Per Mr.Justice S.B.Mhase, Hon’ble President
1. Heard Mr.A.V.Patwardhan-Advocate for the appellant & Mr.C.P.Deogirikar-Advocate for the respondent.
2. This appeal arises from the decision of consumer complaint no.138/2005 decided by the District Consumer Disputes Redressal Forum, Thane. It is interesting to note that initially by order dated 02/01/2006, the complaint was partly allowed and the appellant was directed to pay `20,000/- by way of compensation with an interest @ 9% p.a. on the amount of compensation awarded along with cost of `5000/-. It was further directed by the District Consumer Disputes Redressal Forum that the above order shall be obeyed within 60 days from the date of receipt of the order, failing which appellant shall be liable to pay an additional penal interest @ 3% p.a. from the date of agreed possession i.e. from 10/05/2002 till complete satisfaction. This order was passed against the appellant ex-parte. Thereafter, it appears that the original complainant/ respondent had preferred an application to the District Consumer Disputes Redressal Forum seeking modification in the order. That application was entertained being MA/1/2006 and in the said misc. application, further order was passed by the said District Consumer Disputes Redressal Forum on 10/01/2006. By allowing the said misc. application. District Consumer Disputes Redressal Forum after maintaining the earlier order passed on 02/01/2006, further added following portion in the final order.
“Opponent nos.1&2 shall deliver possession of additional 100 sq.ft. carpet area in Shri Vrunda Co-op. Housing Society, Naupada, Thane to the complainants.”
3. It appears that thereafter the orders were placed under execution by the complainants /respondents by filing an execution application no.24/2006. After the service of the notice in said execution application, the appellant/original opponent came to know the orders and, therefore, appellant filed Revision application no.29/2008 on 29/04/2008. However, it appears that after hearing the Ld.counsel Mr.Patwardhan for the petitioner, said revision application was allowed to be withdrawn. It appears from the order passed by the State Commission that in revision application which was filed against execution application, the orders passed in consumer complaint were not challenged but the execution was challenged. But having found that the initial orders passed in the complaint are binding and since there is no appeal under section 15, the said revision application was allowed to be withdrawn in order to avoid further complication and, thus, by order dated 24/07/2008, said revision application was withdrawn. Thereafter, original orders passed in consumer complaint no.138/2005 are being challenged by filing the present appeal on 31/07/2008. What we find that within 5 days after withdrawal of revision application, appeal has been filed. However, since the revision application was as against the order passed in execution matter, the appellant has calculated the delay from the date of the order and having found that there is delay of 721 days, appellant along with appeal has filed delay condonation application bearing no.MA/2008/1488. This application along with appeal is before us. Before we consider the matter on merit, we would like to record the statement made by Mr.Patwardhan. Mr.Patwardhan categorically states that the initial order passed by the District Consumer Disputes Redressal Forum on 02/01/2006 is not being disputed and challenged in this proceeding. He further states that the amounts as directed in the order dated 02/01/2006 have been already paid in the execution application, which is pending before the District Consumer Disputes Redressal Forum and, therefore, he is not desirous of challenging the initial order dated 02/01/2006. In view of the statement made by the Ld.counsel, appeal as against the order dated 02/01/2006 in consumer complaint no.138/2005 is concerned, stands disposed of.
4. However, Mr.Patwardhan maintains that the order passed in MA/01/2006 on 10/01/2006 as a result of which the order dated 02/01/2006 was modified by adding following clause “Opponent nos.1&2 shall deliver possession of additional 100 sq.ft. carpet area in Shri Vrunda Co-op. Housing Society, Naupada, Thane to the complainants” is under challenge and validity and legality of the said order requires to be considered in the present matter.
5. Ld.counsel who appears for the opponent disputes satisfaction of the order dated 02/01/2006, though he admits that certain amounts have been paid in the District Consumer Disputes Redressal Forum. What we find that satisfaction of the said order is a matter, which will be finally considered by the District Consumer Disputes Redressal Forum in execution application and we need not ponder upon the said aspect in this appeal. However, since the execution is pending, executing District Forum namely, District Consumer Disputes Redressal Forum, Thane shall consider grievance of both the sides and shall finalize the issue as to whether first order dated 02/01/2006 is satisfied or not. If the District Consumer Disputes Redressal Forum finds that the amounts have been paid by the appellant as per initial directions, then, the said execution can be disposed of.
