Rajesh Kumar Sharma vs BRIGHT CARRIER INSTITUTE

IN this appeal, the complainant seeks setting aside of order dated 3.10.2002 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) vide which his complaint was dismissed for default and seeks restoration of his complaint which on the date when the impugned order was passed was ripe for decision on merit. The file of the complaint case was summoned and notice of appeal was sent to the respondents/O.Ps. on whose behalf Mr. M.S. Kohli, Advocate put in appearance. Mr. M.S. Kohli, raised preliminary objections regarding the maintainability of the appeal under Section 15 of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) on the ground that Section 15 does not envisage the orders of dismissal of the complaint for default/non-prosecution of the complaint case. IN support of his contention Mr. Kohli, Advocate placed reliance on the commentary of Dr. V.K. Aggarwal, Professor and Dean Faculty of Law, Kurukshetra University, the relevant part of which has been extracted by him in his written submission.

MR. Rohit Suri, Advocate appearing for the complainant/appellant, on the other hand, contended that the provisions of Section 15 of the C.P. Act cannot be given restricted interpretation as is being put by the learned Counsel for the respondents. He referred to Section 15 of the C.P. Act and contended that it specifically enabled a person aggrieved by an order made by the District Forum to prefer an appeal to the State Commission. He submitted that the complainant is a person who is aggrieved by the impugned order of dismissal for default of the complaint as his rights have been adversely affected and his consumer complaint which otherwise was ripe for hearing on merit inasmuch as the appellant/complainant had led evidence which he wanted to lead and the respondent/O.P. No. 1 had also led evidence before the District Forum which could decide the dispute on merit rather than in dismissing the complaint for default of the appearance of the complainant. We are inclined to uphold the contention of Mr. Rohit Suri, Advocate for the appellant. The reasons are that the provisions of Order 9 of the Code of Civil Procedure have not been made applicable to the complaint filed under the C.P. Act. It follows that the District Forum is not possessed of the requisite jurisdiction and power under the Act to apply the provisions of Order 9 of C.P.C. and set aside an order of dismissal of the complaint for default and restore the complaint to its original number for decision on merit. This view was expressed by the Hon''ble Supreme Court in the case of New India Assurance Co. Ltd. v. R. Srinivasan, I (2000) CPJ 19 (SC)=II (2000) SLT 520=I (2000) CLT 414 (SC), wherein the Hon''ble Supreme Court held that the Parliament has not thought it appropriate to apply the provisions of Order 9 of the C.P.C. to the proceedings pending before the Consumer Disputes Redressal Agencies under the C.P. Act and, therefore, the provisions of Order 9 Rule 9, Sub-rule (1) of the C.P.C. could not be attracted for, barring a second complaint filed on the same cause of action and for the same relief based on same averments made in the complaint, as were made in the first complaint which has been dismissed for default and not restored. In view of the law laid down by the Hon''ble Supreme Court, it is now no longer in dispute that the provisions of Order 9 of C.P.C. are not applicable to the proceedings under the C.P. Act. The District Forum is not possessed of requisite jurisdiction/power to entertain an application for setting aside an order of dismissal for default of the complaint and to restore the complaint for being decided on merit. In this view of the matter, the complainant is a person who is aggrieved by the impugned order passed by the District Forum though the order is for dismissal of the complaint case for default of the appearance of the complainant on the date when the case was called for hearing. The objection raised by Mr. Kohli, Advocate regarding the non-maintainability of the appeal has no merit and the same is repelled.

