Reliance Industries Ltd. vs DIPA DUTTA GUPTA

THIS is an appeal against an ex-parte order of the Calcutta District Forum passed in C.D.F. Case No. 2277/1996. In the said case the Forum allowed a petition of complaint ex-parte as the opposite parties (namely, the present appellant) did not appear to contest the case.

THE learned Advocate for the appellant submits very forcefully that in this case no opportunity was given to the opposite party to appear and contest the case. It is stated that the learned District Forum issued notice to show cause under Section 13 of the Consumer Protection Act, 1986 on 31.10.1996 directing the opposite parties to appear on 11.11.1996. THE notice along with the papers was actually received by the concerned Department of the appellant No. 1 Company on 8.11.1996, which was a Saturday. It is stated that 11, 12 & 13 November, 1996 were declared as holidays in the appellant''s office on account Dewali and necessary vakalatnama was sent to the Advocate thereafter. It has been further stated that the appellant''s Advocate by their letter dated 14.12.1996 informed the District Forum of the situation and prayed for vacating the ex-parte order but the Forum by its order dated 31.12.1996 rejected the said prayer. It is strenuously argued before the Commission that the ex-parte order passed by the Forum is bad and in violation of the provisions of Section 13 of the Consumer Protection. Act. In support of his contention the appellant relies on a decision of the National Commission reported in II 1992 (1) CPR 218, Super Engineering Corporation v. Sanjoy Vinayak Pant and Anr., in the said case the National Commission held that the notice of the complaint issued by the State Commission is in violation of Section 13(1)(d) when it did not provide thirty days'' time to the opposite party to file its reply. Reference is made to Clause (a) of Sub-section (1) of Section 13 of the Act. Whether the period of thirty days mentioned in this clause is a mandatory or recommendatory one has been the subject matter of dispute and the point is a debatable one. But in any case the facts of the present case shows that little or no opportunity was actually offered to the other party to file the written objection. THE facts alleged in the memo of appeal sufficiently show that the opportunity actually given to the party for appearance and filing its version of the case was against the principles of justice. So we hold in agreement with the learned Advocate for the appellants, that notice given in this case was against the principles of justice and provisions of law. A question has also been raised whether an ex-parte decree can be set aside by a Consumer Disputes Redressal Agency. It is argued that the provision of Order 9 Rule 13 of the Civil Procedure Code has not been expressly mentioned in Section 13(4) of the Consumer Protection Act. The idea that the provisions of sections not mentioned in the aforesaid section are impliedly barred for use by an Agency is not correct. In Sub-section (4) of Section 13 of the Act, certain provisions of the Civil Procedure Code have been mentioned specifically as this section gives special right to a Court for conducting a proceeding before a Tribunal. These rights are specifically given because without such rights it would have been difficult on the part of a Forum to conduct a proceeding under Section 13 of the Act. It does not mean that the other natural provisions are expressly barred. This point should be considered also in the background of Section 25 of the Act where an order made by the District Forum, the State Commission or the National Commission is enforceable as a decree of the Court. Thus a final order passed by the Forum or a State Commission or the National Commission is necessarily a decree and its efficacy must be judged on the basis of corollary powers enabling the Forum or the Commission to dispense justice. It is an idle argument that a case dismissed for default or heard ex-parte cannot be reopened, the next moment after the order is passed, of course if such an order is tried to be set aside after the lapse of considerable period it should not be easily granted.

Considering the above analysis of the legal position and the facts stated by the appellant we are of the opinion that the ex-parte order passed by the State Forum on 11.11.1996 is liable to be set aside and the subsequent order dated 31.12.1996 has not been a proper one. The appeal is accordingly allowed and the order dated 11.11.1996 is set aside and the C.D.F. Case No. 2277/1996 is restored to file in its original number. The case is remanded back to the District Forum for a fresh hearing according to law after giving the opposite parties to file a written objection against the complaint. Case remanded back. _______________