Rajeev Hitendra
Pathak & Others Vs. Achyut Kashinath Karekar & Another
M.O.H. Leathers Vs. United
Commercial Bank
J U D G M E N T
Dalveer Bhandari, J.
1.
These
appeals emanate from the order dated 16.11.2005 in Revision Petition No.551 of
2005 and order dated 12.7.2001 in Miscellaneous Petition No.1 of 2001 in Original
Petition No.110 of 1993 passed by the National Consumer Disputes Redressal
Commission, New Delhi.
2.
The
main question which arises for consideration is whether the District Consumer Forums
and the State Commissions have the power to set aside their own ex parte orders
or in other words have the power to recall or review their own orders?
3.
The
questions of law involved in both the appeals are identical, therefore, we deem
it appropriate to dispose of both these appeals by a common judgment.
4.
Brief
facts necessary to dispose of these appeals are recapitulated as under: Smita
Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from
the ailment of slip disc.
5.
The
operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day,
that her blood vessels had ruptured accidentally during the surgery. She was declared
dead at 5.35 pm.
6.
The
complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent
on 7.8.1999. The complainants filed complaint alleging deficiency in service
and claimed compensation of Rs.15,00,000/-. The complainants did not take necessary
steps to remove objection and to complete procedure under the Consumer
Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite
parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed
the complaint for want of prosecution. On 04.11.2004, the complainants filed an
application for recalling 9.9.2004 order and consequently the State Commission recalled
the order dated 9.9.2004 and restored the complaint.
7.
The
appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005
before the National Consumer Disputes Redressal Commission, New Delhi. The appellants
in the revision petition made two main arguments before the Commission :
firstly, that the State Commission did not have the power to restore the complaint
and, secondly, that the State Commission restored the complaint without issuing
notice to the appellants. The National Commission dismissed the revision
petition which has been challenged by the appellants before this Court.
8.
The
appellants relied on the judgment in the case of Jyotsana Arvind Kumar Shah &
Others v. Bombay Hospital Trust (1999) 4 SCC 325. In this case, the Court held that
the State Commission did not have the power to review or recall its ex parte
order.
9.
In
New India Assurance Co. Ltd. v. R. Srinivasan (2000) 3 SCC 242, this Court took
the contrary view and held that the State Commission could review or recall its
ex parte order.
10.
In
the instant case, a two-Judge Bench of this Court vide judgment and order dated
17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as
under: "5. In Jyotsana's case it was observed at para 7 as follows: "We
heard the 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 Court Master, 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 abovesaid 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
case this Court appears to have taken a different view as it is evident from
what has been stated in para 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 case reference was not made to the earlier decision in
Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby
Section 22A was introduced has the effect of conferment of power of restoration
on the 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."
11.
We
have been called upon to decide whether the State Commission has the power to
recall an ex parte order.
12.
Shri
Siddharth Bhatnagar, learned senior counsel appearing for the appellants in Civil
Appeal No.4307 of 2007 submitted that the Consumer Tribunals set up under the
Consumer Protection Act, 1986 are creatures of that Statute and derive their
powers only from the express provisions of the Statute. He has drawn our
attention to various provisions of the Consumer Protection Act, 1986 to strengthen
his submission. He referred to Section 13(4) of the Consumer Protection Act,
1986 which reads as under: "13 (4) For the purposes of this Section, the
District Forum shall have the same powers as are vested in a Civil Court under the
Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of
the following matters, namely:-
i.
the
summoning and enforcing the attendance of any defendant or witness and
examining the witness on oath;
ii.
the
discovery and production of any document or other material object produced as
evidence;
iii.
the
reception of evidence on affidavits;
iv.
the
requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or from any other relevant source;
v.
issuing
of any commission for the examination of any witness; and
vi.
any
other matter which may be prescribed."
13.
Mr.
Bhatnagar has also drawn our attention to Regulation 26(1) of the Consumer Protection
Regulations, 2005, framed in exercise of powers conferred by Section 30-A of
the Consumer Protection Act, 1986. Regulation 26(1) reads as follows: "26.