In this appeal what is to be noted that in the initial proceeding, appellant may be ex-parte. What is interesting to note that second order which modified the initial order, appears to have been passed on 10/01/2006 in M.A.no.1/2006. Mr.Patwardhan-Advocate submits that misc. application was submitted on 10/01/2006 and without issuing notice, the said order has been passed on the same day by the District Consumer Disputes Redressal Forum. To contradict this version, Ld.counsel for the respondent submitted that MA/1/2006 was submitted immediately on 02/01/2006 and the order was passed on 10/01/2006. There is nothing on record to demonstrate that the misc.application was submitted on 02/01/2006 and both the parties have not filed original application of misc.application no.MA/01/2006. However, let the fact as it is and the contention as it is. What we find that the order modifying earlier order has been passed by the District Consumer Disputes Redressal Forum in so proximity with the order dated 02/01/2006 that service on appellant was impossible and, therefore, there is substance in the contentions raised by Mr.Patwardhan that the said order passed in MA/01/2006 is without giving opportunity and without effecting service on the opponent.
Second ground which Mr.Patwardhan has raised before us is that once the complaint has been decided by the District Consumer Disputes Redressal Forum, then the District Consumer Disputes Redressal Forum becomes functious officio so as to modify the said order. He submitted that the party if aggrieved by that order may prefer an appeal but the District Consumer Disputes Redressal Forum is not having any power to modify the said order. He invited our attention that the order has been modified by the District Consumer Disputes Redressal Forum under section 152 of the Civil Procedure Code and, thus, he submitted these inherent powers available to the Civil Court cannot be effected and exercised by the Consumer Fora since Consumer Fora are statutory authorities. We asked other side. Other side had no proper reply to it and they fairly conceded that powers under section 152 are not available to the Consumer Fora. What we like to place on record that the Consumer Fora are not Civil Courts governed under the Civil Procedure Code. A limited application of the Civil Procedure Code is permitted in view of the provisions of section 13(4) of the Act. It is further to be noted that the Regulation no.26 which has been framed by the National Commission in 2005, specifically mandates that the Consumer Fora and the advocates and the parties shall try to avoid the application of Civil Procedure Code in proceeding before the Consumer Fora. It has been clarified that the Civil Procedure Code shall be applicable only in respect of areas which have been provided by the Act, Rules and the Regulations. However, we do not find any provision in Act, Rules and Regulations, which permit Consumer Fora to invoke power under sections 151 & 152 of Civil Procedure Code.
It is further to be noted that the Full bench judgement of the Supreme Court delivered in Civil Appeal No.4307 of 2007 Rajeev Hitendra Pathak & others v/s. Achyut Kashinath Karekar and another with Civil Appeal no.8155 of 2001 M.O.H.Leathers v/s. United Commercial Bank on 19th August, 2011, while considering the power of the District Consumer Disputes Redressal Fora to recall the ex parte orders, or to exercise power of review and power to restore; it has been specifically observed that the Consumer Fora are the creatures of the Statute and unless and until Statute vests power, Consumer Fora cannot invoke power under Civil Procedure Code. Now, therefore, it is settled position that unless and until the Act, Rules and Regulations provides for application of a particular provision of Civil Procedure Code. Said power cannot be invoked and, therefore, order which has been passed by the District Consumer Disputes Redressal Forum by invoking powers u/sec.151 & 152 of Civil Procedure Code is not sustainable in law and requires to be considered.
Apart from that, by the amended order additional delivery of possession of 100 sq.ft. carpet area has been granted. That cannot be a subject matter of sections 151 & 152, specially, section 152 of the C.P.C. and from that angle also said order is not sustainable in law. What we find that the order which is under challenge is absolutely bad and not sustainable in law and requires to be set aside.
Having found that the order in appeal is not sustainable in law, we have to consider whether delay is to be condoned in this matter. What we find though initial orders were ex-parte, however, those ex-parte orders have been accepted by the appellant and they are not subject matter of the present appeal. However, order under appeal was never passed after giving opportunity to the other side, namely, appellant. They got knowledge of said order when they appeared in execution and appellant challenged those orders by filing revision. It appears from the order dated 24/07/2008 passed in revision that there was discussion that the initial order was not challenged and, therefore, it cannot be challenged in revision. Therefore, revision was withdrawn and within 5 days thereafter appeal was filed. Therefore, order which is not in knowledge and which was passed without following common principle of audi alteram partem cannot be said to have been known to the party so as to infer that there is delay on the part of the appellant. What we find that in the present facts and circumstances, delay is required to be condoned and it is accordingly condoned. Therefore, we pass following order:-
ORDER
Misc.application no.1488/2008 for delay condonation is allowed and, thereby, delay in filing appeal is hereby condoned. Appeal is partly allowed. This appeal so far as order dated 02/01/2006 is concerned stands disposed in view of statement made by Mr.Patwardhan –Advocate and referred to in body of this order. The appeal is allowed so far as order modifying the order dated 02/01/2006 is concerned. The order passed in Misc.Application no.MA/1/2006 dated 10/01/2006 is hereby quashed and set aside. The pending execution shall proceed in the light of this order and observations made in the order.
Pronounced on 29th September, 2011.
