W.P. (C) No.37468 of 2004

4th August, 2008

Petitioner Counsel: A. KUMAR
Respondent Counsel: RAJAN P. KALLIYATH, SATHISH MURTY , Smt. SREEKALA KRISHNADAS

Cases Cited:
New India Assurance Company Limited Vs. R. Srinivasan, 2000(3) SCC 242 [Para PARA4,6,9]
Rajeev Hitendra Pathan Vs. Achyut Kashinath Karekar, 2007(7) SCC 667 [Para PARA4,9]
Hirday Narain Vs. Income Tax Officer, Bareilly, AIR 1971 SC 33 [Para PARA4,12]
Thressiamma Vs. Union of India, 1999(2) KLT 683 [Para PARA4,13]
Jyotsana Aravindkumar Shah Vs. Bombay Hospital Trust, 1999(4) SCC 325 [Para PARA6,7]
St. Joseph's Hospital Vs. Jimmy, 2001(2) KLT 514 [Para PARA9]
Harish Chandra Vs. The New India Assurance Co. Ltd., 2008(2) CPR 249 [Para PARA9]
Kishor Kumar Khaitan Vs. Praveenkumar Singh, (2006)3 SCC 312 [Para PARA11]
M/s. Baburam Prakash Chandra Maheswari Vs. Antarim Zila Parishad, AIR 1969 SC 55 [Para PARA6 13]

JUDGMENT

-Whether a Consumer Redressal Forum has power to restore a complaint which was dismissed for default, and if not, whether a petition under Article 226 or 227 of Constitution of India would lie, challenging the order dismissing an application filed for restoration of the complaint.

2. Petitioner filed a complaint before District Consumer Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It was dismissed for default on 18.5.2004. Petitioner filed I.A. 414 of 2004 (Ext.P-2) to restore the complaint. In Ext.P-2 petition, petitioner contended that he was ready to proceed with the complaint and had filed an affidavit in lieu of chief-examination and on 18.5.2004 he was ready to give evidence and was instructed by his counsel to answer the roll call and inform the Forum that he is ready to give evidence but unfortunately due to his inexperience, he missed the roll call and only after arrival of the counsel at 12 a.m. when enquiries were made, it was realised that the complaint was dismissed for default. It was contended that this fact was brought to the notice of District Forum on the afternoon session and dismissal of the complaint was not due to his negligence or wilful laches and therefore it is to be restored. Under Ext.P-3 order, the petition was dismissed for the reason that case of the petitioner that he was present in Court on 18.5.2004 and that fact was brought to the notice of the Forum cannot be accepted as the order sheet does not reflect the same and as no sufficient reason was shown to restore the complaint, complaint cannot be restored. This petition is filed under Articles 226 and 227 of Constitution of India to quash Ext.P-3 order contending that as the dismissal was not due to the negligence or wilful laches on the part of the petitioner, District Consumer Redressal Forum should have restored the complaint and considered the complaint on merit, after affording opportunity to the petitioner and therefore the order is to be quashed and complaint is to be restored.

3. Learned counsel appearing for petitioner and first respondent Insurance Company were heard.

4. Learned counsel appearing for petitioner argued that though there is no specific provision for restoration of a complaint dismissed for default, District Consumer Redressal Forum has inherent jurisdiction to restore a complaint dismissed for default. Reliance was placed on the decision of the Apex Court in New India Assurance Company Limited Vs. R. Srinivasan (2000(3) SCC 242). It was pointed out that in view of the conflicting decisions a subsequent Bench of the Apex Court, in Rajeev Hitendra Pathan & others Vs. Achyut Kashinath Karekar & another (2007(7) SCC 667), referred the question to a larger Bench. The learned counsel argued that in view of the subsequent decision of the Supreme Court and the reference made to larger Bench, it is to be found that District Consumer Redressal Forum has jurisdiction to restore a complaint to file which was earlier dismissed for default. Learned counsel also argued that even if it is found that the petitioner could have challenged the order by filing an appeal or revision, as the writ petition was admitted and is pending before this Court from 2004 onwards, it may not be thrown out compelling petitioner to approach another Forum at this belated stage. Reliance was placed on the decision of the Apex Court in Hirday Narain Vs. Income Tax Officer, Bareilly (AIR 1971 SC 33) and Thressiamma Vs. Union of India (1999(2) KLT 683).

