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Judgment
Pratap Singh, J.—These revision petitions are directed against the orders passed in Appn. No. 24 of 1992 in O.P.No. 173 of 1991 on the
file of District Consumer Disputes Redressal Forum, Madras and the order passed in unregistered M.P. in S.R.No. 1913 of 1993 in O.P.No. 347
of 1993 on the file of State Consumer Disputes Redressal Commission, Madras, respectively. Short facts in C.R.P.No. 2215 of 1992 are:-
The second respondent had filed a complaint u/s 12 of Consumer Protection Act before the District Consumer Disputes Redressal Forum, Madras
and an ex parte order was passed. For setting aside the ex parte order, a petition was filed by the revision petitioner. That was dismissed by the
District Forum holding that it is not maintainable. Aggrieved by the same, the opposite party in O.P.No. 173 of 1991 has come forward with this
revision petition.
Short facts in C.R.P.No. 3944 of 1993 are:-
The second respondent had filed a complaint against the petitioner u/s 17 of the Consumer Protection Act, 1986 and an ex parte order was
passed. To set side the same, the petitioner filed a petition in unregistered M.P. in S.R.No. 1913 of 1993 in O.P.No. 347 of 1993. After hearing
both sides, the State Consumer Disputes Redressal Forum had dismissed the petition holding that the petition is not maintainable. Aggrieved by
that order,this petition is filed under Article 227 of the Constitution of India,
Mr. Rubert J.Barnabas, learned counsel appearing for the revision petitioner in C.R.P.No. 3944 of 1993, would submit that the State
Consumer Disputes Redressal Commission has got powers to entertain the application and decide it on merits, that the dismissal of the petition on
the ground that it is not maintainable under the provisions of the Consumer Protection Act, 1986 (which I shall hereinafter refer to as the ""Act"") is
not correct. Learned counsel appearing for the revision petitioner in C.R.P.No. 2215 of 1992 had adopted the same submissions.
Per contra, Mr. V.R. Gopalan, learned counsel appearing for the first respondent in C.R.P.No. 3944 of 1993 would submit that Section 13 of
the Act enumerates the provisions of the CPC which are made applicable to an enquiry under the Act and it does not include the provision under
Order 9, Rule 13, C.P.C. and so the dismissal of the petition by the Court below is correct, he would further submit that the only remedy open to
the petitioner is to tile an appeal before the National Forum.
I have carefully considered the submissions made by the learned counsels.
First of all, I shall take up the submission made by Mr. Barnabas that section 13(4) of the Act which enumerates the provisions in the Civil
Procedure Code, which are made applicable under this act includes the provision under Order 9 Rule 13 C.P.C. To consider this submission,
Section 13 (4) of the Act needs extraction. It reads ad follows:-
Procedure on receipt of complaint:-
(4) For the purposes of this Section, the District Forum shall have the same powers as are vested in Civil Court under the CPC (5 of 1908), while
trying a suit in respect of the following matters.
(i).... (ii).... (iii)... (iv)....
(v)....
(vi) any other matter which may be prescribed.
Mr. Barnabas learned counsel for the revision petitioner would submit that Order 9 Rule 13 C.P.C. would come within the ambit of Section 13(4)
(vi) which reads :any other matter which may be prescribed"". The plain language of this clause would clearly indicate that any other provision in
C.P.C. which may be made applicable by subsequent additions. It is an enabling Section to bring in any other provision of Civil Procedure Code. I
am clear that it does not include the provision under Order 9, Rule 13 C.P.C. In this regard, Mr. Barnabas, learned counsel would point out that
as per Section 3 of the Act, the provisions of this Act shall be in addition to and not in derogation of the provision of any other law for the time
being in force and that the other provisions of CPC are also applicable by virtue of Section 3 supra and Section 13(4)(vi). When Section 13(4)
specifies certain provisions of CPC and when it also specified by virtue of clause (vi), any other matter which may be prescribed, the submission
that the said clause will bring in other provisions of C.P.C. is untenable. Neither Section 3 of the Act, under which the provision of this Act, is in
addition to and not in derogation of the provisions of any other law for the time being in force, will bring in the other provisions of C.P.C. when
these Sections which are made applicable have been specifically enumerated in Section 13(4).
I shall next consider the question whether the Forums constituted under the Act have got inherent powers to entertain the applications for setting
aside the ex parte orders. To consider this aspect of the case, Rule 9-sub-rules (8) and (9), of the Tamil Nadu Consumer Protection Rules, 1988
are relevant. They read as follows:-
Places of sitting and other matters relating to State Commission:-
(8). If during the proceedings conducted u/s 13, State Commission fixes a date for hearing of the parties, it shall be obligatory on the complainant
and opposite party or his authorised agent to appear before the State Commission on such date of hearing or any other date to which hearing
could be adjourned. Where the complainant or his authorised agent fails to appear before the State Commission on such day, the State
Commission may in its discretion either dismiss the complaint for default or decide it on merits. Where the- opposite party or its authorised agent
fails to appear on the day of hearing, the State Commission may decide the complaint ex-parte.
(9) While proceedings under sub-rule (8) the State Commission may, on such terms as it may think fit, and at any stage of the proceedings adjourn
the hearing of the complaint but not more than one adjournment shall ordinarily be given and the complaint shall be decided within 90 days from the
date of notice received by the opposite party where the complaint does not require analysis or testing of the goods and within ISO days if it
requires analysis or testing of the goods"".
When the Forum has got the power to decide the complaint export, it implies that it has got the power to set aside the ex parte order. The
Commission has got quasi-judicial functions and trappings of a Court. It is well settled that a court has inherent power to set-aside the ex parte
decree ex-debito justitiae, if sufficient cause is shown for non-appearance by the opposite party.
