AVAS VIKAS PARISHAD vs RAJINDER KUMAR JAIN

THE question that arises in the above mentioned appeals is whether the State Commission has the jurisdiction to pass interim orders for stay of operation of orders passed by the District Forum. He had been granting stay orders so far on the principles indicated in Order 41, Rule 5 Code of Civil Procedure. Section 13 of Consumer Protection Act, defines the extent to which provisions of C.P.C. apply to proceedings under Consumer Protection Act, 1986 (hereinafter to be referred as the Act). It is true that provisions of Order 41, Rule 5 relating to stay of execution decree passed by the District Forum do not find place in Section 13 nevertheless, I was entertaining stay applications and giving interim orders. Recently a decision rendered by the Gujarat Commission reported in 1992 (2) Consumer Protection Reporter page 516, came to my notice. THE Appeal in that case arose out of an interim orders passed by the District Forum and Appeal was filed before the State Commission against that said order. THE main question that arose before the State Commission was whether the District Forum has jurisdiction to pass interim orders even though provisions of Order 39, Rule 1 and 2 C.P.C. were not made applicable by Section 13 of the Act.

IN order to appreciate the points so raised it is necessary to state certain basic principles relating to the nature of orders passed by State Commission and the powers of the State Commission under the Act. A close analysis of the Act indicates that it is a codifying Act. Such Acts are passed not merely to declare the law upon some particular point but to declare in the form of a code the whole law upon some particular subject. It is in-disputable that an order passed under the Act determines the rights of the parties. IN regard to orders passed under the Act. It is clear that such orders are final expression of decision which so far as regards the State Commission conclusively determine the rights of the parties on any of the matter in controversy before the State Commission, Judgment means the statement given by the State Commission of the grounds of an order. it is thus obvious that when an order is passed under the Act a certain amount of sanctity attaches to judgment rendered by the State Commission. The judgment once signed is final and can not be altered. If any person is aggrieved by the order, he may file an Appeal before the State Commission. The question that arises in what is the effect of filing an Appeal before the State Commission re la ting to the order passed by the District Forum. By reference to Section 24 of the Act, it has been contended that the moment an Appeal is filed the order of the District Forum is suspended and does not attain finality unless the Appeal against the order is decided. It is thus contended that the filing of an Appeal before the State Commission results in the automatic stay of the order under challenge. This aspect of the case was argued by counsel for parties from different aspects. The interpretation placed on Section 24 of Act will mean that although an order has been passed adjudicating upon the rights of the parties it would be in a state of animated suspension the moment an Appeal is filed. The interpretation placed by Counsel for the parties will amount to this that on the filing of the Appeal, the order of the District Forum automatically gets suspended. As already observed above an order of the nature contemplated and passed under the Act finally determines the rights of the parties. The judgment rendered by the District Forum states reasons for recording it. The well-established principle relating to finality of decisions is that the order is final and is not open to be challenged or modified except when a clerical or arthmetical error has crept in the order. Having regard to the nature of the order which adjudicates and resolves the controversy between the parties it is apparent that finality attached to the order is not taken away merely by filing of Appeal against the order. It may be pointed out that under the Code of Civil Procedure an order or a decree is final but the operation of the said order or decree may be stayed if conditions contemplated by Order 41, Rule 5 C.P.C. are complied with. The points stated above clearly demonstrate that order passed by the District Forum retains it''s finality unless it is modified or altered by the Appellate Court in exercise of powers under Section 15 of the Act does not say anything more than this, that the order passed by the District Forum is subject to be set aside or modified by the State Commission. It is not possible for me to accede to the contention advanced on behalf of the Appellant that Section 24 carries with it automatic stay of the operation of order under challenge. This argument of Counsel for the Appellant stands completely negatived when we compare the provisions of other statutes. IN all statutes where there is provision for stay, such a power is specifically conferred on the tribunal. It has been conceded by the Appellant that the provisions of stay such as are contemplated in Order 4l, Rule 5 C.P.C. 1908 have not been made applicable to proceedings under the Act. IN this way orders passed by the District Forum which are appealed against to the State Commission do not stand automatically stayed by virtue of Section 24 of the Act. It has to be noted that every tribunal has inherent power to exercise such powers as are necessary for proper exercise of it''s jurisdiction. This view is based upon the principle that power conferred on a tribunal carries with it the existence of all such ancillary powers as are necessary for the tribunal to function in a manner and for purposes contemplated by the Act.

This being the legal position it appears that the State Commission in the exercise of it''s inherent powers may stay the operation of order under challenge before the State Commission in individual cases if it feels satisfied to grant interim relief on such terms and conditions it considers it necessary to exercise its power effectively. Since a large number of Applicants have moved applications for stay and for interim relief, such cases shall come up for consideration before the State Commission. It shall pass such orders as it deems necessary after hearing the Applicant and after examining the circumstances of each case. It may, however, be mentioned that while giving the interim relief the State Commission is entitled to go into prima facie merits of the case also and in case the State Commission is not satisfied on that score it may refuse to grant the relief.

IN the end, I am of the view that orders passed by the District Forum can not be stayed by the State Commission on principles indicated by Order 41, Rule 5 C.P.C. as the said provision does not apply to proceedings under the Act. This position has already been conceded for Applicant. I am further of the view that the order of District Forum if appealed does not automatically get stayed by virtue of Section 24 of the Act.

