T.P.CHATURVEDI vs DEOMANI KOTEDAR

BOTH these appeals arise out of orders passed by District Forum, Rewa, in Complaint Case No. 10/Forum/90, and as the parties are also the same and the points of law involved are common. BOTH the appeals are decided by this common order.

THE appellant/complainant on 29.6.90, on behalf of consumers of the village, Sir filed a complaint claiming Rs. 15,000/- as compensation. THE record shows that evidence of both the parties has been recorded. THE arguments were also heard on 23.11.90 and the case was posted on 4.12.90 for orders. However, on that date the President of the Forum was unwell, hence the case was adjourned for orders on 17.12.90. On that date, the complainant was absent though one of the N. As. was present. THE learned Forum vide impugned orders dt. 17.12.90 rejected the application on behalf of the complainant which was for restoration of the case which was dismissed earlier on 23.8.90. This impugned order dt. 17.12.90 has been challenged in appeal No. 7/91. THE complainant thereafter filed another application for recalling the order dt. 17.12.90 but that too has been rejected on the ground that the Forum is not vested with inherent powers under Section 151 C.P.C. and accordingly, the orders passed earlier on 17.12.90 have been maintained. We have carefully perused the record, and the complainant/appellant had also addressed us in person. The short point for consideration is whether the learned Forum has power to restore the proceedings which it had dismissed in default of appellant/complainant.

On perusal of the record we find that though the appellant has challenged the orders passed on 17.12.90, as also the orders passed on 2.1.91, the learned Forum even on an earlier occasion on 23.8.90 dismissed the case for default of appearance of the complainant. The case was dismissed at 1.15 p.m. Thereafter, at 1.30 p.m. the complainants learned Counsel moved an application for restoration which was kept for consideration on 4.9.90. The order sheet of that date records that the proceedings as ordered on 10.8.90 shall continue Again on 19.9.90. the complainant and his Counsel remained absent and after waiting till 1.20 p.m. the case was adjourned. The subsequent order-sheets indicate that evidence has been recorded inspite of the aforesaid order dt. 23.8.90.

TO recall, arguments were heard on 23.11.90 and after an adjournment on 17.12.90, the case has been dismissed in default of appearance of the complainant on 17.12.90. In the orders dt. 17.12.90 the learned Forum observed that no specific provision has been pointed out for restoration of proceedings which were dismissed vide orders dt. 23.8.90. That furthermore in the Consumer Protection Act, there is no provision like Order 9 Rule 9 C.P.C.; that Under Section 13(4) of the COPRA powers have been conferred in respect of five matter enumerated therein and therefore, the learned Forum is unable to restore the proceedings.

ADVERTING to Section 13(4) it reads, "For the purposes of this Section, the District Forum shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely: - (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed.

The word ''prescribed'' has also been defined under Section 2(1)(n) which means prescribed by rules made by the State Government or the Central Govt, or as the case may be. Now turning to Rule 4, Sub-rule 8 of M.P. Rules, 1987 it provides "If during the proceedings conducted under Section 13, 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 merit. Where the opposite party or its authorised agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte." Apparently, the rule has "prescribed" the power to dismiss the complaint for default, but there is no provision to restore the proceedings dismissed for default. In the instant case, where the evidence has been recorded it would have been a proper exercise of Judicial discretion to decide the complaint on merits which has not been done. The expression "MAY" occurring in Rule 4(8) of M.P. Rules aforesaid is not mandatory. The discretion which is conferred under the said Rule is judicial discretion which has to be exercised on well recognised principles. The discretion confers the option to the District Forum to decide the case on merits which implies that there are materials on record and some evidence has been adduced by the parties which is recorded. In the instant case, impugned orders dismissing the complaint were passed after recording of the evidence adduced by the parties. Thus, on facts and circumstances in this case, the Learned District Forum has acted in exercise of jurisdiction illegally and/or with material irregularity to attract even Clause (b) of Section 17(1) of COPRA. It could have decided the matter on merits because arguments were already heard before, and the presence or absence of the complainant was not even necessary. Since Rule 4(10) of M.P. Rules, 1987 prescribes that "after the order is signed and dated by the Forum, the parties shall be communicated of the decision free of cost''. Considered from any angle, the impugned orders dismissing the complaint do not appear to be proper.

THE second aspect is whether the District Forum had power to restore the proceedings which it had dismissed in default of the complainant? THE Consumer Protection Act, 1986 and the Rules thereunder provide a speedy and a simple procedure for the protection of the consumers. THE proceedings are Quasi-Judicial, and the Forums are Quasi-Tribunals, providing relief to the consumers. Though only certain provisions of C.P.C. have been made applicable specifically. We have not been shown any decision on this new Act, which is still developing for the proposition that the District Forum has no power or jurisdiction to restore the case dismissed in default. THE Tribunal, in absence of specific provisions of C.P.C. being made applicable, has to formulate for its working its own procedure keeping in mind the rules of natural justice, and in certain cases, the principles incorporated in C.P.C. could be pressed into service because they are based on long experience and proved utility, unless of course the Act or the Rules prohibit application of such principles to meet various situations during the trial of the cases.

IN A.I.R. 1973 J & K, Page 38, (M/s. South INdia INsurance Co. v. M.A. Shetty & Others) the Motor Accident Claims Tribunal had dismissed the application for default, and the question considered was whether the Tribunal could avail all the remedies of restoration on the basis of anologous provision contained in C.P.C.? It has been answered in affirmative on the reasoning that unless there was any prohibition in the Rules framed under the Act, the Tribunal was free to follow any procedures which it considered expedient in the interest of justice. On the J & K decision refers to A.I.R. 1964 Punjab, Page 235 (DB) - New INdian Assurance Co. v. Punjab Roadways (a D.B. decision). It had been observed that "a Court of law possessed inherent powers to act ex debito Justice to do that real and substantial justice for the administration of which it existed, and to do all things that were reasonably necessary for securing the ends of justice within the scope of its jurisdiction. That was also a case of a Tribunal under M.A.C.T. and the ratio is that in the absence of a restraining provision, the 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. On this reasoning in that case, procedure embodied in Order 1 Rule 10 of C.P.C. about substitution of the name of wife in place of the husband was allowed in accordance with the principles embodied in C.P.C. We can visualise number of cases where the parties may be required to amend the complaint or reply, and it could be said that in absence of any specific provision. The anologous provision of C.P.C. i.e., Order 6 Rule 17 is inapplicable, and therefore, no amendment could be allowed. Therefore, we are of the view that in passing the impugned orders the Learned Forum has exercised its jurisdiction illegally and with material irregularity, and as it has already recorded evidence and there were other materials on record, it could have decided the matter on merits, as envisaged under Rule 4 Sub-Rule (8) of M.P. Rules, 1987. In the facts and circumstances in exercise of inherent powers to meet such situation, it could have acted accordingly. Since, in the Act and the Rules, there is no prohibition, it would have been expedient in the interest of justice to have passed order to restore the case dismissed in default of the complainant.

In the result, the appeal preferred by the complainant is allowed. The impugned orders passed by the Learned Forum, Rewa, dt. 17.12.1990 which referred to the earlier orders 23.8.1990 as also order dt. 2.1.1991 are hereby set-aside. The record be sent back to the District Forum, Rewa, to decide the case on merits and if necessary after giving a further hearing to the parties, if they so desire. The parties shall bear their own costs of the appeal as incurred. In view of ordinance amending Sec. 14(2) of C.P. Act, 1986, the orders are signed and passed by President and another Member. Appeal allowed. ________________