HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This revision petition under section 17(i)(b) of the Consumer Protection Act, 1986 ( in short, ‘the Act’) has been filed against the order No. 22 dated 05.09.2023 passed by the Learned District Consumer Disputes Redressal Commission, Howrah in connection with M.A. application being No. M.A./38/2018 arising out of complaint case No. CC/317/2017 whereby the Learned District Commission has been pleased to dismiss the prayer for setting aside the ex parte order and for accepting the written version filed by the revisionist / opposite party No. 1.

2. The revisionist has made the following prayers :-

“To issue a Rule calling upon the Respondents herein to show cause as to why the impugned order being Order No. 22 dated 05.09.2023 passed by the Hon’ble District Consumer Disputes Redressal Commission, Howrah in M.A. Case No. 38/2018 filed in CC/317/2017 be not set aside and / or quashed and upon hearing the parties, cause being shown and / or if no cause shown to make the Rule absolute and / or to pass such other further order / orders as Your Lordships may fit and proper.”

3. The only issue in this case relates to foreclosure of rights of the opposite party to file written version. Case of the parties, therefore, need not be discussed.

4. Heard the Learned Advocate appearing for the revisionist and carefully perused the record.

5. Learned Advocate appearing for the revisionist has submitted that the impugned order dated 05.09.2023 is bad in law and in facts and the Learned District Commission below erred in holding that there is no scope to set aside the ex parte order.

6. Learned Advocate appearing for the revisionist has prayed for setting aside the impugned order. In the issue of filing written version the law is very categorical.

7. The Hon’ble Apex Court in Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another in (2011) 9  SCC 541 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 theState 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. The Hon’ble Supreme Court in Daddy’s Builders Pvt. Ltd. v. Manisha Bhargava [Petition for Special Leave to Appeal (Civil) No.1240 of 2021] decided on 21.02.2021 observed as follows :-

“5. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and /or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.

6. In view of the above and for the reasons stated hereinabove, the present special leave petition deserves to be dismissed and is accordingly dismissed.”

11. In this case, I find that the complainant / opposite party filed the petition of complaint under section 12 of the Consumer Protection Act, 1986 on 20.09.2017 and the revisionist / opposite party No. 1 entered appearance in this case by filing Vakalatnama on 02.11.2017. Since, the statutory period of 45 days had been expired from the date of appearance of the opposite party No. 1, the Learned District Commission below was pleased to reject the prayer of the revisionist / opposite party No. 1 for filing written version.

12. Under this facts and circumstances and on consideration of the above noted rulings I am of the view that the impugned order passed by the Learned District Commission is within the jurisdiction and this is not bad in law.

13. There is no scope to interfere with the impugned order.

14. Accordingly, the revisional application is dismissed in limine.

15. Considering the facts and circumstances of the case, there will be no order as to costs.

16. The Learned District Commission is directed to proceed with the complaint case and decide the same as early as possible without granting any adjournments to either of the parties.

17. Let a copy of this order be sent down to the Learned District Commission below at once.