STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Rahul Joshi, S/o Sh. J.C. Joshi, R/o H. No. 1051-B, Sector -16, Panchkula, Haryana.

….Applicant/complainant.

Versus

1. Unitech Ltd., (Real Estate Division-Marketing), Ground Floor, Signature Tower, South City-I, NH-8, Gurgaon, Haryana through its CEO Mr. Ramesh Chandra.

2. Vikram Datta- Vice President, Sales and Marketing, Unitech Ltd., Ground Floor, Signature Tower, South City-I, NH-8, Gurgaon, Haryana.

3. Unitech Ltd., SCO No.-189-91, 1st Floor, Sector 17C, Chandigarh, U.T., through its Regional Manager

4. Housing Development Finance Corporation Ltd., SCO­-153-155, Sector 8C, Madhya Marg, Chandigarh through its    Rajeev Sardana

5. Akhil Bhanot, C/O Mega Marketing, SCO No.73, 1st Floor, Sector 46/ C, Chandigarh

.... Non-Applicant/Opposite Parties

Application under order IX Rule 9 read with Section 151 of the Civil Procedure Code for restoration.

BEFORE:       JUSTICE SHAM SUNDER, PRESIDENT.

                     MRS. NEENA SANDHU, MEMBER.

Argued by:      Sh. Babbar Bhan, Advocate for the applicant/complainant.

PER  JUSTICE SHAM SUNDER, PRESIDENT.

1.             This application, under order IX Rule 9 read with Section 151 of the Civil Procedure Code, for restoration of the Consumer Complaint, dismissed in default, of appearance of the complainant, and for want of prosecution, by this Commission, vide order dated 16.05.2012, has been filed by the applicant/complainant.

2.             According to the Counsel for the applicant/complainant, Complaint Case No.3 of 2012, was listed on 26.04.2012, for filing of reply, on behalf of Opposite Parties No.1, 3 and 4 as Opposite Parties No.2 and 5, were already proceeded against ex-parte. Reply, on behalf of Opposite Parties No.l,3 and 4, was filed and the case/matter, was adjourned to 16.05.2012. It was stated that the associate Counsel appeared for the complainant, and inadvertently noted down the next date of hearing in the case/matter as 16.06.2012, on the brief, as well as in the case diary. It was further stated that the aforesaid lapse came to the notice of the Counsel, on receipt of the order dated 16.05.2012, whereupon, it transpired that the case/matter had been dismissed in default and also for want of prosecution with the observations that even on 04.04.2012 and 26.04.2012, only the proxy Counsel had put in appearance, and it appeared that the complainant was not interested in prosecuting the complaint. It was further stated that the absence of the complainant/Counsel was neither intentional nor deliberate. Accordingly, the prayer, referred to above, was made.

3.             We have heard the Counsel for the applicant/ complainant, and have gone through the record of the case carefully.

4.             By virtue of the instant application, the      applicant/ complainant, has sought the review/recall of order dated 16.05.2012, vide which, the Consumer Complaint, in question, was dismissed in default  of appearance of the complainant, and for want of prosecution, by this Commission. The Counsel for the applicant/complainant could not point out, any provision, under the Consumer Protection Act, 1986, empowering the State Consumer Disputes Redressal Commission, to review/recall its own order, like the one, passed in this case. In Rajeev Hitendra Pathak and others vs Achyut Kashinath Karekar and another IV(2011)CPJ 35(SC), a case decided by a three judge Bench of the Apex Court, the facts were that the State Consumer Disputes Redressal Commission, Maharashtra, issued notice of the complaint, filed before it, to the Opposite Parties. On 9.9.2004, the State Commission dismissed the complaint, for want of prosecution. On 4.11.2004, the complainants, filed an application, for recalling the order dated 9.9.2004. The State Consumer Disputes Redressal Commission recalled the order dated 9.9.2004, and restored the complaint.  Feeling aggrieved, the OPs filed a revision-petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed by it.  Still feeling aggrieved, the appellants/OPs filed  Civil Appeal No.4307 of 2007  in the Apex Court.  The Apex Court in Rajeev Hitendra Pathak and others’s case (supra), held that, on careful analysis of the provisions of the Act, it is abundantly clear, that the Tribunals are creatures of Statute and derive their power from the express provisions of the same (Statute). The District Consumer Disputes Redressal Forums, and the State Consumer Disputes Redressal Commissions, have not been empowered, to set aside the exparte orders, and review/recall the same. The powers, which have not been expressly given, by the Statute, cannot be exercised by them. Ultimately, Appeal No.4307 of 2007 was  accepted by the Apex Court, and the findings of the National Consumer Disputes Redressal Commission, holding that the State Consumer Disputes Redressal Commission, was empowered to  review/recall  its own order, were set aside. The principle of law, laid down in Rajeev Hitendra Pathak and others’s case (supra), is fully applicable, to the facts of the instant case. This Commission is bound, by the principle of law, laid down, in the aforesaid case, by the Apex Court. Since, this Commission, has no power to review/recall or set aside its order, the present application, for review/recall of order dated 16.05.2012 vide which, the Consumer Complaint of the complainant, was dismissed in default of appearance and for want of prosecution, is not maintainable, before it.  The application is, thus, liable to be dismissed, on this ground alone. 

5.             For the reasons recorded above, the application, seeking restoration of the complaint, dismissed in default, vide order dated 16.05.2012, is dismissed, being not maintainable. 

6.             Certified Copies of this order, be sent to the parties, free of charge.

7.             The file be consigned to Record Room, after completion

Pronounced.

July 5, 2012

Sd/-

 [JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

 [NEENA SANDHU]

MEMBER

Rg