5. Learned counsel appearing for first respondent argued that when under amended Section 22-A of Consumer Protection Act, the National Commission was given power to set aside an ex parte order, such power was not given either to the State Commission or to the District Consumer Redressal Forum and therefore District Redressal Forum has no jurisdiction to set aside its own order, even if it is an order dismissing the complaint for default. Learned counsel pointed out that Section 15 of the Consumer Protection Act provides for an appeal against an order passed by the District Forum and under Section 13(2)(b) of the Act, the District Forum has jurisdiction to dismiss a complaint on the failure of the complainant to appear and pass an order ex parte on the basis of the evidence brought in by the complainant, eventhough the opposite party omits or fails to take action to represent the case before the District Forum and therefore an order passed ex parte dismissing the complaint is an appealable order as provided under Section 15. It was also pointed out that as provided under Section 17(1)(b) of the Act, State Commission has jurisdiction to call for records and pass appropriate orders in any consumer dispute, which is pending or has been decided by a District Forum within the State, if it appears to the State Commission that District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity and if so petitioner is entitled to file a revision, challenging the order dismissing the application filed by him, before the State Commission and therefore Article 226 or 227 of Constitution of India not maintainable.

6. Section 13 of the Consumer Protection Act (hereinafter referred to as the Act) provides the procedure to be complied by the District Forum on admitting a complaint. Sub-clauses (i) and (ii) of clause (b) of sub-section (2) of Section 13 of the Act empowers the District Forum either to dismiss a complaint for default or to pass an ex parte order against respondents based on the evidence of the complainant. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed for default or to set aside the ex parte order passed under Section 13(2)(b) of the Act. This omission cannot be ignored. Section 22-A of the Act was inserted by the Consumer Protection Amendment Act (Act 62 of 2002) empowering the National Commission to set aside an ex parte order. Section 22-A provides that where an order is passed by the National Commission ex parte against the opposite party or a complainant, the aggrieved party may apply to the National Commission to set aside the said order in the interest of justice. Even when such a power was granted to the National Commission by the Amendment Act, such a power was not given either to the District Forum or the State Forum. It is also important to take note of the fact that Amendment Act 62 of 2002 was introduced subsequent to the decision of the Apex Court in Jyotsana Aravindkumar Shah Vs. Bombay Hospital Trust (1999(4) SCC 325) and also the decision in New India Assurance Company Limited Vs. Srinivasan's case (supra).

7. In Jyotsana Aravindakumar Shah's case (supra) the power of the State Commission to set aside an ex parte order was considered by the Apex Court. It was held that so long as there is no provision in the Act enabling the State Commission to set aside an ex parte order, it cannot set aside an ex parte order. Their Lordships held :

"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."

8. The argument of the learned counsel appearing for petitioner is that in view of the subsequent decision it is to be found that though the Act does not provide the power, Court has the inherent power to set aside an ex parte order.

9. The question considered by the Apex Court in New India Assurance Company Limited Vs. Sreenivasan (supra) as is clear from paragraph 5 of the judgment was whether in view of dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would lie and whether it ought to have been dismissed as not maintainable. Their Lordships considered the power of Consumer Redressal Forum under Section 13 and held that powers which are available to a Civil Court under Code of Civil Procedure are made available to District Forum in respect of matters enumerated in sub-section (4) of Section 13 and provisions of Order 9 are not made applicable. Their Lordships then held:-

"10). We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of order 9 will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the courts to extend that provision to the proceedings under the Act."

After laying down that it would be permissible to file a second complaint, explaining why the earlier complaint could not be pursued and was dismissed for default, it was held:-

"18). 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."

It is relying on this paragraph learned counsel appearing for petitioner argued that the Consumer Redressal Forum has the power to restore complaint which was dismissed for non-appearance of the complainant. The learned counsel pointed out that taking note of the earlier decision in Jyotsana Aravindkumar Shah's case where a contrary view was taken, a subsequent Bench of the Apex Court in Rajeev Hitendra Pathan Vs. Achyut Kashinath Karekar (2007(7) SCC 667) has referred the question to a larger Bench and therefore it is to be found that Consumer Redressal Forum has the power to restore a complaint which was dismissed for default. In Rajeev Hitendra Pathan's case (supra) taking note of paragraph 18 of the judgment in New India Assurance case (supra) it was held:

"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 22-A 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 co-ordinate 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."

