Both parties are present through their respective Ld. Advocates.

Today is fixed for hearing on the MA/69/2022. The Ld. Counsel for the complainant has filed W/O against the said MA. We take the hearing on the said MA and its disposal.

It is stated by the OP 1 in the application that the matter was fixed for appearance by the OP 1 on 15.03.2021, but due to prevalent situation of Covid – 19, Pandemic and due to mis-posting in the diary of the conducting of the Ld. Advocate for the OP the Ld. Advocate for the OP was unable to appear before this Ld. Commission and took proper steps. Due to inadvertent mistake by the clerk of the conducting of the Ld. Advocate for the OP such unintentional laches has been cropped up on behalf of the OP. The OP was unable to visit the office premises as it was totally sealed as containment zone. So the clerk of the Ld. Advocate was unable to enter the said office premises for which he could not intimate the conducting Ld. Advocate for the OP regarding the matter, fixed on 15.03.2022. On the said date the Ld. Commission was pleased to fix the matter for exparte hearing against the OPs, which mentioned in the order dated 15.03.2021. Thereafter the Ld. Commission was pleased to give opportunity to the complainant for adducing evidence. According to the OPs such mistake was not intentional. Due to pandemic situation the OPs could not take any proper step at the relevant point of time by filing this application. The OPs have prayed for vacating the exparte order dated 15.03.2021 and to give the opportunity to the OPs for filing W/V in the instant complaint. According to the OPs if this application is not allowed they will suffer irreparable loss and injury and prayer is made by the OPs for allowing this application.

The application has been contested by the complainant by way of filing W/O, whereas it is stated by the complainant that his application is devoid of any merit and the same is liable to be dismissed with exemplary cost.

We have carefully perused the content of the application and objection thereto and heard argument at length as advanced by the Ld. Counsel for the both parties. Record speaks that after admission hearing of this complaint on 04.01.2021 notices were issued to the OPs and the next date was fixed for S/R and appearance of the OP on 15.03.2021. In the said notice, direction was given to the OPs to submit W/V within 30 days from the date of receipt of the notice. On 15.03.2021 none was present on behalf of the OPs, though the Ld. Advocate for the complainant was present and filed track report. Fromwhere it is evident that the OPs have duly received the notices but remained absent. Due to non- expiry of the statutory period for filing W/V by the OPs, date was given to the OPs for filing W/V on 12.04.2021. On 12.04.2021 the Ld. Counsel for the complainant was present but no W/V was forthcoming from the end of the OPs. Therefore, having no other alternative this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs, scope was given to the complainant for adducing evidence. Ultimately on 20.01.2022 the complainant by filing application has prayed for adoption of the petition of complaint as his evidence. Prayer was allowed. 04.04.2022 was fixed for hearing argument. In the meantime the OPs have filed the instant application praying for vacating the exparte order passed by this Ld. Commission.

In this respect we are to mention to the Reportable Judgement passed by the Hon’ble Supreme Court, reported in (2011) 9 SCC 541, passed in the Civil Appeals No. 4307/2007 with 8155/2011, decided on 19.08.2011, in the case of Rajeev Hitendra Pathak and Others Vs. Achyut Kashinath Karekar  and Another. In the said judgement Their Lordships have held in the paragraph – 34 which runs as follows :-

“…………. 34. On a careful analysis of the provision 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 the power which have not been expressly given by the statute cannot be exercised

…………… 35. 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. ”

Having regard to the above mentioned judgement passed by the Hon’ble Supreme Court, we are of the view that as the power has not been vested to this Ld. Commission by the legislature and in the Consumer Protection Act, 2019/1986 does not mention, hence we do not have any power to set aside in our order passed by this Ld. Commission.

Going by the foregoing discussion hence it is ordered that the MA69/2022 is hereby dismissed on contest. Considering the facts and circumstances of the application, there is no other as to cost.

27.07.2022 is fixed for hearing argument.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER