SHREE RAM STEEL UDYOG vs ASHOK KUMAR JAIN

THIS is an appeal against the order dated 26.10.1993 passed by District Forum, Agra in Misc. Case No. 20/1993 arising out of Case No. 230/1992.

FACTS of the case, in brief, are as under: That the Complaint No. 230/1992 was dismissed for default on 20.3.1993. An application was moved by the complainant on the same date for restoration of case on the ground that due to Traffic Jam, he could not reach the Forum in time and when he reached the Forum, he came to know that the complaint has been dismissed. The opposite party filed objections and after considering the matter on merits, learned District Forum restored the order dated 20.3.1993 permitting the case to proceed. Against this order, the appellant has come with an appeal and challenged the correctness of the findings recorded by the District Forum. On the date fixed, the learned Counsel for appellant was not present. Information was sent to the appellant by the learned Counsel for opposite party of the date which was fixed for hearing on 9.3.1999 by registered post. The postal receipt and acknowledgement-due receipt are filed alongwith the communication which was sent by the learned Counsel for the respondent to the appellant.

As the appellant was not present, therefore, the appeal was heard in his absence. Learned Counsel for respondent has been heard. The learned Counsel for the respondent has argued that the District Forum has power to set aside the dismissal order and the learned District Forum has not committed any illegality allowing the application for setting aside the order of dismissal.

PERUSAL of order of the learned District Forum will go to show that the application of the complainant-opposite party was moved on the same day. The copy of application was served on the same day on opposite party. The opposite party filed objections to the application for restoration. The complainant has filed an affidavit but no affidavit was filed by the opposite party. Relying on the affidavit of the complainant, the application was allowed. In the ground of appeal it has been alleged that under the provisions of Consumer Protection Act, there is no provision for setting aside the order passed on merits unless a power to set it aside or review the order is specifically conferred by the statute. Thus, this power cannot be exercised by any judicial authority. Reliance has also been placed in para 5 on the ground of appeal in the case decided by State Commission, Madras, in the case of T. Subramonium v. Perriamma & Others, 1991 (1) CPR 376 and Mis. P.J. Lamch v. Chairman, Tamil Nadu Housing Board, Madras, 1992 (1) CPR 53. The case of General Manager (Telecom) v. Jayanti Lal Khem Chand Gandhi, reported in 1992 (2) CPR 135, has also been relied upon in Para 6 which is decided by National Commission.

ON the other hand, reliance has been placed by learned Counsel for the respondent on the following two cases : (1) K.K. Sharma v. S.D. Sharma, II (1996) CPJ 389=1996 (3) CPR 320, (2) Manager, Indian Bank & Others v. District Consumer Disputes Redressal Forum, Madras and Others, 1996 (2) CPC 524.

The pronouncements of different Commissions cited in paras 5 and 6 in the ground of the appeal under CPR were tried to be perused but citation given in the memo of appeal is not found on those pages. Therefore, in absence of any correct citation, these cases could not be perused. In the case of K.K. Sharma v. A.K. Sharma, (supra) which has been dismissed ex-party it has been held that Forum has power to proceed ex- parte and decide a matter and also has power to set aside the same on sufficient ground. The power to decide ex-parte includes power to set aside ex-parte order. The view was taken by Madras High Court in the Indian Bank v. District Consumer Disputes Forum, Madras, (supra). It was held that when the Consumer Protection Forum has power to decide ex-parte order, then it has power to set aside ex-parte order. Therefore, the Forum has power to set aside the ex-parte order on merits. It was further held that it is well settled rule of Statutory Construction that the Forum should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions for the purpose of rendering complete justice between the parties unless there is any indication in the Statute to the contrary. Thus, in view of the above discussion it is held that this District Forum has power to set aside the order on sufficient reason being shown and the learned District Forum has not committed any error in allowing the application for restoration. The complainant has moved an application for setting aside the dismissal order on the same day on which the case was fixed alleging therein that his arrival was delayed on account of traffic jam. This fact was not controverted by the opposite party on affidavit as no affidavit was filed by it which was necessary for other side to have filed if there was any controversy in the allegation of the complainant. Therefore, the appeal has no force and is dismissed.

LET the copy of this order be made available to the parties as per rule. Appeal dismissed.