Hence it cannot be said that Apex Court has held that District Forum has jurisdiction to restore a complaint dismissed for default. The learned counsel appearing for the petitioner relied on the decision of a learned Single Judge of this Court and submitted that it was held that District Forum has the power to set aside the ex parte order. In St. Joseph's Hospital Vs. Jimmy (2001(2) KLT 514) the learned Single Judge also held that power to set aside the ex parte order under Order 9 was not given to the District Forum. True, relying on New India Assurance case it was observed that District Forum has inherent power to restore the complaint dismissed for default. But that was not the question decided in the said case. The National Consumer Disputes Redressal Commission in Harish Chandra Vs. The New India Assurance Co. Ltd. (2008(2) CPR 249) also held that Section 17 of the Consumer Protection Act does not empower a State Commission to review or recall its own final order or a complaint.

10. As stated earlier, when provisions of Order 9 of Code of Civil Procedure was not made applicable to the Consumer Redressal Forum under Section 13 and only other provisions are made applicable, Consumer Redressal Forum has no power to restore a complaint dismissed for default to file. It is more so when sub-sec.(2)(b) of Section 13 enables the District Forum to dismiss a complaint on failure of the complainant to appear before it. If that be so, it can only be found that petition filed before District Redressal Forum is not maintainable. If so, remedy of the petitioner is to file an appeal challenging the order dismissing the complaint for default as provided under Section 15 of the Act.

11. Though learned counsel for the petitioner relying on the decision of Apex Court in Kishor Kumar Khaitan and another Vs. Praveenkumar Singh ((2006)3 SCC 312) argued that District Consumer Redressal Forum did not properly consider the application to restore the complaint and hence the supervisory jurisdiction of this Court is to be invoked. Facts of that case are different. In that case trial Court found that there was no urgency to grant an ex parte order of injunction and appellate Court in the appeal did not consider the question in the proper manner. It is under such circumstances their Lordships in paragraph 13 held as follows:-

"The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."

12. Though learned counsel for petitioner also relied on the decisions of Apex Court in Hirday Narain Vs. I.T. Officer, Bareilly (AIR 1971 SC 33) in that case it was found that an order under Section 35 of Income-tax Act is not appealable and a revision before the Commissioner of Income Tax is maintainable and on the date when the petition was filed before the High Court the period for moving a revision before the Commissioner had not expired. In such circumstances it was held :

"12). We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on merits."

13. Though reliance was placed on the Division Bench decision of this Court in Thressiamma Vs. Union of India (1999(2) KLT 683) what was held therein was only that existence of an alternate remedy is not a bar to the maintainability of a writ petition, if there is violation of the fundamental rights or violation of any Act or Rules or violation of the principles of natural justice. The Division Bench following the dictum laid down by the Apex Court in M/s. Baburam Prakash Chandra Maheswari Vs. Antarim Zila Parishad (AIR 1969 SC 556) held that if there is violation of the principles of natural justice or violation of any rule or Act, dismissal of writ petition on the ground of alternate remedy is not proper. When under Section 13(2) the District Forum is competent to dismiss a complaint on the failure of complainant to appear, it cannot be said that the dismissal of the complaint was in violation of any rule or Act. When the Act does not empower the District Forum, to restore a complaint to file dismissal of the petition for restoration, whatever be the ground for dismissal, is also not an act in violation of the Act or the Rules. Sub-section (3) of Section 13 specifically provides that "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". Therefore the order cannot be challenged on the ground of violation of principles of natural justice also. Hence fact that writ petition was earlier admitted is also not a ground to quash the order of the District Forum which is legal and regular. In such circumstances, the writ petition is not maintainable. Petitioner is permitted to challenge the order of the Redressal Forum by filing an appeal as provided under Section 15 or a revision as provided under Section 17 of the Act. If the appeal or revision is filed within two weeks from today, the authority shall receive the same and dispose it in accordance with law. Writ petition is dismissed.

Petition dismissed.