Civil Appeal No.4307 OF 2007 (Arising out of SLP (C) No. 2967 of 2006)
Dr. Arijit Pasayat, J.- Leave granted
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
"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
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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