SATENDER YADAV vs SOMKO AUTOMOBILES

WHETHER a complaint dismissed in default due to the non-appearance of the complainant can be restored for trial by the District Forum ? This is the solitary but significant question in this revision petition.

THE facts are not in dispute. THE petitioner had preferred the complaint on the 7th of November, 1991 and it is the stand that in a number of hearings which followed, he closed his evidence on the 7th of April, 1993 and the case was continuously being fixed for the opposite parties'' evidence since 17th of May, 1993. THEreafter as many as five adjournments were granted for the evidence of the opposite parties till the last date of hearing on the 7th of October, 1993. It is the petitioner''s case that his Counsel had unavoidably gone out of station to conduct his cases after expressly making a request to his colleague to put in appearance on his behalf because of the mere formality of the tendering of the opposite parties'' evidence on the said date. However due to some mis-understanding the said Counsel failed to appear before the District Forum and the complaint was dismissed by the order in the following terms : "Called several times, but none appeared on behalf of the complainant. So the complaint stands dismissed in default." Aggrieved by the above, the petitioner then put in a detailed application for restoration of the complaint alongwith the affidavit of his Counsel Shri Anil. S. Rao, Advocate giving sufficient and adequate reasons for his non-appearance. The said application came up before the District Forum on the 14th of December, 1993 and was inevitably opposed by the other side on the alleged ground that the District Forum had no jurisdiction to restore the complaint. Upholding the objection the District Forum recorded the following operative part of the order : "We have heard the parties. In G.M. Telephone v. Jayanti Lal, III (1993) CPJ. 273 (NC) National Commission has held that under the Consumer Protection Act, the complain dismissed in default cannot be restored, as the Forum has no such power. As such, we are of the view that complaint cannot be restored and this application is liable to be filed and is filed as such."

Mr. B.S. Rana, the learned Counsel forth petitioner in assailing the aforesaid order has contended that G.M. Telephone v. Jayanti Lal (supra) is not a warrant for any inflexible propo-sition that the refusal agencies are barred from restoring a case dismissed in default even when impeccable reasons for doing so are manifest. It was the submission that the case aforesaid is distinguishable and in any case in the mere absence of a specific provision there was no bar against the redressal agencies to devise their own procedure consistent with natural justice, equity and good conscience.

THERE is no manner of doubt that the present case and the submission aforesaid gives rise to a significant issue having larger ramifications in the whole gamut of the consumer jurisdiction. Inevitably, therefore, it would need an examination in some depth. However before proceeding further it is necessary to first determine the true ratio in CM. Telephone v. Jayanti Lai (supra) which being a decision of the National Commission is binding on us. There is no gain saying the fact that a superficial reading of an isolated paragraph in the judgment aforesaid may give the first impression which the District Forum has assumed to be the final one. However a close perusal thereof would show that therein the complainant had attempted to take up a stale claim of more than 13 years before the District Forum, Rajkot which was nevertheless allowed by it with a direction to give the relief of reconnection of the telephone after recovering Rs. 750/-. The appellant-department of Telecommunication appealed to the State Commission. On the 6th of September, 1991 the appeal was dismissed in default of appearance. After nearly 5 months on the 24th of February, 1992 an application for restoration of the same was moved before the State Commission which failed on the ground of being patently belated and the State Commission refused to restore the appeal. It was in this context that Mrs. A.S. Vijayakar, Member made a passing observation in paragraph 8 of the report that in the Act, there was no provision for restoration of a cause dismissed in default and the application for restoration was an exercise in futility. However the Revision Petition was allowed firmly on the ground that complaint was patently barred by limitation, and the mere fact that the complainant had written to the higher authorities would not help to keep alive the cause of action for the purpose of computation of the period for the said purpose. The alternative ground for allowing the revision petition was that the appeal should not have been dismissed in default and the merits of the case should have been considered on the basis of the material available before the State Commission, and thereafter it should have passed appropriate order in the appeal. It was held that on that ground also the order of the State Commission was bad in the eyes of law.

