P.C.JAIN vs Greater Noida Industrial Development Authority

THIS is an application for recalling order dated 12.4.1996 passed by this Commission in Complaint Case No. 222/1993. The facts of the case, stated in brief in the affidavit, are that the case was fixed for final hearing on 16.7.1996. On that date when a person on behalf of the complainant alongwith the Counsel reached the office and enquired about the time when the appeal will be taken up, he was told that the appeal was taken on 12.4.1996 and the judgment was pronounced. The opposite party came to know about the order dated 12.4.1996 only when he visited the Commission on 16.7.1996. He obtained a copy of the order. It may be stated that the appeal was not fixed on 12.4.1996 but it was called on the slip of a paper and the argument submitted by the learned Counsel for the appellant was heard and decided. No intimation was ever sent to the opposite party-respondents for the change of the date. The respondents have, therefore, been denied an opportunity for hearing the appeal.

THE application is opposed. We have heard learned Counsel or the appellant. Order dated 12.4.1996 was pronounced in the open Court on 12.4.1996. From the perusal of the original order delivered in the case, the position will be clear. First para of the judgment and order reads as under "THE file of this case was called for on the slip given by the complainant on the ground that the case was fixed for today in the case registered but it had not been shown in the Cause List." Thus the position in clear that 12.4.1996 was not fixed in this case for hearing. The file was called for on the slip given by the complainant and the matter was heard and decided. This matter is also clear from the perusal of the order. Initially on 18th August, 1995, the case was adjourned to 16 July, 1996 but the hearing was proponed on the request of the learned Counsel for the opposite party and the case was heard and decided.

According to learned Counsel for the complainant an intimation was sent to the opposite party under Certificate of Posting. In support of his case, the opposite party in his counter affidavit has alleged and argued that for deciding the case no party is required to be heard under the Act. It has further been argued that it has not been mentioned in the application that by recall of the order what substantial injustice has been caused to the other party.

THESE contentions raised by the opposite party are untenable and can it be sustained even for a minute. It was the duty of the complainant to have intimated the other party about the change in the date of hearing by registered post. Sending of intimation by certificate of posting does not amount to service on a party and no judicial presumption can be taken of the fact that the service of the letters sent by postal certificate has been served on the opposite party. This presumption can only be taken with respect to a registered letter. The only effect of a letter posted under certificate of posting is that the letter was in fact posted, but there is no presumption that the letter was served on the addressee. The next contention of the learned Counsel for the complainant that no substantial injustice has been done to the other party is also falacious. The other party has a right to be heard before the delivery of the judgment especially when one party has been heard. The case had proceeded ex-parte and the order to the effect has already been passed previously. In the present case the opposite party had filed a written statement and was contesting the case of the complainant and the complainant was heard, and the opposite party had a right to be heard and place his case before the Commission. Thus this argument cannot be also accepted. Whether injustice has been done or not is not to be considered at this stage. The complainant has not been intentionally informed by the other party of the date of the case by registered post. Address of the learned Counsel for the opposite party as well as his residential number are given on the Vakalat Noma, but no attempt was made by the complainant to inform the Counsel. Keeping in mind the above, the application for setting aside judgment dated 12.4.1996 is to be allowed. The application is allowed and the order dated 12.4.1996 is recalled and put up for further orders on 18.3.1999. Let a copy of this order be made available to all parties. Application allowed.