RAJEEV HITENDRA PATHAK Vs ACHYUT KASHINATH KAREKAR
Bench: DALVEER BHANDARI,MUKUNDAKAM SHARMA,ANIL R. DAVE, ,
Case number: C.A. No.-004307-004307 / 2007
Diary number: 792 / 2006
Advocates: V. D. KHANNA Vs
RAVINDRA KESHAVRAO ADSURE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307 OF 2007
Rajeev Hitendra Pathak & Others ... Appellants
Versus
Achyut Kashinath Karekar & Another ... Respondents
WITH
CIVIL APPEAL NO.8155 OF 2001
M.O.H. Leathers ... Appellants
Versus
United Commercial Bank ... Respondents
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:
CIVIL APPEAL NO.4307 OF 2007
5. Smita Achyut Karekar was admitted to Ashirwad Nursing
Home as she was suffering from the ailment of slip disc. 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
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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.
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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
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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
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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
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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;
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(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
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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.
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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,
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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
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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……..”
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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.
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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:
13. (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.
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(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,
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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
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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.
CIVIL APPEAL NO.8155 OF 2001
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)
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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.
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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.
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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.
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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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