Oral
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Revision Application No. 32 of 2023
Canara Bank, Saket Branch, 201, Saket, Meerut-250001 through it's Chief Manager
.. Revisionist.
Saurabh Dagar S/o Ramvir Singh Dagar R/o B-637, Ganga Nagar, Mawana Road, Meerut, U.P.
…Opposite Parties.
1- Hon’ble Mr. Justice Ashok Kumar, President.
2- Hon’ble Sri Vikas Saxena, Member.
Sri Abhay Kumar, Advocate for the revisionist.
None for the Opposite Parties.
24.4.2023
JUDGMENT
Per Sri Vikas Saxena, Member:The original complaint 160 of 2021 is filed by the complainant, a customer of the opposite party Canara Bank, who has taken an education loan from the bank. During the proceedings of the complaint order dated 05. 04.2022 were passed in the following manner: —
“Called out. Complainant is present. None is present for opposite party. This complaint is proceeded ex-party against the opposite party. Fixing 28/06/22 for ex parte evidence".
The opposite party Canara Bank moved an application dated 28. 06. 2022 for setting aside order dated 05. 04. 2022, but the District Consumer Commission not only refused to set aside ex-parte order but also closed the opportunity of filing written-statement on behalf of the opposite party on the ground that since no written-statement has been filed by the opposite party even after 45 days has been passed after the notice for appearance of the opposite party was sent to them. Being aggrieved from the impugned order, the opposite party filed this revision petition.
It is contended in the revision petition that the complainant was directed by the Court to provide complete sets or documents including a copy of the complaint vide ordered dated 05. 10. 2021 by fixing 05. 01. 2022 for filing of written-statement but the complainant did not supply the requisite papers. The District Consumer Commission passed an illegal, arbitrary and unreasonable order on these grounds this revision petition has been filed.
We have heard the learned Counsel for the revisionist and perused all the relevant documents on record. On this basis our findings on the revision petition are following: —
For this revision these two core issues emerge for consideration of this bench-
- Whether the consumer court or any other code for that matter has an authority to restrain any party to the complaint for taking part in further proceedings after passing of such an ex party order.
- What is the point of time in the proceeding of the complaint of consumer protection act after 45 days of which, written statement of the opposite party cannot be admitted as per the statute regarding the first point it has to be seen that in consumer protection act, 2019 power to proceed ex- parte has been given when the opposite party is absent, as given in section 38 in the following manner-
38(3)(b) (b) if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the
District Commission, it shall proceed to settle the consumer dispute—
- ......................................................................................................................................
- (ii) ex parte on the basis of evidence brought to its notice by the
complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission;
Thus Section 38(3) (b) of Act, 2019 provides that the District Consumer Forum (Commission now) shall proceed to settle the consumer dispute ex-parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the ForumIt provides the procedure when the opposite party despite receiving the information of the complaint, fails to take any action to represent his case before the District Consumer Commission the Act authorises the District Consumer Commission to settle the consumer dispute ex-parte.
There is no iota of doubt that in this case, the learned District Consumer Commission has rightly proceeded-parte through its impugned order dated 05-04-2022 but this is pertinent to note that it was merely an order to proceed ex-parte was passed and no proceeding took place on the date of the order on 05-04-2022 in absence of the revisionist. The question before this revisional bench is that what shall this impugned order have affect on the rights of the revisionist. We find the answer in Hon’ble Apex Court’s judgment in Sangram Singh V/s Election Tribunal, Kota reported in 1955 AIR SC Page 425. In this judgment the Hon’ble Supreme Court opined that when a defendant has been served and has been afforded an opportunity and does not appear, the Court may proceed in his absence but 'to proceed ex-parte' means only that on that particular day the whatever proceeding may take, it will be in absence of the defendant and whenever the defendant appear before the Court he has liberty to take part in further proceedings without any application to set aside such an ex-parte order as the order "ex-parte" only authorises any Court to proceed in a particular day in absence of a party the Court has no authority to refrain any party from taking part in further and future proceedings by such an order.
It is also said by the Hon’ble Apex Court in the judgment that if the defendant needs to set-aside the proceedings that has already been took place in his absence then he needs to file an application to set-aside those proceedings which have been taken by the Court ex-parte i.e. in his absence. On the other hand, if he wants to take part in further proceedings without setting aside the proceedings undertaken in his absence he has liberty to participate without any application. The Hon’ble Apex Court has defined 'the ex-parte order' in the following way.
......... Now to analyze rule 6 and examine its bearing on the first hearing. When the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served-
"(a).................................................... the Court may proceed ex parte".
The whole question is what do these words mean? Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimham A,I.R. 1925 Mad. 1274. that ex parte merely means in the absence of the other party, and on the other side is the view of O'Sullivan, J., in Hariram v. Pribhdas, A.I.R. 1945 Sind 98, 102 that it means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The remaining decisions, and there are many of them, take one or the other of those two views.
In our opinion, Wallace, J. and the other Judges who adopt the same line of thought, are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex -parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorized to make. All that rule 6 (1) (a) does is to remove a bar and no more. It merely authorizes the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties. The contrast in language between rules 7 and 13 emphasizes this. Now, as we have seen, the first hearing is either for the settlement of issues or for final hearing. If it is only for the settlement of issues, then the Court cannot pass an ex parte decree on that date because of the proviso to Order XV, rule 3(1) which provides that that can only. be done when "the parties or their pleaders are present and none of them objects".