In Satnam Verma Vs. Union of India (UOI), the Apex Court had held that where an ex parte award is made and published in the Official
Gazette, the Industrial Tribunal has the jurisdiction to entertain the application for setting it aside if sufficient cause is shown for absence of
appearance on the date on which the award was made. It has further held that it is not correct to say that the Industrial Tribunal becomes functus
officio, once the award is published in Official Gazette, be it ex parte one, and the appropriate Government alone could set it aside.
In Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, ), the Apex Court has held that though it is true that there is no
express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so, it is well-known rule of statutory construction
that a Tribunal or body should be considered, to be endowed with such ancillary or incidental powers, as are necessary to discharge its functions
tor the purpose of doing justice between the parties. This case also arises where the question of setting aside the award under the Industrial
Disputes Act came up for consideration.
The contention put forth before the Apex Court is mentioned in paragraph 4 of the judgement. It reads as follows:-
It is contended that neither the Act nor the Rules framed thereunder confer any powers upon the Tribunal to set aside an ex parte award. It is
urged that the award although ex parte, was an adjudication on merits as it was based on the evidence led by the appellant, and, therefore, the
application made by respondent No. 3 was in reality an application for review and not a mere application tor setting aside an ex parte award,
While answering this submission, the Apex Court had held as follows:-
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known
rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are
necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that
the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
We do not find any such statutory prohibition"".
The ratio of this ruling squarely applies to the facts of this case.
Mr. Sivagnanam, learned counsel appearing for the first respondent in C.R.P. No. 2215 of 1992 would submit that there are two stages in
passing an ex parte order.
Setting the opposite side ex-parte.
Thereafter, taking evidence and passing an ex parte order He would submit that only in a case where any petition is filed, in between the order
of setting the opposite party ex parte and before passing an ex parte order after taking evidence, the District Forum or the State Commission, as
the case may be can act and once an ex parte final order is passed, it becomes functus officio and cannot entertain any application for setting aside
the ex parte order.
I am unable to accept this submission. The distinction made is most unreal. Whenever an ex parte order is passed, the opposite party has to be first
set ex parte and then evidence taken and the ex pane order is passed and it is part and parcel of the same proceedings and in such a case, the
distinction as has been sought to be made; cannot be made and a remedy denied. Hence, I am unable to accept this submission made by the
learned counsel.
Mr. Sivagnanam, learned counsel would farther submit that under the provisions of the Industrial Disputes Act, only on expiry of 30 days, the
order becomes final and before that the Tribunal has not become functus officio and so the application to set aside the ex parte order can be
entertained and only on these facts, the above rulings of the Apex Court were given. From the portions which I have extracted from the rulings of
the Apex Court supra, I am clear that the general principle has been set out in the above and so I am unable to accept either this submission.
I shall next pass on to consider the submission made by Mr. Gopalan, learned counsel for the first respondent in C.R.P.No. 3944 of 1993 that
the remedy open to the petitioner is to file an appeal before the appellate forum, namely, either before the State Commission or the National
Commission, as the case may be and not to file an application for setting aside the ex parte order. He would submit that appeal is provided under
the provisions of the Act and that could have been resorted to. I am clear that the provision for appeal does not bar the entitlement of a party
before the Forum or the State commission to seek for setting aside the ex parte order, in case sufficient reasons are stated. So this submission
cannot stand.
Mr. Barnabas, learned counsel would submit that though there is no specific provision in the Act to award interest or costs, the Forum and the
Commission are awarding costs, as well as interest which are possible under Sections 34 and 35, C.P.C. and drawing that analogy, he would
submit that the provisions under Order 9, Rule 13 C.P.C. also can be invoked. In this regard, Mr. Gopalan, learned counsel for the first
respondent in C.R.P.No. 3944 of 1993 would submit that orders do not specify Section 34 or 35, C.P.C. and so this submission is not correct.
He would further submit even assuming that the costs or interest is awarded as per Section 34 or 35, C.P.C. it is a mistake and that cannot be
relied upon for justifying another mistake. No doubt Sections 34 and 35 C.P.C. have not been specifically stated in the ex parte order, but yet, the
remedy which is available under Sections 34 and 35 C.P.C. is granted though those two sections are not specifically stated in Section 13(4) of the
Act. But the principle, on which the costs and interest are awarded, is drawn from Sections 34 and 35 C.P.C.
Likewise, though Order 9, Rule 13 C.P.C. has not been specifically stated in Section 13(4) of the Act, the remedy which is available, under
Order 9, Rule 13, C.P.C. can be granted in '' view of the ratio laid down in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and
Others,
Mr. Sivagnanam, learned counsel for the first respondent in C.R.P.No. 2215 of 1992 would submit that these petitions will not fall within the
narrow scope of Article 227 of the Constitution of India. When there is error in exercise of jurisdiction, this court can always come in, by
exercising the powers under Article 227 of the Constitution of India. Taking that view of the matter, this submission cannot stand.
In view of the above, I am clear that the District Forum and the State Commission have got powers to entertain the application to set aside the
ex parte order and decide it on merits. The order passed in Application No. 24 of 1992 in O.P.No. 173 of 1991 by the District consumer
Disputes Redressal Forum, Madras and the order passed in unregistered M.P. in S.R.No. 1913 in O.P.347/93 by the State Consumer Disputes
Redressal Commission, Madras, are hereby set aside. The District Forum and the State Commission are directed to take the petitions on file and
decide them on merits. The District Forum and the State Commission are directed to dispose of the said petitions, expeditiously. In the result, the
civil revision petitions are allowed. No costs.