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Judgment
THIS revision petition is directed against an order date 23.6.94 passed in C.D.F. Case No. 3415/93. Earlier, an order dated 13.6.94 was passed by the Forum ex -parte allowing the complaint petition filed by the revision petitioner/complainant. It appears that in the aforesaid complaint case subsequently the Company could not appear on the date fixed for hearing due to certain reasons. This petition was placed before the Forum by a put up petition and the Forum being satisfied that the Company had bonafide reasons for not appearing on the date of hearing vacated the ex - parte order date 13.6.94 and restored the case. From a xerox copy of the order filed it appears that the said date was 17.6.94 but on another copy it appears that the date 17th was changed to 23rd. Be that as it may, on the said date, either 17 or 23, the impugned order restoring the original case was passed. Against this order, the present revision petition has been filed.
CHALLENGING the order, the learned Advocate for the revision petitioner submits that on 13.4.94 when the first order was passed ex -parte, the Forum became functious officio and that it had no jurisdiction to pass second order restoring the original case. In support of his submission., the learned Advocate cites a decision reported in I (1994) CPJ 231 decided by the Andhra Pradesh State Commission. The argument of the learned Advocate is that the opposite party ought to have filed an appeal against the order. It is true that after a Court passes a final order, whether ex -parte or on contest, it becomes final if no appeal is filed against it. But in this case, the respondent -opposite party presented before the Court explaining the reasons of its non -appearance soon -after the ex -parte order was passed. It was after 4 -days (or 10 days as the case may be) the question is in such circumstances, the Court can consider the reason of absence of the party against whom an order has already been passed by virtue of inherent jurisdiction of vested knowledge ?
ON a due consideration of the entire circumstances and the spirit of the Act we think that the Court has such jurisdiction. Under Sub/ - rule (8) of Rule 5 of the West Bengal Consumer Protection Rules, 1987, where the opposite party or its authorised Agent fails to appear on the date of hearing, the District Forum may decide the complaint ex -parte. Thus, if the Forum has the statutory right to hear a case ex -parte, it must have a corresponding right to set aside the order if sufficient cause is shown and if the party is diligent to come forward explaining the delay early. We do not think that such a prayer can be made before the Court after the passing of a considerable period where the parties have already acted upon the order. A similar provision exists in the Civil Procedure Code under Order 9, Rule 13. Although no such provision categorically applies to an ex -parte order passed in a proceeding under the Consumer Protection Act, 1986, the principle may be followed here also on the ground analysed by us above.
THE only difficulty is which we notice that the order ought not to have been set aside without giving the complainant a liberty to meet the case. But we do not think that for this difficulty, the order should be vitiated particularly when no prejudice is caused to the complainant by the re -hearing of the case. The opposite party here has submitted documents to show that the complainant in the District Forum has already accepted the accounts given by the opposite party as it confirmed by their letter dated 15.3.93. The District Forum who is going to hear the case afresh is directed to look into this letter and the other correspondings relied on by the parties. This letter and other correspondings including the letter dated 6.3.93 produced by the opposite party.
THIS revision petition is, accordingly, dismissed. Let the case be remanded back to the District Forum with the direction to dispose of the case according to law after hearing both the parties. There will be no order for the cost in this revision case.
THE Forum shall try to dispose of the matter expeditiously preferably within one month. Revision dismissed.