ASHOK KUMAR vs Subhash Chand

WHETHER the ex-parte proceedings taken against the appellant (resulting in a substantial adverse order against him) by the District Forum, Hisar, are sustainable is the primal threshold question in this appeal.

IN the light of the ultimate view which we are inclined to take in favour of the appellant, it is unnecessary to delve deeply into the facts or merits. It sufficies to mention that the respondent-complainant Shri Subhash Chander had engaged the services of the appellant for Rs. 1,000/- for preparing a video film of the various ceremonies of his marriage performed on the 27th April, 1990. The appellant delivered the film cassette to the complainant and received the contracted amount therefor. However, it was the case of the complainant that on screening the same on the V.C.R. it was discovered that only 10 minutes of the initial stages and half an hour of the last ceremonies of marriage appeared to be recorded and there was a wide gap or jump of more than two hours omitting some of the important ceremonies and highlights of the wedding. On this ground the complainant had claimed a sum of Rs. 50,000/- for the alleged callousness and negligence of the appellant The order of the District Forum states that a notice was issued to the appellant on the 10th of May, 1990 for submitting his reply for 4th June, 1990, but he had not cared to come forward and was hence proceeded ex-parte. Relying on the uncontested allegations of the complainant and further recording that the gravity of the matter had been made more serious by the respondent-appellant due to his non-cooperation, a sum of Rs. 6,000/- was awarded as compensation to the complainant vide order dated 18th of July, 1990. Agrieved by the same, the present appeal has been filed.

The firm and categorical stand taken on behalf of the appellant is that he has, in fact, never served with any notice personally nor had he refused to receive any summons from the Hon''ble District Forum and at no stage was he in the know of any proceedings initiated against him till he received the copy of the order on the 29th July, 1990. Learned counsel for the appellant has pin-pointed a number of factors to establish that the appellant was wholly in the dark about the proceedings against him and there was consequently no justification, whatsoever, for the resultant ex parte order passed therein.

WHAT first meets the eye in this context is the fact that immediately on the receipt of the order the appellant moved an application before the District Forum, Hisar, expressly averring by way of verification that he was never served with any notice, nor he had ever refused to receive any summons, nor he was in the know of any proceedings initiated against him. It would appear that this application was not placed before the District Forum as such and the Hon''ble President simply recorded a summary order thereon in the following terms : - "Presented today. Order has already been issued. There is no provision to set aside order. Advised to file appeal. sd/ A.S. Chalia 27.8.90" We are somewhat sceptical of the aforesaid view taken by the Hon''ble President of the District Forum and indeed are inclined to opine that the application of the appellant deserved to be considered by all the members of the Forum in order to decide the ticklish issue in some depth with regard to the existence of the power of the District Forum to set aside ex parte proceedings or otherwise in the event of it being proved that the aggrieved party had not been served at all. It is true that there is no express provision in the Consumer Protection Act and the Rules framed there under for setting aside an ex parte order. Equally, perhaps the provision of Order IX, Rules 13 and 14 of the Civil Procedure Code may not in strictitude be applicable. Nevertheless, on principle, we see no inflexible or conclusive bar with regard to the power of the District Forum to act in this context. The learned Counsel for the appellant had of course urged forcefully that the District Forum had every right and indeed a duty to consider and decide whether the appellant had been served in the proceedings or not and according to him the principles of natural justice mandated it to do so. However, since no appearance has been put in on behalf of the respondent despite due service in this appeal (and consequently we do not have the benefit of hearing the opposite side), and the matter is one which is not entirely free from difficulty, we do not propose to express any considered or final decision. However, there is no gainsaying the fact that if the stand of the learned Counsel for the appellant was to be correct, the appellant has been denied a remedy available to him at the threshold stage before the District Forum itself.

THE spearhead of the argument of the learned Counsel for the appellant is that there is nothing on the record of this case to even show that any notice to the appellant was duly despatched by registered post. THE order of the District Forum does not mention the date and the receipt number under which the notice was allegedly sent, but even the most meticulous examination of the record maintained by the District Forum does not show any registered post office receipt on its file. Counsel was thus on firm ground that in the absence of any documentary record whatsoever and in particular the purported post office receipt pertaining to the despatch of the notice, not the least, adverse presumption can be raised against the appellant of having received or refused any notice. To fully satisfy ourselves on this point, we adjourned the matter and an express enquiry was made from the District Forum whether there was any other file or record in connection with this case apart from the one duly forwarded in the present appeal. In its reply the Forum has clearly stated that there is no other file or record in the Forum. In the light of these facts Mr. Jaswant Jain is on a firm ground that in the total absence of the purported post office receipt it is wholly in doubt whether any notice was despatched and consequently no presumption whatsoever adverse to the appellant can possibly be raised. We are inclined to the view that the submission is meritorious. Apart from the above, the Counsel for the appellant has highlighted the fact that admittedly the purported notice sent to the appellant was not by registered acknowledgement due and consequently there is no semblance of proof whatsoever to indicate that the same had been received by the addressee. Relying on the letter or, in any case, on the spirit of Rule 19-A of Order 5 of the Civil Procedure Code the stand of the Counsel was that the notice must necessarily have been sent by registered post acknowledgement due and this having not been done the mandatory procedure has not been followed. In any case, there is nothing on the present record to rebut the categorical averments of the appellant that he was not served and further that he was not in the know of the proceedings at all. THE submissions of the learned Counsel in this context are not also without substance. Mr. Jaswant Jain had then contended that on the record there is indeed no order of the Forum holding that the appellant had been served and ex parte proceedings be taken against him. It is pointed out that the office nothings mentioned that the opposite party had not given any reply to the notice and had submitted the same for further orders, but the District Forum nowhere recorded its satisfaction that the opposite party had been duly served and consequently ex parte proceedings be ordered against him. Though the contention of the appellant may be somewhat meticulous, but the fact remains that barring a solitary reference in the order under appeal, there is nothing on the record expressly directing ex parte proceedings on the firm ground that the opposite party had refused to appear despite due service. Yet again, it appears somewhat curious from the record that barring the alleged single notice in the subsequent proceedings, the express orders were to the complainant only with regard to the hearing of the 13th July, 1990 at Hisar. Again, when the Counsel for the complainant on that day had been asked to produce the report of the file on the 18th July, 1990, it was without notice to the opposite party. What equally deserves notice is the fact that as required in the Rules, notice of this appeal was issued to the opposite party and the same was duly received and the written submissions thereto were filed through Shri B.L. Bishnoi, Advocate, Hisar. However, despite this no one on behalf of the respondent-complainant has chosen to put in appearance. The appeal was listed on a number of occasions on the 5th, 13th and 26th of November, 1990 and the position remained identical. It is thus patent that on the respondent''s side nobody has come forward to rebut the categorical stand and averments of the appellant that he was neither served nor was he in any way aware of the proceedings against him before the District Forum.

IN view of the aforesaid factors we are constrained to hold that the appellant has been able to establish that he was not served at all and consequently was wholly unaware of the complaint against him. INevitably, the ex parte proceedings taken against him were not justified and are not sustainable. The order of the Forum has, therefore, regretfully to be set aside and the matter is remanded for a fresh decision on merits. The parties are directed to appear before the District Forum on 10th of January, 1991. Order remanded.