Miscellaneous-- (1) In all proceedings before the Consumer Forum, endeavour shall
be made by the parties and their counsel to avoid the use of provisions of Code
of Civil Procedure, 1908 (5 of 1908): Provided that the provisions of the Code of
Civil Procedure, 1908 may be applied which have been referred to in the Act or in
the rules made thereunder."
14.
Mr.
Bhatnagar submitted that only very few provisions of the Code of Civil
Procedure have been made applicable to the proceedings before the District Forums
and the State Commissions under Section 18 of the Consumer Protection Act, which
applies Sections 13 and 14 to the State Commission and the National Commission (under
Section 22(1) are those under Section 13(4)). He relied on the judgment of this
Court in Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 to strengthen
his argument that the consumer tribunals can derive powers only from the
express provisions in the Statute. In the said case, the Court observed as
under: "44. A careful reading of the above discloses that there is no
power under the Act to grant any interim relief of (sic or) even an ad interim
relief. Only a final relief could be granted. If the jurisdiction of the Forum
to grant relief is confined to the four clauses mentioned under Section 14, it passes
our comprehension as to how an interim injunction could ever be granted
disregarding even the balance of convenience."
15.
Mr.
Bhatnagar also placed reliance on another judgment of this Court in Gulzari Lal
Agarwal v. Accounts Officer (1996) 10 SCC 590. In this case, the Court relied on
earlier judgment of this Court in the case of Morgan Stanley Mutual Fund and observed
that the Consumer Forum has no jurisdiction or power to pass any interim order pending
disposal of the original complaint filed before it.
16.
Mr.
Bhatnagar relied on Section 17 of the Act which deals with the jurisdiction of
the State Commission. Sections 17-A and 17-B were added by the 2002 Amendment of
the Act dealing with the "Transfer of Cases" and "Circuit Benches"
respectively. The objects and reasons for introducing the said provisions by
way of the said amendment were as follows: "Objects and Reasons-- Clause 15
(old) seeks to insert a new Section 17-A to empower the State Commission to transfer
a case from one District Forum to another District Forum within the State if required
for the ends of justice. It also seeks to insert another new Section 17-B to
enable the State Commissions to hold Circuit Benches."
17.
Mr.
Bhatnagar also relied on Section 22 of the Act, which deals with the power and procedure
of the National Commission. Before the 2002 Amendment, the said provision was
as follows: "22. Power of and procedure applicable to the National Commission--
The National Commission shall, in the disposal of any complaints or any proceedings
before it, have-- a) the powers of a Civil Courts as specified in Sub-Sections
(4), (5) and (6) of Section 13; b) the power to issue an order to the opposite party
directing him to do any one or more of the things referred to in clauses (a) to
(i) of Sub-Section (1) of Section 14, and follow such procedure as may be
prescribed by the Central Government."
18.
After
the 2002 Amendment, Section 22 of the Act now reads as follows: "22. Power
and procedure applicable to the National Commission -- (1) The provisions of Sections
12, 13 and 14 and the rules made thereunder for the disposal of complaints by the
District Forum shall, with such modifications as may be considered necessary by
the Commission, be applicable to the disposal of disputes by the National
Commission. (2) Without prejudice to the provisions contained in Sub-Section (1),
the National Commission shall have the power to review any order made by it, when
there is an error apparent on the face of record."
19.
The
2002 Amendment also introduced Section 22A which reads as follows: "22A. Power
to set aside ex parte orders.-Where an order is passed by the National Commission
ex parte against the opposite party or a complainant, as the case may be, the
aggrieved party may apply to the Commission to set aside the said order in the interest
of justice."
20.
Mr.
Bhatnagar contended that Section 22(2) was introduced in 2002 to give the
National Commission the power to review its own order. This power could not
have been used by the Commission before the amendment. After amendment, now the
Commission has specific power to set aside an ex parte order. This power has only
been given to the National Commission and not extended to the District Forums or
the State Commissions. If the legislature intended to give this power to the State
Commissions and District Forums then it would have extended the same to those
forums also.
21.
Mr.