Now coming to the merit of the appeal, Mr. Rohit Suri, Advocate contended that the complainant had led his evidence and nothing further was required to be done by the complainant. It was as a matter of fact that the O.Ps. who were to lead evidence for which the date was fixed on 2.9.2002 as 23.9.2002. The Zimini order dated 2.9.2002 shows that evidence was filed on behalf of the complainant. 23.9.2002 was fixed for evidence of O.P. No. 1. On 23.9.2002, Mr. Rohit Suri, Advocate appeared for the complainant. Mr. Parshotam Lal, Agent appeared for O.P. No. 1. O.P. No. 2 was shown as ex parte. The quorum was incomplete. Evidence of O.P. No. 1 was not ready and time was allowed by the Member of the District Forum for the evidence of O.P. No. 1 and the next date was fixed as 3.10.2002. The Zimini order dated 23.9.2002 clearly indicates that 3.10.2002 was fixed for the evidence of O.P. No. 1 and not for any act to be done by or on behalf of the complainant/appellant. When the complaint was taken up on 3.10.2002, the complainant was not present. On behalf of O.P. No. 1 Mr. Parshotam Lal, Agent aforesaid as well as Mr. M.S. Kohli, Advocate appeared. O.P. No. 2 was shown ex parte. Evidence was fixed on behalf of O.P. No. 1. Thereafter, a date was to be fixed for hearing of the arguments in view of the Zimini order dated 23.9.2002. On 3.10.2002, the District Forum passed the impugned order, which reads as under : "None for the complainant. Mr. M.S. Kohli, Advocate for O.P. No. 1 along with Mr. Pasthotam Lal, Agent of O.P. No. 1. O.P. No. 2 ex parte. ......................... Evidence filed on behalf of O.P. No. 1. Called many times during the working hours of the Forum. None is present for the complainant. Hence, the complaint is dismissed in default. File be consigned. Certified copy of this order be communicated to the complainant and O.P. No. 1, free of charge. Announced. Sd/- Sd/- 3.10.2002. Member President (U. Agnihotri)"

THE District Forum, in our considered opinion, did not take into consideration the earlier Zimini order dated 23.9.2002 which clearly indicates that the date of 3.10.2002 was fixed for the production of evidence of O.P. No. 1 and no further hearing was to take place on 3.10.2002. As mentioned earlier, the complainant was not required to perform any act in furtherance of the hearing of the complaint on 3.10.2002 on which date, the complaint case should have been fixed for hearing arguments on a date convenient to the District Forum. Instead the District Forum dismissed the complaint case for default and ordered for communication of the order to the complainant and O.P. No. 1 despite the fact that the O.P. No. 1 was duly represented by the Agent Mr. Parshotam Lal and Mr. M.S. Kohli, Advocate who could be furnished the copy of the impugned order on 3.10.2002 itself. Be that as it may, once we find that the District Forum committed an error in law relating to the procedure for the decision of the complaint case on merit, the impugned order cannot be sustained in the eye of law. Apart from it, Rule 4 Sub-rule 8 of the Chandigarh Consumer Protection Rules, 1987 (for short hereinafter referred to as the Rules, 1987) which deals with ''Place of sitting and other matters relating to District Forum'' with reference to Section 14 Sub-Section (3), clearly provides under Sub-rule 8 under : "(8). If during the proceedings conducted under Section 13, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorised agent to appear before the District Forum 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 District Forum on such day, the District Forum may in its discretion either dismiss the complaint for default or decide it on merits. Where the opposite party or its authorised agent failed to appear on the date of hearing, the District Forum may decide the complaint ex parte."

Before the District Forum could act under Rule 4 Sub-rule 8 of the Rules,1987, the District Forum should have ensured that the said date was the date for hearing of the parties. In the instant case, 3.10.2002 was not fixed vide Zimini order dated 23.9.2002 as the date of hearing of the parties. For the sake of repetition, it may be pointed out that 3.10.2002 was fixed for the evidence of O.P. No. 1 only.

IN our considered opinion, this appeal has considerable merit and is allowed. The impugned order dated 3.10.2002 is set aside. The Complaint Case No. 748 of 1998 is restored to its original number and is remanded to the District Forum with the direction to fix the complaint case for hearing of arguments and decide the complaint case on merit within a period of one month from the date of receipt of record of the case. The parties be informed of this order with further direction that they shall appear before the District Forum-II, U.T., Chandigarh on 17.2.2003. Appeal allowed.