On the other hand, if it is for final hearing, an ex parte decree can be passed, and if it is passed, then Order IX, rule 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside. Contrast this with rule which does not require the setting aside of what is commonly, though erroneously, known as "the ex parte order". No order is contemplated by the Code and therefore no order to set aside the order is contemplated either.But a decree is a command or order of the Court and so can only be set aside by another order made and recorded with due formality.
Then comes rule 7 which provides that if at an adjourned hearing the defendant appears and shows good cause for his "previous non-appearance", he can be heard in answer to the suit "as if he had appeared on the day fixed for his appearance". This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared,
It is further given by the Honourable Apex Court in the Judgement-
."............. Therefore, if a party does appear on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX, rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.........."
Following the aforesaid judgment of Hon’ble Apex Court this bench is of the view that in the impugned order dated 05-04-2022the learned District Consumer Commission has only recorded that the case would proceed ex-parte but in fact no ex-parte proceedings took place on that day, therefore, the complainant has right to participate in further proceedings (even without any application or prayer made on that behalf). On the basis of aforesaid judgement of Hon’ble Apex Court the revision is fit to be allowed on the ground that the revisionist has every right to participate in further proceedings.
One important point remains to consider here that the revisionist has not submitted its written statement till date, assuming that by that ex-parte order he lost all rights to file a written statement although it was mistakenly assumed by the revisionist in light of so called ex-parte order. However, as per Section 38(3)(a) the revisionist, as an opposite party, has his opportunity of filing his written statement within a period of 30 days or within such an extended period not exceeding 15 days as may be granted by the District Consumer Commission. This limitation on his right has been affirmed by the Humble Apex Court in the judgment of M/s Daddy’s Builders Private Limited V/s Manisha Bhargava reported in (2021) 3 SCC 669. In this judgment the Hon’ble Apex Court categorically substantiated this point that the opposite party has no right to file his written statement beyond period of 30 days and after that an extended time of 15 days i.e. in all 45 days. Now this point remains to be seen that what is the point of time from which 30 days is and extended time of 15 days i.e. in total 45 days are to be counted. The district Commission in the impugned order has directed that since no written statement has been filed by the opposite party even after 45 days has been passed after the notice for appearance of the opposite party was sent to him, and then he has no opportunity left to file his written statement. In this regard section 38(3) of consumer protection act 2019 has to be seen which provides -
38(3) The District Commission shall, if the complaint admitted by it under sub-section (2)of section 36 relates to goods in respect of which the procedure specified in sub-section (2)cannot be followed, or if the complaint relates to any services,—
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Commission;
On perusal of section 38 sub section 3(a) of the consumer protection act, 2019 it is to be concluded that the time limit of 30 days and thereafter 15 days, granted by the commission, are provided in the statute after referring of copy of the complaint by the district Commission to the opposite party and not the service of the notice or sending a notice for appearance. Now question remains to be seen when actually a copy of the complaint for referred to the opposite party. Normally, copy of the complaint sent along with the notice but in absence of a cogent proof, this cannot be presumed that the copy of the complaint was referred i.e. served upon the opposite party but this fact should be established before debarring him to file his written statement or before closing his opportunity to file his version in the complaint. It is pertinent to mention here that the appellant has stated that the District Commission, vide order dated 05.10.21, has directed the complainant to give copies of all set of documents including a copy of the complaint to the O.P.
Therefore, in light of the aforesaid judgements of the Hon’ble Apex Court this is directed that the district Commission shell ascertain as to when a copy of complaint was actually received by the revisionist/opposite party and accordingly allow or disallow them to file their written statement within 30 days in the District Consumer Commission and even after 15 days if the District forum finds it appropriate to extend the period to its satisfaction. It is also directed that the District Consumer Commission shall not accept the written statement of the revisionist beyond the period envisaged in the aforesaid judgment of Hon’ble Apex Court in M/s Daddy’s Builders Private Limited V/s Manisha Bhargava. (2021) 3 SCC 669, and also the district Commission shall not restrict the participation of the opposite party in further proceedings even if the opposite party is debarred from filing its written statement. With these conditions the revision is fit to be allowed.
ORDER
The revision is allowed and the impugned order is set aside. The revisionist is permitted to take part in further proceedings in the complaint Case No. 160 of 2021 despite existence of order dated 05-04-2021.However, all orders subsequent to it is set aside. The revisionist is directed to appear before the learned District Consumer Commission on 18-05-2023. The District Consumer Commission is also directed to strictly follow the judgment of Hon’ble Apex Court in M/s Daddy’s Builders Private Limited V/s Manisha Baraga(2021) 3 SCC 669 in the matter of filing of written statement by the revisionist with due consideration of Section 38(3) of the consumer protection act, 2019.
Parties shall bear their own costs.
Let copy of this order is made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission today itself.
(Justice Ashok Kumar) (Vikas Saxena)
President Member
Harish.
PA-2, C-1
