RAJASTHAN MEDICAL STORE vs VIJAY KUMAR DAYA

THIS revision under Section 17(2) of the Consumer Protection Act, 1986 ("the Act") is directed against the order dt: 24.3.90 passed by the District Forum, Udaipur in Complaint Case No. 49/89 (medicine) by which the application of the complainant was accepted and it was ordered that proceedings for restoring the complaint to its original number may be taken. The complaint filed by the complainant (non-petitioner) was registered. Notice was issued to the petitioner-opposite party. Before the District Forum certain preliminary objections were raised which were repelled and Rs. 500/- were ordered to be paid as costs. The appeal was filed which was disposed of on 9.8.89 and the order was set aside. The record was received by the District Forum on 7.10.89 and next date fixed was 8.11.89 and on 8.11.89 the next date fixed was 5.12.89. On 5.12.89 the complainant was not present and so the complaint was dismissed in default. On 13.12.89 an application was filed stating that he has always been prosecuting the complaint in the interest of public and has been appearing but could not appear on 5.12.89, as on the last date 1.12.89 was to be fixed as date of hearing. He prayed that there was sufficient cause for not appearing on 5.12.89 when the complaint was dismissed in default. Notice was issued on application. On behalf of the opposite party Shri Sunder Lal Mandawat, Advocate appeared. He raised an objection opposing the application and submitted that once the complaint was dismissed in default in the absence of any provision in the Act, the complaint can not be restored to its original number. An objection was also raised that the complainant has no locus standi to file the complaint and so far this reason also the complaint should not be restored. The District Forum after considering the submissions, accepted the application of the restoration and ordered that proceedings to restore the complaint to its original number should be taken. Against that, the revision has been filed.

OFFICE reported that there is delay of 8 days in filing the revision. Objection regarding the signatures on the revision petition was also raised by the office. A notice was ordered to be issued to the petitioner to remove the defects pointed out by the office. A presumption of service was raised on August 30, 1990. The revision was ordered to be consigned to record. Thereafter an application was filed by Shri Sunder Lal Mandawat, Advocate. In that application nothing was said about the delay in presenting the revision. On October 9, 1990 it was recorded that it is barred by nine days and no application for excusing delay has been filed. On that day it was ordered that a notice be issued to the petitioner/its counsel to appear before the State Commission on 13.11.90 for considering the question of limitation and preliminary hearing. A presumption of service was raised of the above notice on 13.11.90. Revision is fixed for considering the question of limitation and for preliminary hearing of the revision. Under Section 17(1)(b) no period of limitation has been prescribed under the Act and the Consumer Protection (Rajasthan) Rules, 1987. There is no limitation for filing the revision against the order of the District Forum. In these circumstances it will not be proper to reject the revision on the ground that it has been presented late by nine days. Under the limitation Act, 1963, period for revision under Section 115 C.P.C. is ninety days from the date of the order. A notice was issued to the complainant for preliminary hearing of the revision. We have carefully considered the grounds of the revision and also the order for restoration dt. 24.3.90 passed on the application filed by the complainant against the dismissal of the complaint in default. The petitioner has not appeared.

Having perused the order we are satisfied that no jurisdictional error or material irregularity has been committed by the District Forum, Udaipur when it ordered that proceedings for the restoration of the complaint which was dismissed in default on 5.12.89 may be taken. The District Forum which dismissed the complaint in default was competent to restore on sufficient cause being shown. There is no ground for interfering with the order under revision. The revision petition shall stand dismissed. Revision petition dismissed.