United India Insurance Co. vs Mohd.Saleem

STAY MATTER. In it''s order of the 7th August 1993 the commission held, by majority, that it has no power to grant any interim order, by way of suspending the execution of an order made by a District Forum, during the pendency of an appeal against it before the Commission. The correctness of that view has been assailed before us Reconsideration of the earlier view, by the three of us, is permissible in law (See: Union of India and Another v. Paras Laminates (P) Ltd. (1990) 4 S.C.C. 453). Sec. 15 of the Consumer Protection Act. 1986 (for short, ''the Act'') providing for appeals to the State Commission says, "Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed Provided"

THE form and manner has been prescribed by the U.P. Upbhokta Sanrakshan Niyamawali, 1987. An appeal "is the right of entering a Superior Court and invoking its aid and interposition to redress the error of the Court below". It is "one in which the question is whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it. "(Per Law Davey; Ponnamma v. Ammogam, 1905 A.C. 390). Section 15 does not limit the expense of appellate powers of the State Commission. No other provision in the Act does so either. The rule of statutory construction is that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution" Maxwell on Interpretation of statutes (11 Ed.). Relying upon this statement of law the Supreme Court said in Paras Laminates (supra) at page 457 (of S.C.C.) "certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the Assigned field of jurisdiction is efficaciously and meaningfully exercised."

(Paragraph 8) "The normal rule is that the incidental and ancillary powers of an appellate authority will include a power to grant stay of the order under appeal-vide I.T.O. v. M.K. Mohammed Kunhiy AIR 1969 SC 430...." (Shyam Kishore and Others v. Municipal Corporation of Delhi and Another (1993) 1 S.C.C. 22 (Paragraph 40).

The principle was applied by the Supreme Court in State of U.P. v. Poosu (AIR 1976 S.C. 1750 (1752) when it held that when an Act of Parliament gives a justice jurisdiction over an offence, it impliedly gives him a power to make out a warrant and bring before him any person charged with that offence.

SIMILARLY, while dealing with the powers of the Railway Claims Tribunal constituted under Railway Claims Tribunal Act, 1987 the Supreme Court said (in paragraph 5) in A.A. Haja Muniuddin v. Indian Railways that, "Nowhere, in the Act is there any provision which runs counter to or is inconsistent with the provisions of Order 33 of the Code. Although the Act and the Rules do not specifically provide for the application of Order 33 of the Code, there is nothing in1 the Act or the Rules which precludes the Tribunal from following that procedure if the ends of justice so require".

It is noticeable that under Section 18(3) the Claims Tribunal has been vested with the powers of a Civil Court under the Civil Procedure Code in some specified matters, Order 33 is not included therein. Finality of orders has been provided for under Section 24 of ''the Act'' which says: "Every order of a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final". An order made by the District Forum, State Commission or National Commission is enforceable by it ''in the same manner as if it were a decree or order made by a Court in a suit pending therein ''under Section 25 while a Complainant, trade or a person who fails or omits to comply with any order made by the District Forum, State or National Commission is punishable will imprisonment and/or fine under Section 27 of the Act''.

THE Scheme of ''the Act'' appears clear. An order made by the District Forum, if taken in Appeal before the State Commission, can eventually be set-aside or modified by the Commission if it chooses to intervene in the matter. In that event, order of the District Forum, in the form passed, becomes unenforceable. As such, the order can be made in-operative, wholly or in part, while the matter is pending its examination, by the Commission on such conditions, if any, as it lays down, to adjust equities, between the parties. It is this equitable principle which is enshrined in Rule 5 of Order 41 CP.C. though the mere filing of an appeal may not entitle the appellant to claim automatic stay of the operation of the order under appeal. True it is that ''the Act'' is a Code in itself which envisages an inexpensive and expeditions disposal of disputes brought before the District Forum or the State or National Commission, yet, the hearing and disposal is to be done consistently with the accepted principles of law subject, of course, to the limitations provided for in ''the Act.'' We find no limitation, express or implied, in the provisions of ''the Act'' to pursuade us to take the view that the Commission has no power, during the pendency of an appeal before it, to suspend the operation of the order under challenge in the appeal. The consequence of negating the existence of the power to grant stay, during the pendency of an appeal, in suitable cases can result in grave injustice particularly when ''the Act'' does not contain any express provision to direct restitution if the appeal before it succeeds. As an instance we might think of a case where the District Forum awards an unduly excessive amount by way of compensation and enforces its order by recourse to coercive methods. If the appeal before the Commission against the award succeeds, recourse may possibly have to be taken by the successful party to proceedings before a Civil Court to recover the amount from the one which succeeded before the District Forum. The delay and expenses involved apart, it will lead to multiplicity of proceedings defeating the very purpose of the Act. The recognition of existence of power in the State Commission to grant suitable interim order, depending upon the circumstances of a particular case, keeping in abeyance enforcement of the order under appeal wholly or in part, upon such conditions, if any, considered appropriate by it would advance the cause of justice. Such a view must be preferred to the one which defeats it. (See. A.A. Haja Muniuddin v. Indian Railways (Supra) Paragraph 5). The observations, of the Supreme Court, undoubtedly, have to be read in the context of the facts before the Court in the cases before it, but they do suggest that the power to grant stay inheres in the appellate Forum subject; of course, to express provisions about it.

WITH utmost respect to the majority view of the Commission in its order of 7th August, 1993, we find ourselves unable to share it. We hold that this Commission has power to suspend the enforcement of the order challenged before it in appeal wholly or in part in suitable cases, depending upon the circumstances of a particular case, upon such terms and conditions as are found appropriate and further that there is no automatic suspension of the order of a District Forum upon its being challenged in appeal before the State Commission. Let the stay applications be listed for appropriate orders individually. This order by us shall be placed on the file of appeal No. 1533/ SC/1992. Ordered accordingly.