KULDEEP SAXENA vs Krishna Pal

THIS is an appeal against the order dated 11.1.1999 passed by the District Forum, Muzaffarnagar in Complaint No. 38/1998. The facts of the case, as stated in brief, are that the complainant-respondent in the present appeal, filed a complaint against the appellant. THIS appeal was dismissed on 25.5.1998 in absence of complainant. Thereafter on the same day he moved an application for restoration of the case. The application was opposed by filing objection.

AFTER hearing the learned Counsel for the parties, the learned District Forum came to the conclusion that in the Consumer Protection Act, there is no provision for restoration of a case or for following the provisions of Order 9, Rule 9, Civil Procedure Code. Same case laws were produced by the parties and after considering the facts, came to the conclusion that the District Forum had powers to set aside an order of dismissal and thereupon allowed the application for restoration of the case. Aggrieved against this order, the complainant has come up in appeal and has challenged the correctness of the order passed by the learned District Forum.

We have heard the learned Counsel for the parties. Learned Counsel for the appellant made reliance on the case of General Manager (Telecom), Rajkot v. Jayantilal Hem Chandra Gandhi, III (1993) CPJ 273 (NC). On the basis of this judgment it is argued that there is no provision for restoration of application and as such it cannot be allowed. In the case law cited, the question was whether a case dismissed on default can be restored or not. One more fact was involved in the above-cited case that the restoration application was also dismissed on default and whether that application could also be allowed. On the basis of these facts, the National Commission came to the conclusion that there is no provision for restoration of a case dismissed in default. Therefore the petitioner''s application for restoration was dismissed.

IN the case of K.K. Sharma v. S.D. Sharma, II (1996) CPJ 389=1996 (3) CPR 320, the question was whether an application to set aside order for proceeding ex-parte can be set aside. IN this case the citation of a judgment delivered by Hon''ble Supreme Court was made. The Hon''ble Supreme Court in the case of Grindley Bank v. Central Government INdustrial Tribunal, AIR 1981 SC 606, held that "by rule of statutory construction, a Tribunal is endowed with such anciliary and incidental powers as are necessary to discharge its functions effectively for the purpose of doing complete justice between the parties. The power to proceed ex-parte or to decide a matter ex-parte therefore includes power to set aside the same, in order to do complete justice between the parties". Thus on the basis of this judgment, the National Commission has held that the District Forum has powers to set aside an order which has been passed ex-parte. It has also been held by the National Commission in the case of Ravikant v. Kailash Chand, that the restoration of appeal dismissed for default can be set aside. That was a case where the appeal was dismissed by the National Commission and it was set aside. Thus in view of these case laws, it is clear that the District Forum has jurisdiction to set aside an ex- parte order passed in a particular case. Madras High Court in the case of Manager, INdian Bank & Ors. v. District Consumer Disputes Redressal Forum, Madras, III (1996) CPJ 597=1996 (2) CPC 524, has held that the District Forum has powers to set aside ex-parte orders. It further held that the Consumer Forums should be considered as having possessed with such ancillary or incidental powers until there is any indication in the statute to the contrary and there is no such indication contrary in the present statute. Thus in view of the case law cited above, the view of the National Commission cited by the opposite party has already been reviewed by the National Commission and the National Commission has itself held that there is powers with the Forums to set aside ex-parte orders passed by it. Thus we find that the orders passed by the District Forum setting aside the dismissal order is perfectly correct and there is no infirmity in that order and it needs no interference. The appeal is therefore liable to be dismissed. ORDER The appeal is dismissed. Let copy of the order be sent to the parties as early as possible and a copy be also sent to the District Forum, Muzaffarnagar. Appeal dismissed. _____________