Bhatnagar has also drawn our attention to the objects and reasons for carrying out
the amendment which reads as follows: "Objects and Reasons-- Clause 21 (old)
seeks to substitute Section 22 so that the provisions of Sections 12, 13 and 14
and the rules made thereunder for the disposal of complaints by the District Forum,
shall, with such modifications as may be considered necessary by the Commission,
be applicable to the disposal of disputes by the National Commission. It also
seeks to empower the National Commission to review any order made by it when there
is an error apparent on the face of record. These provisions will make the powers
and procedures in respect of the National Commission more explicit. It also seeks
to insert new Sections 22-A, 22-B and 22-C and 22-D. New Section 22-A empowers
the National Commission to set aside ex parte orders against the opposite party
or complainant in the interest of justice........"
22.
Mr.
Bhatnagar submitted that the limited applicability of the provisions of the Civil
Procedure Code to the Tribunals under the Act is under Section 13(4) of the Act.
There is no power of review or recall under the said provision. Even under
Section 13(4)(vi), no Rule has been framed in terms of Section 30(1) by the Central
Government which provides power to review or recall of orders.
23.
Learned
senior counsel for the appellants also relied on M/s Eureka Estates (P) Ltd. v.
A.P. State Consumer Disputes Redressal Commission and Others AIR 2005 AP 118 in
which the Court observed that the District Forums and the State Commissions are
entitled to exercise only such powers which are specifically vested in them under
the Act and the Rules.
24.
Mr.
Bhatnagar submitted that it is evident from the Statement of Objects and
Reasons of the Act that the purpose of the Act is to provide speedy and simple redressal
to consumer disputes. It is for this reason that all the provisions of the Civil
Procedure Code have not been extended to the Consumer Forums.
25.
Mr.
Bhatnagar further submitted that the salutary object of speedy and simple redressal
under the Act is to be found inter alia in Sections 13(2) and (3) of the Act
which provide for the procedure to be adopted by the forum in deciding the
complaints admitted by it. The said provisions read as follows:(2) The District
Forum shall, if the complaints admitted by it under Section 12 relates to goods
in respect of which the procedure specified in Sub- Section (1) cannot be followed,
or if the complaint relates to any services,--
a. refer a copy of such complaint
to the opposite party directing him to give his version of the case within a period
of thirty days or such extended period not exceeding fifteen days as may be granted
by the District Forum;
b. where the opposite
party, on receipt of a copy of the complaint, referred to him under clause (a) denies
or disputes the allegations contained in the complaint, or omits or fails to
take any action to represent his case within the time given by the District
Forum, the District Forum shall proceed to settle the consumer dispute,-- (i) on
the basis of evidence brought to its notice by the complainant and the opposite
party, where the opposite party denies or disputes the allegations contained in
the complaint, or (ii) ex parte on the basis of evidence brought to its notice by
the complainant where the opposite party omits or fails to take any action to represent
his case within the time given by the Forum.
c. where the complainant
fails to appear on the date of hearing before the District Forum, the District Forum
may either dismiss the complaint for default or decide it on merits. (3) No proceedings
complying with the procedure laid down in Sub-Sections (1) and (2) shall be
called in question in any court on the ground that the principles of natural
justice have not been complied with."
26.
Mr.
Bhatnagar also relied on Section 12(3) of the Act which reads as follows: "12(3)
On receipt of a complaint made under Sub-Section (1), the District Forum may, by
order, allow the complaint to be proceeded with or rejected: Provided that a complaint
shall not be rejected under this Sub-Section unless an opportunity of being
heard has been given to the complainant: Provided further that the admissibility
of the complaint shall ordinarily be decided within twenty- one days from the
date on which the complaint was received."
27.
Mr.
Bhatnagar tried to explain the legislative intent behind introducing Section
22-A. According to him, only the National Commission has been given power to set
aside ex parte orders and the same power has not been extended to the District
Forums or the State Commissions because against the orders of the District Forums
and the State Commissions, appeal or revision can be filed before the State Commission
and the National Commission respectively. But in the case of the orders of the National
Commission, prior to the amendment, the parties were compelled to approach this
Court even against the orders by which the cases were dismissed in default. It
became extremely expensive and time consuming. In this view of the matter, it
became imperative to give this power to the National Commission.
