Civil Revn. Petn. No.1289 of 2003

9th July, 2004

Petitioner Counsel: D. SHIVAKUMARAN
Respondent Counsel: N. THIAGARAJAN

Cases Cited:
Indian Bank Vs. District Consumer Disputes Redressal Forum, Madras, (1996-1)7 MWN (CP) 258 [Para 3]
Jyotsana Arvindkumar Shah Vs. Bombay Hospital Trust, (1999)4 SCC 325 [Para 5]

JUDGMENT

JUDGMENT :- This Civil Revision Petition has been filed by the first respondent in M.C.O.P. No.65 of 2001 on the file of the Dindigul District Consumers Disputes Redressal Forum, Dindigul thereby testifying the validity of the docket order dated 15-7-2003 passed by the said Forum thereby returning a petition filed to set aside the ex parte decretal order on ground that there is no provision under the Consumer Protection Act, 1986 a set aside the ex-parte order further directing the petitioner to move the regular appeal before the State Consumer Dispute Redressal Commission, Chennai.

2. On the part of the petitioner, she would urge that the District Consumer Redressal Forum does have the power to set aside the ex-parte decree, which is an incidental proceeding arising therefrom. The learned counsel appearing on behalf of the petitioner would point out that the District Consumer Redressal Forum is vested with the powers of a Civil Court while trying the complaint and that the proceedings before the District Consumer Redressal Forum are deemed to be the judicial proceedings and therefore the District Consumer Redressal Forum ought to have exercised the power of setting aside the ex-parte order in the instant case instead of rejecting the petition.

3. The learned counsel for the petitioner would also cite a judgment of this Court delivered in Indian Bank Vs. District Consumer Disputes Redressal Forum, Madras reported in (1996-1)7 MWN (CP) 258 wherein the learned single Judge has observed :

"When the Consumer Protection Forum has got the power to decide a complaint ex parte under Rules 8(8) and 8(9) of the Rules, it automatically implies that it has got power to set aside an ex parte order. The District Consumer Forum and the State Consumer Forum have got powers to entertain the applications to set aside ex-parte orders and decide the same on merits .... Though there is no express provision in the Act or the Rules framed thereunder giving the Forum jurisdiction to do so, it is well known rule of statutory construction that the Forum should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions for the purpose of rendering justice between the parties.... The Forum should be considered as possessed with such ancillary or incidental powers unless there is any indication in the statute to the contrary. No statutory prohibition is found in the Act or the rules made thereunder."

On such observations, the learned single Judge has ordered the District Forum to take the ex-parte set aside petition on file and decide it on merits, affording opportunities to both parties.

4. Citing the said judgment, the learned counsel for the petitioner would pray to allow the above civil revision petition.

5. On the contrary, on the part of the contesting first respondent, a judgment of the Honourable Apex Court delivered in Jyotsana Arvindkumar Shah Vs. Bombay Hospital Trust reported in (1999)4 SCC 325 would be cited wherein when the State Consumer Redressal Commission had set aside an ex-parte order, the Honourable Apex Court has observed :

"The State Commission 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 ..... 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..... there is no provision in the Act enabling the State Commission to set aside an ex-parte order ......."

6. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, if this Court has to arrive at a valid decision regarding the above legal question 'whether the District Consumer Redressal Forum is having jurisdiction to set aside its previous ex-parte order', the same could be decided based on the legal provisions providing for such an order to be passed either expressly or impliedly.

7. Though the learned single Judge of this Court has expressed his view that the moment the Forum has got the power to decide a complaint ex parte, within the provisions of the Rules, it automatically implies that it has got powers to set aside the ex parte order also. Just contrarily, the Honourable Apex Court has held that 'no such powers could be wielded by the Forum since there is no provision enabling the State Commission to set aside the ex-parte order passed by itself. It only means that it does not have jurisdiction to pass an order of that sort, which is impermissible in law'.

8. No mention need be made that what is ruled regarding the powers of the State Commission by the Honourable Apex Court applies to the District Forum also. Therefore, following the legal proposition propounded by the Honourable Apex Court, which has held, in no uncertain terms, that such an act of setting aside the ex-parte decretal order by the State Commission, is nothing but an act without jurisdiction, the above civil revision petition has to be dismissed as without merits.

In result, (i) the above civil revision petition does not merit acceptance and the same is dismissed.

(ii) The order dated 15-7-2003 made in M.C.O.P. No.65 of 2001 by the Dindigul District Consumers Disputes Redressal Forum, Dindigul is hereby confirmed.

No costs.

Consequently, C.M.P. No.1437 of 2003 is also dismissed.

Revision dismissed.