15.01.2015 - A petition for condoning the delay of about 15 days in filing this appeal, has been filed on behalf of the appellant.
On being satisfied with the grounds, the delay in filing this appeal is condoned.
2. This appeal has been filed against the order dated 15.5.2014 passed in C.C. No. 43 of 2012 by Learned District Consumer Forum, Ranchi, dismissing the Complaint Case on the ground that there is no specific provision for restoration of the case dismissed for default.
3. Learned Counsel for the Complainant submitted that the said Complaint Case was dismissed for default for not filing evidence on oath on behalf of the complainant due to communication gap between the complainant and his counsel. No order was passed on merit, and therefore the complaint should have been restored, under the inherent power, in the interest of justice.
4. Mr. Basav Chatterjee learned counsel appearing for the respondent supported the impugned order saying that there is no provision to recall an order. He relied on IV (2011) CPJ 35 (SC) Rajeev Hitendra Pathak etc.
5. Regarding an ex-parte reasoned order passed on merit, in the judgement reported in ( 1999) 4 SCC 325 Jyotsana Arbind Kumar Shah, the Hon’ble Supreme Court held that the State Commission did not have power to review or recall its ex-parte order.
In the judgement reported in A.I.R. 2001 SC 1084 Jayalaksmi Coelho etc., the Hon’ble Supreme Court observed in paragraph 15 that “As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under section 151,C.P.C may or may not strictly apply to any particular proceeding.”
In the Judgement reported in (2000) 3 SCC 242 New India Assurance Co. Ltd. etc. the fact situation was different. After a complaint was dismissed for default and was not restored, a second complaint was filed. It was held that second complaint was maintainable on showing sufficient cause regarding dismissal of the earlier complaint for default. It was further observed that however if a complainant repeatedly filed complaint for harassing the other side, the Forum could dismiss it on the ground of abuse of process of law. But then it was also observed that “So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown. ………” .
In the judgement of Rajiv Hitendra Pathak ( Supra), it was held that the decision in Jyotsana case laid down the correct law and the view taken in the later decision in the case of New India Assurance Company (supra) was untenable and could not be sustained. However, restoration of the complaint dismissed for default was upheld.
In the similar circumstances, this Forum restored a complaint dismissed for default, on showing sufficient cause, vide judgement dated 17.9.2014 passed in F.A. No. 41/2013 Radha Khandelwal etc.
6. Thus, the legal position can be summarized as follows. If a reasoned ex-parte order is passed, the District and State Forum has no jurisdiction to recall or review such order; but if a case is dismissed for default, it can be restored on showing sufficient cause, on such terms and conditions as may deem fit and proper to the Forum, in exercise of the inherent powers, in the interest of justice.
7. In this case, the complaint was dismissed for default on 20.4.2013 for not filing evidence on oath inspite of giving last chance to the Complainant. No order was passed on merit of the case. The explanation that, due to the communication gap between the complainant and this counsel, he could not file evidence, has not been either disputed by the Insurance Company, nor rejected by learned Lower Forum.
9. In the circumstances the impugned order is set aside and the C.C. No. 43 of 2012 is restored to its original file.
The complainant is directed to file evidence on oath within six weeks from today. The parties are directed to appear before the lower Forum at 11 A.M. on 19th January, 2015. The learned lower Forum thereafter will proceed in accordance with law.
Let a copy of this order be sent to all the District Forums.
With these observations and directions this appeal stands disposed off.
Ranchi
Dated-15-01-2015