I am further of the view that it is open to the State Commission, having regard to nature of the case, to entertain or refuse to entertain Application for stay or grant of interim relief, regard being had to the circumstances of the case. The stay applications shall now be listed before the State Commission for orders. ORDER Mr. S.P. Goyal, Member - The date of 26.11.1992 was fixed through a notice for hearing on the matter of considering stay applications against the orders of different District Forums of this State, where appeals have been filed in this State Commission. On the fixed date, Advocates as per list attached appeared before the State Commission. Arguments were put forward exhaustively and at length. 2. A perusal of the Consumer Protection Act 1986 shows that whereas there is no specific provision therein to an effect wherein application for staying the orders of the District Forum, pending decision in the filed appeal, is to be entertained, is to be disposed off and if considered necessary suitable stay or modifying orders to be passed. But at the same time there are no prohibitory provisions wherein the State Commission would have been prohibited from entertaining and/or disposing off the stay applications. As such it becomes essential to firstly look into the aspect of necessity for considering stay application in a particular case and also to consider the desirability of passing suitable orders in the general public interest without any bias to either of the parties. 3. Question of entertaining and disposing off a stay application by the State Commission arises when any of the parties in a case (filed before a District Forum), files an appeal before the State Commission against the judgment of the District Forum and seeks staying of said orders of the District Forum. In this regard Section 24 of the Consumer Protection Act under the heading "Finality of orders" lays down that "every order of a District Forum, if no appeal has been preferred against such order under the provisions of this Act, be final". This specific provisions implies that in case an appeal has been filed before the State Commission against a particular order of the District Forum, that particular order of the District Forum is not to be a "Final Order". It flows, therefrom, that once an appeal has been filed in the State Commission against their that order, the District Forum should not proceed with execution proceedings under Section 25 and/or with penalty proceedings under Section 27 of the Consumer Protection Act 1986. 4. However, in case an appeal has been filed in a State Commission, and inspite of this fact having been convincingly intimated to the District Forum, the District Forum without waiting for a decision in the appeal proceeds with the execution proceedings either under Section 25 or under Section 27 of the Consumer Protection Act 1986, such an action on the part of the District Forum, if proceeded with, will run counter to the provisions of Section 24 of the Consumer Protection Act 1986. It is my considered opinion that at such stages, there arises an unavoidable necessity for filing an application for staying the orders of the District Forum as have been appealed against, and the State Commission under such circumstances should consider the matter and pass suitable orders as may be considered necessary reliefs to complainant "A" and the reliefs include payment of certain amounts as well. In case "B" has filed an appeal in the State Commission against the said order of the District Forum, the said order is not a "Final Order". Filing of the appeal is a continuation of the original complaint matter and in fact is a part of the process of the disposal of the complaint matter under the provisions of the Consumer Protection Act, 1986. When "B" files an appeal in the State Commission against the said order of the District Forum, there is always to be a chance and possibility that the said orders of the District Forum may either be setaside or may be materially modified/altered. In case even after an appeal is filed by "B" in the State Commission and the District Forum overlooks this fact and proceeds with the execution proceedings under Section 25 and/or with the penalty proceedings under Section 27 of the Act, "B" may be placed in a stage wherein his success to be in the appeal may require the undoing of the implementation of the Award given by the District Forum. This action of undoing will be impossible in case he has been imprisoned and in cases where amounts have been paid, the recovery of the same by "B" from "A" may entail unnecessary and long procedure (which may be even through Civil Court), involving avoidable time, efforts, and money in addition to an increase in litigation work and hardships. As such there is a desirability also in the general public interest, in addition to it''s necessity, that in case orders of the District Forum are being executed by the District Forum inspite of their knowledge that the said orders have been appealed against in the State Commission, the State Commission should consider this matter and pass suitable orders as may be necessary. In my opinion this also flows logically from the provisions of the Consumer Protection Act, 1986. 5. The Consumer Protection Act, 1986 - Section 15 provides a right to appeal in State Commission against any order of the District Forum. In case an appeal has already been filed but before the decision is given in the appeal, the order appealed against is got executed and implemented and provisions of Section 25 & Section 27 arc proceeded with by the very right to Appeal. 6. This State Commission has now been functioning for about 4 years. In this period a number of orders have been passed by us wherein even before deciding the appeal but after the appeals were registered, the orders of the District Forum (as have been appealed against) have either been stayed or suitably modified. To the best of my knowledge, no such order has been held to be outside the purview of the Consumer Protection Act, 1986. Our attention has also been drawn during arguments to an order dated 16.11.1992 of the Hon''ble National Consumer Dispute Redressal Commission, New Delhi (as has been passed by it''s President and other 3 members) in the Revision Petition No. 248 of 1992M/S. Bombay Art Studio v Giridhar Gopal Pandey. The order reads as under: - "........................................................................... There will be an interim stay of enforcement of the order passed by the State Commission until further orders".

Even on earlier occasions the Hon''ble National Commission had passed orders staying and/or amending the orders of this State Commission, before disposing off the appeals filed with them against our orders shows that no special provisions exist in it empowering only the National Commission to pass orders in such a matter. This also leads to an opinion that circumstances as given above in the end of the para 3 and para 4 deserve to be given consideration by this State Commission and that suitable orders as and when considered necessary be passed. These matters, in my opinion should, therefore, be dealt with accordingly. By doing so, there is to be hardship to the other party as well, and both the parties will have full opportunities for their respective view-points to be considered according to the provisions of the Consumer Protection Act, 1986. Appeal allowed.