application to seek the recall of ex parte directions soon thereafter. In such a situation like this, there was hardly any option for the State Commission then to pass the order which it did. 

7.       Perusal of the impugned Order passed by the State Commission shows that it is in accordance with law laid down by the Hon’ble Apex court. 

8.     This Bench fails to see any perversity in the Orders of the two fora below as may go to vitiate their findings. Nor does the Bench find any jurisdictional error or material irregularity as may occasion to call for interference in the exercise of the revisional jurisdiction of this Commission. (Refer: Order dated 08.09.2022 of Hon’ble Supreme Court in Civil Appeal No. 5928 of 2022 Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr.).

9.       The revision petition being bereft of merit stands dismissed as such.  

10.     The Registry is requested to send a copy each of this Order to all parties in the petition and to the learned counsel for the petitioner. The stenographer is requested to upload this Order on the website of this Commission immediately.