S.RAMRAJ vs P.UDHAYAKUMARALINGAM

THIS revision has come up for admission before us today.

THE short facts leading to the filing of the revision may in brevity be stated for understanding the crux of the issue involved for consideration in this action. The revision petitioner herein is the opposite party in O.P. 191/1998 on the file of the District Consumer Disputes Redressal Forum, Srivilliputhur. The said O.P. as against him had been instituted by the complainant before the Forum below for certain reliefs as prayed for in the complaint.

The revision petitioner/opposite party did not file any version. It also appears he did not appear before the Forum below when the matter was posted for enquiry. Consequently, he was set ex-parte and an order had been passed on consideration of the materials placed on record by the complainant on 22.6.1999 by allowing the complaint and directing the revision petitioner/opposite party to pay Rs. 10,000/- by way of compensation to the complainant.

THE opposite party thereafter filed I.A. No. 68/1999 praying to set aside the ex-parte order so passed by the Commission. In the petition so filed, he would however allege that since he was suffering from jaundice for quite long, he was unable to contest the case properly and also he was unable to be present on the day when the matter was posted for enquiry. THE petition so filed had been filed after a delay of 37 days. THE respondent/complainant in the said I.A. opposed the petition so filed by filing a counter. The Forum below passed an order on 10.7.2000 dismissing the application so filed holding that the delay caused in filing the application to set aside the ex-parte order had not been properly explained.

AGGRIEVED by the order as above, the revision petitioner/opposite party resorted to the present action. We heard the arguments of learned Counsel Mr. K.V. Ananthakrishnan appearing for the revision petitioner. Even at the outset, we may point out that there is no other go for us except to reject this revision petition in limini. The reasons are manifold and rather obvious. There is no pale of controversy that the proceedings before the Forum below in O.P. 191/1998 had been terminated by passing an order on 22.6.1999. Once an order of ex-parte or otherwise passed by the Forum below has the effect of terminating the proceedings in the original action, it goes without saying the Forum below becomes functus officio since the date of passing of the order terminating the proceedings in the original action. The appeal is a creation of a statute. The right of appeal cannot at all be claimed by any aggrieved party as matter of right unless and until such a right had been provided by the incorporation of statutory provisions in the Act governing the situation. So far as the Consumer Protection Act, 1986 [for short, the Act] is concerned, a right of appeal is provided under Section 15 of the Act as against the orders passed by the Forum below before this Commission. Admittedly, in the instant case, as against the order terminating the proceedings, no appeal had been filed before this Commission under Section 15 in the manner contemplated by law. The revision petitioner/opposite party obviously under the impression that the Forum below has a right to set aside the ex-parte order passed by it and that perhaps was the reason, the revision petitioner/opposite party filed the I.A. 68/1999 of course after a delay of 37 days praying for the condonation of delay in filing application. The Forum below, being oblivious of the provisions of law, entertained the application and considered the same on merits as if the Forum is competent to do so by the application of the relevant provisions of the Code of Civil Procedure [for short, "C.P.C."] namely, Order 9 Rule 13. The Presiding Deity of the Forum below is of course a retired District Judge. While presiding over the Consumer Forum, the Presiding Deity of the Forum below is not empowered to exercise and apply all the provisions of the C.P.C., in respect of matters under enquiry as per the provisions of the Act. Section 13(4) of the Act specifically vests certain powers on the Presiding Deities of the Forum to apply only certain provisions of the C.P.C. during the course of enquiry under the provisions of the Act. The provisions of the C.P.C. can very well be applied by the Forum below only in respect of the 6 enumerated categories under Section 13(4) of the Act and not otherwise. Under the enumerated categories, Order 9 Rule 13 is not figuring and, therefore, it is the exercise of such a power does not inhere in favour of the Forum below. The fact that the Forum below entertained the said application and passed orders on merits does not mean that the Forum has such powers.

NO doubt true it is that a revisional jurisdiction can be exercised by this Commission under Section 17(b) of the Act where the District Forum appears to have exercised a jurisdiction not vested in it by law. In the case on hand, the Forum below, or course, exercised a jurisdiction in entertaining the I.A. in question for setting aside the ex-parte order passed which is not apparently vested in it. When there is no power for the Forum below to entertain the I.A. in question, it goes without saying that the revision petitioner has no remedy against the order so passed in the said application.

IN this view of the matter, the revision petition is rejected in limini even at the admission stage. R.P. dismissed.