Learned counsel for the petitioner is present. None appears for O.P.no.1. SR not back against O.P.nos.2 and 3. 30 days have elapsed from service of summon against O.P.nos.2 and 3.So service of summon against O.P. nos.2 and 3 is held to be sufficient.
2. Heard the learned counsel for the petitioner.
3. Learned counsel for the petitionersubmitted thaton 30.09.2022 they appeared and asked for time to file written version because they have received the summon on 10.09.2022 as per tracking report but time was not allowed and they were set ex parte even if 30 days or 45 days was not over by the time from the date of receipt of the summon. Further, she submitted that on 28.10.2022 on advance memo filed by the petitioner the record was advanced on that day. The advocate for present petitioner/OP No. 1 in complaint case appeared and undertakes to file vakalatnama for the parties, also they filed a petition to recall the order dated 30.09.2022 and allow them to file written version. But the learned District Commission did neither allowed them to submit written version nor considered the petition to recall the order dated 30.09.2022 on the ground that 45 days was over to file written version. So she submitted that although 45 days was not over as on 30.9.2022, the learned District Commission passed order by setting the OPs ex parte even if the O.Ps appeared on 30.09.2022 which is clear from the order. Therefore, she submitted to interfere with the impugned orders dated 30.9.2022 and 28.10.2022 passed by the learned District Commission.
4. Considered the submission of learned counsel for the parties. Perused impugned order and other materials on record. The order dated 30.09.2022 and 28.10.2022 are placed below for reference:-
“xxx xxx xxx
30.09.2022
Learned counsel for the complainant files hazira. Ld counsel for O.p.no.1to4 has filed petition for time for filing of written version & vakalatnama. Time rejected. O.P has not filed version & vakalatnama,already time over. Hence O.ps are set exparte. Call on 03.11.2022 for exparte hearing.
“28.10.2022
Learned Counsel for claiming to be the counsel O.ps no.1 to 4 has filed an advance petition by virtue of which the case record is put up today. The said learned counsel has also filed a petition to set aside the order dated 30.09.2022 along with a tracking report.Perused the case and the documents as available therein. It is noticed that the said learned counsel who is claiming to be appearing for the opposite parties no.1,2,3 and 4 has not yet filed any vakaltnama for them. The opposite parties are found to be absent on repeated calls. More so, even if, taken into consideration the tracking report as filed, the said opposite parties had received the notice on 10.09.2022. After calculation, as per the provision U/s 38(2)(a) of the C.P.Act,2019 a maximum of 45 days at best could have been allowed to the O.ps no.1 to 4 for filing their written version which had already expired on 25.10.2022. Thus in no way the O.ps no.1,2,3 and 4 are entitled to get further time. Accordingly, the petition as filed is rejected. The said O.Ps no.1,2,3 & 4 are set exparte.
Put up on the date fixed.”
5. In the aforesaid impugned order, it appears that the Tracking report has been accepted by the learned District Commission to show that the O.Ps have received the notice on 10.09.2022. U/S 38(2)(a) of C.P.Act,2019 30 days should not be over for filing of written version and further extended same can be for another 15 days, but on 30.09.2022 when the present petitioner/OP No.1in the complaint case appeared and asked for time to file written version, without any reason the prayer was rejected. Thus the learned District Commission declined the O.P. to file written version. However, on 28.10.2022 again request is made that also rejected onthe ground that 45 days was over. It must be remembered that the parties must be given opportunity of being heard and the statute permits to file written version within 45 days from the date of receipt of notice. Further, from the impugned order it appears that on 30.09.2022 the O.Ps were set exparte and also again on 28.10.2022 the O.Ps were set ex parte. The propriety of orders should have judicial flavour.However,we find that learned District Commission has failed to exercise the jurisdiction as endowed by the C.P.Act, 2019 which can be set right by setting aside the impugned order dated 30.9.2022. Consequently, impugned order dated 30.9.2022 is set aside. Accordingly, impugned order dated 28.10.2022 is set aside. It appears that written version is filed. In such peculiar facts and circumstances the learned District Commission is directed to accept the written version and proceed with complaint case by disposing the case within 60 days from the date of receipt of copy of this order. Petitioner is directed to appear before learned District Commission on 4.4.2023 to take further instruction.
6. The revision petition is disposed of accordingly.