IT would be somewhat manifest from the above, that the twin ratio of the case upon which it turned in favour of the petitioner was the bar of limitation and the dismissal of the appeal considering the merits. The passing observation that in the Act there was no provision for restoration of a cause dismissed in default was in no way either the ratio of the said case nor was any such issue even remotely raised before the National Commission for a considered decision. IT necessarily follows therefore that G.M. Telecom, Rajkot v. Jayanti Lal Hem Chand Gandhi can not be read as a binding precedent or warrant for the proposition that in no circumstances a lis before the redressal agencies dismissed in default can be restored. The somewhat summary view taken by the District Forum reminds one of the hallowed observations of the Earl of Halsbury LC in Quinn v. Leathern 1901 AC 495, which have not been dimmed by the passage of nearly a century and may be recalled in extenso : "The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all." Approving and affirming the aforesaid observation with regard to precedent the Final Court in A.I.R. 1968 S.C. 647, State of Orissa v. Sudhansu Sekhar Misra elucidated it further as follows : "It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." It appears to us that the District Forum has slipped into the same unprofitable task of hinging itself on a sentence here and there from the order in CM. Telecom, Rajkot v. Jayanti Lal Hem Chand Gandhi (supra). We are, therefore, of the considered view that the said case is plaintly distinguishable, and in any case the observation therein is obiter-dicta. Once the aforesaid precedent is out of the way it deserves highlighting that it had rightly observed that there is no provision in terms under the Consumer Protection Act for the restoration of a case dismissed in default. Not only that even in the rules framed under the Act which by & large have been uniformly adopted all over the country in the shape of a model set of rules, is there any provision for such a restoration. The gut question, therefore, is whether in such procedural vacuum the redressal agencies are in any way barred from devising their own procedure, for restoration in sound reasons.

WE may highlight that one of the refreshing features of the consumer jurisdiction is its freedom from the shackles of technical and intricate procedure. This is the hall-mark which dis-tinguishes it from the legalism and the formalism of the ordinary Civil Courts. It would appear that Parliament in its wisdom by design did not choose to burden this nascent consumer jurisdiction with the weight of detailed procedural provisions which have some time come to hamstring many other jurisdictions. This is manifest from the fact that under Section 13 (4) of the Act, barest minimum provisions of the Code of Civil Procedure have been made applicable whilst the vast plethora of the other exhaustive provisions of the said Code have been excluded by necessary implication. Similarily the technical provisions of the Indian Evidence Act are again not applicable to trials before the redressal agencies. Can it, therefore, be said that where there is no express procedural provision like those in the Civil Procedure Code or Indian Evidence Act the redressal agencies are barred from applying the larger principles attracted to a situation by natural justice, equity and good consensus ? WE do not think so. Indeed, it appears to us that the real question in such a vacuum situation is whether there is a legal bar in devising & adopting a procedure, where there is express provision therefore.

IN the light of the above, it appears to us that in the absence of an express power of restoration of a cause dismissed in default either in the Act or in the rules framed there under and the obvious necessity thereof in the day to day functioning of the consumer jurisdiction, one comes to the cross-roads of a legal conundrum epitomized in the celebrated observations of Denning L.J. in Seaford Court Estates Ltd. v. Asher, 1949 (2) Kings Bench 481, what have now become virtually classic words would yet bear repetition within the somewhat nascent consumer jurisdiction : - x x x x x x "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the drafts-men of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. IN the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which was passed to remedy, and then he must supplement the writ-ten word so as to give "force and life" to the intention of the legislature."

IN view of the hallowed observations above, the kernel question herein is whether the National Commission or the State Commissions should simply fold their hands and blame the draftsmen for the lacuna or in the alternative to give force and life to the real intention of the Legislature. The answer in our view must necessarily be the latter one. This seems to be more so because it is at once conceded in all hands that the Act is a beneficent statute in construing which the object thereof should be furthered and where two constructions are reasonably possible, the broader one must be adopted. This has been authoritatively so held in The Regional Provident Funds Commissioner, Punjab v. Shib Metal Works, A.I.R. 1965 SC 1076 in the following terms : - "If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction."

