1.         This revision is directed against the order of the State Commission West Bengal dated 12.06.2014 in First Appeal No. 885 of 2012 whereby the State Commission dismissed the miscellaneous application no.317 of 2014 moved on behalf of the petitioner / opposite party.

2.         Shorn off the unnecessary details, the necessary facts for the disposal of this revision petition are that the respondent no.2 herein /  complainant filed a consumer complaint against the petitioners / opposite parties as also respondents no.3 & 4, before the District Forum Unit I Kolkata,  alleging deficiency in service on their part.   The consumer complaint was allowed by the District Forum and following directions were issued:

“”That the petition of complaint is allowed on contest with cost against OP Nos. 1 & 2 and ex parte with cost against OP No.3 & 4. All OPs are jointly and/or severally directed to pay a sum of Rs.75000/- (Rupees seventy five thousand) only towards compensation for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 45 days from the date of communication of this order i.e. an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.”

3.         Being aggrieved of the order of the District Forum, the petitioner preferred an appeal before the State Commission being FA No.885//2012.  The State Commission directed issue of notice to the respondents including the complainant.  As the respondent complainant could not be served by an ordinary process, the State Commission on hearing dated 16.05.2013 acceeded to the request of the petitioner and directed as under:

“Appellant is present through Ld. Advocate.  On the prayer being made by Ld. Advocate.  Appellant is permitted to cause paper publication in respect of respondent no. 1 & 3 in a widely circulated daily English newspaper after getting it approved from the office of this Commission fixing 22.08.2013 for filing paper publication”.

4.         The petitioner, however, failed to take steps for service on respondent no. 1 & 3 by publication.  Thus on 22.08.2013 on the request of learned counsel for the appellant petitioner, the matter was adjourned for 13.12.2014 for substituted service by publication.

5.         The appellant petitioner instead of complying the above noted orders of the State Commission moved Miscellaneous Application No.. 317/2014 seeking modification of said orders on the plea that there was no provision in the Consumer Protection Act ( in short, the Act) authorizing the consumer foras to effect service by way of publication.

6.         Miscellaneous Application preferred by the petitioner appellant was dismissed vide impugned order.  This has led to filing of the revision petition.

7.         Learned counsel for the petitioner has taken us through Section 28A of the Act and contended that the above noted section deals with service of notice etc. and there is nothing in Section 28A authorizing either District Consumer Forum, State Commission or National Commission to effect service of notice on a party by resorting to substituted service. Thus, the impugned order of the State Commission declining to modify the direction of service of notice by publication is without jurisdiction. As such, it is liable to be set aside.  In support of his contention, learned counsel for the petitioner has referred to the judgment of the Supreme Court in the matter of Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karkar & Anr. 2011 (9) SCC 541.

8.         The contention of learned counsel for the petitioner is misconceived and amounts to abuse of process of law.  In order to appreciate the contention of learned counsel for the petitioner, it would be useful to have a look on as to how the State Commission has dealt with the above contention of the petitioner.  Relevant portion of the impugned order is, therefore, reproduced thus:

“It appears from the S/R that the registered envelope in respect of Respondent No.1 returned with the remark “Not known” and against Respondent No.3 with the remark “Gone away”. In such view of the matter vide order dated 16/05/13 on the prayer made by the Learned Counsel, Appellant was permitted to cause paper publication in respect of Respondent Nos.1 and 3 in a widely circulated English daily after getting it approved from the office of this Commission fixing 22/08/13 for filing paper publication. On 22/08/13 on the prayer of the Learned Counsel for the Appellants the next date was fixed on 13/12/13 for filing paper publication. On 13/12/13 on the prayer of the Ld. Advocate for the Appellants another date was fixed on 20/03/14. On the said date the Learned Counsel for the Appellants submitted that he would file necessary Miscellaneous Application praying for reconsideration of the order for causing paper publication. Thereafter the instant Miscellaneous Application bearing no.317 of 2014 was filed. In view of the decision of the Hon'ble Apex Court in the case of Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. (supra), we are of the considered view that this Commission has no jurisdiction to review the earlier order passed on 16/05/13.”

9.         On reading of the above, it is clear that order for substituted service of respondent no.1 & 3 was passed by the State Commission because the registered notice sent to respondent no.1 was received back with postal remarks “not known” and the registered notice of respondent no.3 was received back undelivered with the remark “gone away”.  From the above postal remarks, it is clear that respondent no.1 & 3 detailed in the appeal were not residing at the addresses on which the notices were sent.  Thus, under the circumstances, there could be no other way to serve those respondents except by way of substituted service by publication. Undisputedly, the State Commission is a quassi judicial authority.  Therefore, it is expected to follow the principles of natural justice. Audi Alteram Partem is the basic component of natural justice which means that no party should  be condemned unheard.   The State Commission, therefore in our view by directing service of notice by publication was adhering to principles of natural justice.  Therefore, impugned order cannot be termed as without jurisdiction or suffering from any illegality.  Otherwise also, Section 13 (4) of the Act touches upon the powers of the District Forum while dealing with consumer complaint and reads as under:

                  “13. Procedure on admission of complaint

(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:—

(i)   the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii)  the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v)  issuing  of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed.” 

10.       On reading of the above,  it is clear that the District Forum has same powers as vested in Civil  Court under the Code of Civil Procedure  while trying a civil suit in respect of summoning and enforcing attendance of any defendant.  Section 18 of the Act provides that provisions of  Section 12 to 14 and the rules thereunder for the disposal of complaints by the District Forum with necessary modifications shall be applicable to disposal of disputes by the State Commission. Thus, it is clear that State Commission has powers of Civil Court for summoning and enforcing attendance of the respondent.

11.       Order V of the Code of Civil Procedure deals with the procedure of Issue and Service of summons.  Order V Rule 20 provides for a situation in which the substituted service can be effected on a party.   Order V Rule 20 (1) reads as under:

“”Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit.

(1A)     Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

12.       On reading of the above, it is clear that when a Court is satisfied that there are reasons to believe that the defendant cannot be served in ordinary way, it can resort to substituted service by way of affixation or by publication in newspaper circulated in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or worked for gain.

13.       In the instant case, it is clear from the record that State Commission has directed substituted service for publication only after summons sent by ordinary process received back with the remarks that respondent no.1 & 3 were not available at the given address and that too on the request of the petitioner / opposite party.  Thus, we do not find any infirmity in the impugned order which may call for any interference in exercise of the revisional jurisdiction..

14.       Revision petition is, therefore, dismissed.