HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This revision petition has been filed by the revisionist / petitioner / opposite party against the order No. 7 dated 22/04/2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit – III (South) (in short, ‘the District Commission’) in connection with complaint case being No. CC/457/2023 whereby the Learned District Commission was pleased to proceed with the case ex parte against the opposite party No. 1 / revisionist.
- The revisionist has made the following prayer :-
“In the circumstances it is most humbly prayed that this Honourable Commission may be graciously pleased to allow the instant Revision and set aside the impugned order dated 22.04.2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata – Unit III, in connection with the complaint Case being No. CC/457/2023, in the interests of justice, otherwise your petitioner/the O.P. No – 1 being the Revisionist herein shall suffer irreparable loss and injury.”
- The only issue in this revision relates to foreclosure of rights of the opposite party to file written version. The case of the parties, therefore, needs not be discussed.
- Heard the Learned Advocate appearing for the revisionist and carefully perused the revision petition and relevant documents. The Learned Advocate appearing for the revisionist has prayed for setting aside the impugned order No. 7 dated 22/04/2024. In the issue of filing written version law is very categorical.
- 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 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.
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”.
6. 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.
7. 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.
- 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.”
9. This revision petition has been filed with a delay of 10 days. The revisionist has explained the cause of delay in paragraph No. 4 of the application for condonation of delay. The reason for delay in filing revisional application is that the opposite party No. 1 / revisionist / petitioner was sick. On perusal of the record and the said application for condonation of delay I find that no medical certificate has been filed to prove that due to sickness of the opposite party No. 1 there is some delay in filing the instant revision petition. Therefore, I hold that cause shown is not sufficient.
10. In view of my above discussion, the impugned order passed by the Learned District Commission is within the jurisdiction and this is not bad in law. There is no scope to interfere with the impugned order.
11. Accordingly, the revisional application is dismissed in limine. Considering the facts and circumstances, there will be no order as to costs.
12. The District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of the order passed by this Commission.
13. Let a copy of this order be sent down to the Learned District Commission at once.