Herein what prominently meets the eye is the fact of the acute paucity of procedural provisions both in the Act itself and the rules framed there under. It bears repetition that Sections 12, 13 and 14 of the Act and the relevant provisions of the Haryana Consumer Protection Rules leave wide gaps in the procedure necessary for the trial of a list within the consumer jurisdiction. It is in this situation of a virtual procedural vacuum that the redressal agencies have necessarily to fall back on the well accepted rule of devising its own procedure in the absence of a clear prescription. It is unnecessary to enlarge on this aspect on principle because the matter seems well-covered by precedents. It would suffice to refer to the Division Bench judgment in New INdia Assurance Co. v. Punjab Roadways, A.I.R. (51) 1964 Punjab 235.Therein, in a somewhat analogous situation, in the absence of any procedure under Section 110-B of the Motor Vehicles Act it was held that the principle embodied in Order 1 Rule 10 of the Civil Procedure Code could be followed. It was authoritatively observed : - "From this it follows that unless there is any prohibition in the rules framed under the Act, the Tribunal is free to follow any procedure which it considers expedient in the interests of justice. IN similar situation, Bhandari, C.J. observed in 59 Pun LR 45 that in the absence of a restraining provision a Tribunal is at liberty to follow any procedure that it may choose to evolve for itself so long as the said procedure is orderly and consistent with the rules of natural justice and does not contravene the positive provisions of the law. The section expressly confers power son the Tribunal to formulate its own procedure, and for the purpose of promoting the ends of justice it could well resort to all the principles of an orderly trial and for that purpose exercise the powers of allowing amendments or substitution so as to rectify a mistake or to bring on record parties which were necessary or proper."

Yet again in A.I.R. (60) 1973 J & K 38, M/s. South INdia INsurance Company v. Motor Accidents Claims Tribunal Jammu & Kashmir & Others, it was observed as follows : - "IN the instant case, there being no rules the procedure had to be formulated by the Tribunal itself and there was no specific bar in the Act to dismiss a petition in default or to restore it. Whatever action was taken by the Tribunal either in dismissing the petition or in restoring the same will be deemed to be the procedure formulated by the Tribunal. x x x x x x The matter truly and essentially pertains to the domain of judicial discretion governed by the rules of reasons and justice. The Tribunal in the absence of positive authority like the provisions of the Civil Procedure Code has to accept the reasons by analogy and nearly as possible to such provisions and has to come to a decision by weighing rival considerations according to the trained judicial technique."

Nearer home, within the consumer jurisdiction, the Madhya Pradesh State Commission in I (1992) C.P.J. 356, T.P. Chaturvedi v. Deomani Kotedar has taken the view that the District Forums in the absence of the specific provisions of the Code of Civil Procedure being made applicable have to formulate for its working, its own procedure keeping in mind the rules of natural justice and in certain case principles incorporated in the Civil Procedure Code unless of course the Act and the rules prohibit such application."

Equally one must come back to the hallowed principles of natural justice which must inevitably come into play on the absence of embodied rules. It is in adage of the law that no litigant shall suffer because of the act of a Court. It is somewhat elementary that some time for the most unavoidable or impeccable reason a litigant or his Counsel may fail to appear before the redressal agencies on the appointed day. The rules framed under the Act give express power for dismissing a case in default which inevitably is done in the absence of the defaulting party. Can it possibly be said that even if such party appears and shows the most convincing and impeccable reason for its non-appearance the redressal agencies would be helpless in the matter, or to repeat the words of Lord Denning that they must fold their hands and deny redress where it is patently due. We do not think so. Indeed we are inclined to the view that refusal to restore even when patently good cause is shown would be a patent miscarriage of justice. It is on this larger principle that the detailed procedural provisions in the Civil Procedure Code exist for restoration of a suit or appeal. It is true that those provisions in stricto-sensu are not at all attracted in the consumer jurisdiction. But that is no ground for holding that the spirit, the principle, and the purpose under-lying them, would not be equally attracted for granting redress, in a manifest situation requiring restoration of the lis.

It seems unnecessary to labour the point any further particularly because we are within the confines of the somewhat summary consumer jurisdiction. In the light of the aforesaid discussion, it would seem to follow that within the quasi-judicial field of a consumer dispute a power of restoration has to be necessarily devised as sound procedure even in the absence of an express provision therefore. It bears repetition that the real question in this beneficent jurisdiction is whether there exists a bar against the devising of such a procedure and not merely that there is no express provision therefore.

IN the light of the above the answer to the meaningful question posed at the out-set has to be recovered in the affirmative. It is held that a complaint dismissed in default due to the nonappearance of the complainant can be restored for trial by the District Forum. Once the aforesaid conclusion has been arrived at, the petitioner herein must succeed. The District Forum dismissed the application on the sole ground of its alleged non-maintainability. We are constrained to set aside the order of the District Forum and remand the matter back with the direction that the application of the petitioner be decided on merits in accordance with law.

THE Revision Petition is allowed in the terms aforesaid. But we leave the parties to bear their own costs. Revision Petition allowed.