28.
According
to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did
not notice the earlier decision in Jyotsana's case. He submitted that the
Tribunals constituted under the Consumer Protection Act, 1986 exercise only
such powers as are expressly conferred by the provisions of the said Act and Rules
framed thereunder. Since no power of review and recall was conferred on the
District Forums and the State Commissions, they can exercise no such power.
29.
The
counter affidavit was filed by the respondents stating that the Commission was
justified in setting aside the ex parte order and restoring the respondents'
complaint. The counter affidavit also states that the respondents cannot be deprived
of their right without contest on the basis of trivial technicalities.
30.
The
respondents relied upon the judgment of this Court in New India Assurance Co. Ltd.
in which this Court held that the Consumer Courts have inherent powers to
restore the complaints dismissed for default. It is also stated in the counter affidavit
that due to old age, respondent no.1 lost track of the case and therefore, the State
Commission was justified in setting aside the ex parte order in order to ensure
that justice is done to the parties.
31.
In
Civil Appeal No.8155 of 2001, the National Commission passed an ex parte order and
in the appeal against the order, this Court gave liberty to the appellants to
approach the Commission for setting aside the ex parte order. Thereafter, an application
was filed by the complainants for review of the order. The Commission vide order
dated 12.7.2001 (relied on the judgment of Jyotsana's case) dismissed the application.
Aggrieved by the said order, the appellant has filed this appeal.
32.
Mr.
M.S. Ganesh, learned senior counsel appearing on behalf of the appellants in Civil
Appeal No.8155 of 2001 submitted that the National Commission has implied and
inherent power to recall the order dated 30.5.1996 passed in Original Petition
No.110 of 1993.
33.
Mr.
Ganesh also submitted that the notice of hearing sent by the National Commission
was never served on the counsel for the appellants yet the National Commission
proceeded to an ex parte decision on the appellants' complaint and dismissed it
on the ground of limitation.
34.
According
to Mr. Ganesh, the decision in Jyotsana's case is manifestly per incuriam. It
does not even refer to the doctrine of implied powers and was not aware of its
applicability. The later decision in New India Assurance Co. Ltd. is expressly
mindful of the doctrine. He submitted that an external aid to the interpretation
of the Consumer Protection Act, 1986 also reinforces the above construction of
the Act.
35.
We
have carefully scrutinized the provisions of the Consumer Protection Act, 1986.
We have also carefully analyzed the submissions and the cases cited by the learned
counsel for the parties.
36.
On
careful analysis of the provisions 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 power of review and the powers
which have not been expressly given by the Statute cannot be exercised.
37.
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.
38.
In
our considered opinion, the decision in Jyotsana's case laid down the correct
law and the view taken in the later decision of this Court in New India Assurance
Co. Ltd. is untenable and cannot be sustained.
39.
In
view of the legal position, in Civil Appeal No.4307 of 2007, the findings of
the National Commission are set aside as far as it has held that the State Commission
can review its own orders. After the amendment in Section 22 and introduction of
Section 22A in the Act in the year 2002 by which the power of review or recall has
vested with the National Commission only. However, we agree with the findings of
the National Commission holding that the Complaint No.473 of 1999 be restored to
its original number for hearing in accordance with law.
40.
There
has been considerable delay in disposal of the complaint. Therefore, we direct the
State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal
No.4307 of 2007] as expeditiously as possible and in any event within three months
from the date of the communication of this order.
41.
Similarly,
in Civil Appeal No.8155 of 2001, we set aside the impugned order and direct the
National Commission to dispose of the Original Petition No.110 of 2003 de novo as
expeditiously as possible and in any event within three months from the date of
the communication of this order.
42.
Both
the appeals are disposed of accordingly. The parties are directed to bear their
own costs.
...............................J.
(Dalveer Bhandari)
...............................J.
(Mukundakam Sharma)
...............................J.
(Anil R. Dave)
New
Delhi;
August
19, 2011
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