Rajeev
Hitendra Pathan & Ors Vs. Achyut Kashinath Karekar & Anr [2007] Insc 939
(17 September 2007)
Dr.
Arijit Pasayat & Lokeshwar Singh Panta
CIVIL
APPEAL NO. 4307 OF 2007 (Arising out of SLP (C) No. 2967 of 2006) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by the National Consumer
Disputes Redressal Commission, New Delhi (in short 'National Commission')
holding that the State Commission has the power to restore the complaint which
was dismissed for default. For coming to the aforesaid conclusion the National
Commission relied upon the decision of this Court in New India Assurance Co.
Ltd. v. R. Srinivasan (2000 (3) SCC 242).
3.
Learned counsel for the appellant submitted that the view contrary to what has
been stated in New India Assurance's case (supra) has been taken in Jyotsana Arvindkumar
Shah and Ors. v. Bombay Hospital Trust (1999 (4) SCC 325). Further, Consumer Protection Act,
1986 (in short the 'Act') was amended in 2003 and by the newly introduced
Section 22A, National Commission was given power of restoration but no such
power has been conferred on the State Commission.
4.
Learned Counsel for the respondents on the other hand submitted that the
National Commission has referred the case to the factual position and,
therefore, held that restoration was permissible.
5. In Jyotsana's
case (supra) it was observed at para 7 as follows:
"We
heard learned Counsel on both sides for quite some time. When we asked the
learned Counsel appearing for the respondent to point out the provision in the
Act which enables the State Commission to set aside the reasoned order passed,
though ex parte, he could not lay his hands on any of the provisions in the
Act.
As a
matter of fact, before the State Commission the appellants brought to its
notice the two orders, one passed by the Bihar State Commission in Chief
Manager, UCO Bank v. Ram Govind Agarwal 1996 (1) CPR 351 and the other passed
by the National Commission in Director, Forest Research Institute v. Sunshine
Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power
to recall or review their ex parte order.
The
State Commission had distinguished the above said orders on the ground that in
those two cases the opponents had not only not appeared but also failed to put
in their written statements. In other words, in the case on hand, according to
the State Commission, the opponent (respondent) having filed the written
statements, the failure to consider the same by the State Commission before passing
the order would be a valid ground for setting aside the ex parte order. The
State Commission, however, fell into an error in not bearing in mind that the
Act under which it is functioning has not provided it with any jurisdiction to
set aside the ex parte reasoned order. It is also seen from the order of the
State Commission that it was influenced by the concluding portion of the
judgment of the Bombay High Court to the effect that the respondent (writ
petitioner) could approach the appellate authority or make an appropriate
application before the State Commission for setting aside the ex parte order,
if permissible under the law. Here again, the State Commission failed to
appreciate that the observation of the High Court would help the respondent, if
permissible under the law. If the law does not permit the respondent to move
the application for setting aside the ex parte order, which appears to be the
position, the order of the State Commission setting aside the ex parte order
cannot be sustained. As stated earlier, there is no dispute that there is no
provision in the Act enabling the State Commission to set aside an ex parte
order."
6.
Subsequently, in New India Assurance's case (supra) this Court appears to have
taken a different view as it is evident from what has been stated in paragraph
18, the same reads as follows:
"We
only intend to invoke the spirit of the principle behind the above dictum in
support of our view that every court or judicial body or authority, which has a
duty to decide a lis between two parties, inherently possesses the power to
dismiss a case in default. Where a case is called up for hearing and the party
is not present, the court or the judicial or quasi judicial body is under no
obligation to keep the matter pending before it or to pursue the matter on
behalf of the complainant who had instituted the proceedings. That is not the
function of the court or, for that matter of a judicial or quasi judicial body.
In the absence of the complainant, therefore, the court will be well within its
jurisdiction to dismiss the complaint, for non-prosecution. So also, it would
have the inherent power and jurisdiction to restore the complaint on good cause
being shown for the non-appearance of the complainant."
7. In
the latter case i.e. New India Assurance's case (supra) reference was not made
to the earlier decision in Jyotsana's case (supra). Further the effect of the
amendment to the Act in 2003 whereby Section 22(A) was introduced has the
effect of conferment of power of restoration on National Commission, but not to
the State Commission. In view of the divergence of views expressed by
coordinate Benches, we refer the matter to a larger Bench to consider the
question whether the State Commission has the power to recall the ex parte
order.
Records
be placed before the Hon'ble Chief Justice of India for appropriate orders.
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