GENERAL MANAGER, TELECOM, RAJKOT vs JAYANTILAL HEMCHAND GANDHI

-THIS is Revision Petition against the order of the State Commission, Gujarat passed on 22.6.1992 in an application for Restoration of appeal No. 48/91, which was dismissed for default on 6th September, 1991.

THE application for restoration was also dismissed on the ground of delay. THE petitioner''s contention is that there is no provision of any special time limit for filing the said application. It is only stipulated in the case of an appeal that it has to be filed within 30 days of the passing of a final order. THEre is no force in this argument. Yet the application for restoration should have been made within a reasonable time limit. Moreover, there is no provision for a review or restoration application in the Consumer Protection Act, 1986. The petitioner has also argued that the State Commission has erroneously upheld the District Forum''s order, by dismissed their appeal, as the District Forum has entertained a petitioner filed in 1991 of a case, the cause of action of which arose in 1976 - 15 years earlier. And by its order of giving relief to the complainant, the District Forum has tried to nullify Rule 422 of the Indian Telegraph Rules, whereby telephones disconnected under emergency situation such as the use of phone for anti-national activity are not liable to be restored.

The brief facts of the case as stated by the petitioner are "the respondent complainant''s telephone No. 26961 was disconnected for security reasons on 23.2.1976. In the year 1977 the respondent wanted to pay a sum of Rs. 750/- which was outstanding against his telephone and to get the telephone restored. The respondent was allowed to do so and the respondent subsequently deposited a cheque dt. 2.9.1978, but the same was dishonored and the petitioner did not restore the telephone. It is submitted that the respondent only tried to defraud the telephone department by tendering a cheque without any intentions of actually paying the same. The respondent was informed about the reason for non-restoration of telephone and thereafter the respondent has never responded to the said letter. In the meanwhile when the cheque was tendered by the respondent the petitioner had conducted a field verifycation which revealed that the respondent had never resided at the address furnished to the petitioner for the restoration. Therefore, the intention was only to misuse the telephone after wrongly getting the telephone restored".

AFTER 13 years the complainant filed a complaint in the District Forum, Rajkot, on the plea that he had kept alive the complaint by writing to various officials and ministers, and the District Forum directed reconnection of the telephone after recovering Rs. 750/- from the complainant. Aggrieved by the order, the petitioner preferred an appeal to the State Commission, which was dismissed for default on 6th September, 1991. No satisfactory explanation was given by the petitioner for remaining absent at the State Commission''s hearing on two occasions. The State Commission had given one more opportunity, after the appellant had remained absent on the first occasion of hearing.

THE petitioner filed an application for restoration of the appeal on 24th February, 1992. THE State Commission dismissed that application on the ground that it was filed after a period of 4-5 months of the order dismissing the appeal in default and no reason and cause had been shown for filing the application so late. THE State Commission, refused to restore the appeal. We are of the opinion that under the Consumer Protection Act (for short the Act) there is no provision for restoration of a cause dismissed in default and therefore, the petitioner''s application for restoration of the appeal dismissing in default was an exercise in futility. After going through the order passed by the State Commission in the appeal we find that except dismissing the appeal in default the State Commission did not pass any order on the merits of the appeal. The appellate forum constituted under the Act should not dismiss an appeal merely on the ground of default of appearance of the appellant but the merits of the case should be considered on the basis of the material available before them and thereafter pass appropriate order in the appeal. Therefore, on that ground the order of the State Commission is bad in the eye of law.

HOWEVER, we do not think that it will serve any useful purpose by remanding the case to the State Commission. As noticed earlier the complaint of the present respondent filed before the District Forum was a very stale one. The complainant has of course written to the higher authorities about the reconnection but those applications or notices will not help to keep alive the cause of action of the complainant for purposes of computation of period for purpose of limitation. Hence the complainant was not entitled to any relief under the Act.

THUS this Revision Petition No. 261 of 1992 is allowed and the order of the State Commission as well as the order of the District Forum dated 29.5.1991 are set aside. The complaint, petition will stand dismissed. There will be no order as to costs. Petition allowed.