Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
By this order, we are disposing of this misc. application filed along with delay condonation application for restoration of appeal which has been dismissed for default on finding that the appellant and their counsels were absent on the day this appeal was fixed for hearing. This application has been filed for restoration, it means the applicant want us to review our own order and quash and set aside the order passed by us dismissing this appeal for default. Under Section 22 (2) of Consumer Protection Act, 1986, power of review is available only to the Hon’ble National Consumer Disputes Redressal Commission. Such power is not vested in us by the Act of Parliament in any other provisions of Consumer Protection Act, 1986. So, the power of review or power to set aside the ex-parte order are given only to the National Consumer Disputes Redressal Commission under Section 22(2) and 22-A of the Consumer Protection Act, 1986 and no such power either of review or setting aside the order of dismissal passed by this Commission either in appeal or Revision or in Complaint is vested in us. Whether the State Consumer Disputes Redressal Commission has got power of review was the issue involved in the Civil Appeal No.4307/2007 in the case of Rajeev Hitendra Pathak & Ors. V/s. Achyut Kashinath Karekar, wherein the Apex Court clearly held that the District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission have no power of review or power to set aside the ex-parte order and it is vested only with the National Consumer Disputes Redressal Commission under Section 22(2) and 22-A of the Consumer Protection Act, 1986. Hon’ble Apex Court in Para 36 observed as under :-
“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.”
In the case of Jyotsana Arvind Kumar Shah & Others V/s. Bombay Hospital Trust (1999) 4 SCC 325, the Hon’ble Apex Court clearly held that the State Commission has no jurisdiction to set aside its previous ex-parte order, more so, if it is a reasoned order and action of State Commission was not one permissible under the law.
In the light of these two rulings of the Hon’ble Apex Court, we are of the considered view that this application filed for setting aside the dismissal order passed in the appeal, is not tenable in law and as such we pass the following order :-
-: ORDER :-
1. Misc. Application No. 367/2010 a/w. delay condonation application No.368/2010stands rejected in view of rulings of the Apex Court.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 24th April 2012.
