HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- Challenge is to the order No. 3 dated 07.06.2023 passed by the Learned Addl. (District) Consumer Disputes Redressal Commission, Rajarhat at New Town ( in short, ‘the Addl. District Commission’) in connection with consumer case No. CC/53/2023 thereby a case was fixed for ex parte hearing against the opposite party Nos. 1 & 2.
- The respondent No. 1 as complainant instituted a complaint case being No. CC/53/2023 against the revisionist and others under section 35 read with section 37 & 38 of the Consumer Protection Act, 2019.
- The revisionist / opposite party No. 1 entered appearance in this case but no written version was filed within the statutory period of time. As such, the petition filed by the revisionist / opposite party No. 1 praying for time to file the written version was rejected by the order impugned.
- Being aggrieved by and dissatisfied with the said order the revisionist has preferred this revision petition.
- Now, the question is whether the impugned order should be sustained.
- The Learned Advocate appearing for the revisionist has urged that the Learned Commission below failed to appreciate the facts and circumstances of the case. The Learned Commission below was wrong in not accepting the written version including the subsequent judgment of the upper Commission. Learned Commission below exceeded its jurisdiction which was not vested in it by law. So, the revisional application should be allowed and the impugned order should be set aside.
- Having heard the Learned Advocate appearing for the revisionist and on perusal of the record it appears to us that after filing of the present complaint case, the said complaint case was admitted by the Learned District Commission. Notice was duly issued upon the revisionist and others and the opposite parties were directed to file written version within 30 days from the date of receipt of the notice / notices.
- It appears to us that the revisionist / opposite party No. 1 received the notice on 24.04.2023. It also appears to us that though the direction was given to file written version within 30 days from the date of receipt of the notices, the revisionist / opposite party No. 1 did not file the written version within the said statutory period. Since, the statutory period of limitation has already been expired, the case was proceeded ex parte against the revisionist and others.
- The controversy is squarely covered by the judgment of the Hon’ble Supreme Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another ) wherein it was 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.”
- 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.
- Accordingly, the revisional application is dismissed in limini with a cost of Rs.5,000/- to be paid by the revisionist in favour of the SCWF.
- The revisionist / opposite party No. 1 is directed to deposit such cost before this Commission within 15 days from the date of passing of this order and to show the money receipt before the Learned District Commission. The District Commission is directed to proceed with the complaint case and decide the same without granting any unnecessary adjournments to either of the parties.
- The revision petition is thus disposed of accordingly.
