U.P. AVAS AVEM VIKAS PARISHAD vs NARENDRA PRAKASH DIWAN

THIS revision has been filed against the order dated 3.2.2004 passed by the District Forum, Dehradun whereby the restoration application of the complainant was allowed.

THE complaint was dismissed on 11.2.2003. THE complaint was dismissed in default of the complainant because the complainant could not attend the case due to ill health. An affidavit and medical certificate were attached along with the application. THE learned Forum held that there was sufficient ground for absence of the complainant and, therefore, restored the complaint. Being aggrieved by that order the present revision has been filed. The learned Counsel for the revisionist argued that the provisions of Order 9 Rule 9, C.P.C. do not apply to the consumer proceedings and, therefore, the Forum has got no jurisdiction to restore the complaint.

We have heard the learned Counsel for the parties and gone through the records. It was argued that there is no provision under the Consumer Protection Act for the restoration of the complaint. To our knowledge, there was also no provision under the Consumer Protection Act for the dismissal of the complaint in default before Act No. 62 of 2002. The complaint should have been decreed or dismissed on merits. If the learned Forum has got no jurisdiction to dismiss the complaint in default, the order is without jurisdiction and an order without jurisdiction is non est in the eyes of law and if the order is non est in the eyes of law, the proceedings continue from the stage on which it was left. There is no question of any restoration. At any rate the learned Counsel for the revisionist argued that it is only the National Commission which has been provided with the powers of restoration as given in Section 22A of the new Act. It was argued that, therefore, by analogy the State Commission or the District Forum has got no jurisdiction to set aside ex parte order. The argument is correct to this extent but it is to be noticed that the new Act came into operation on 15th March, 2003 and the complaint filed before 15th March, 2003 shall be governed by the old Act. The complaint is of 2002, when the new Act was not applicable, therefore, the provisions of Section 22 and its analogies cannot be applied to the present proceedings.

AT any rate under the provisions of Consumer Protection Act, under Section 30 Central Government and any State Government may make rules for carrying out the provisions contained in Sections 13, 14 and 15. Such rules have been made and published. In Uttaranchal, the rules of Uttar Pradesh are applicable. Under the provisions of Rule 4 the matter of procedure has been provided for District Forums and under Rule 8 the similar procedure has been provided for State Commission. In both the provisions, it is specifically provided that if during the proceedings on the date fixed by the Forum or Commission, it is obligatory on the complainant and the opposite party or its authorized agents to appear before the District Forum and where the complainant or his authorized 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 merits. In view of this provision, the learned Forum has got two discretions. One to dismiss the complaint in default, and the other to decide it on merits but there is no provision under the Act or anywhere that if the complaint is dismissed in default, what shall be its ultimate fate? Whether a fresh complaint shall be filed or the aggrieved party may apply for restoration. In the Act, there is also no provision that a second complaint shall lie but by analogies of rulings, it is said that second complaint shall lie. It means that the District Forum or the State Commission will have to make out its own procedure where no procedure has been provided or to embark upon the help of the rulings. Rulings are both ways. Some rulings say that the Forum has inherent jurisdiction to restore the complaint. Other say that there is nothing like inherent jurisdiction under the provisions of the Act or Rule, therefore, it has got no jurisdiction to restore the proceedings. In the ruling reported in II (1995) CPJ 163, Vishal Goods Transport Company v. Inter University Press (P) Limited, the Delhi State Commission has definitely held that the Forum can restore the complaint or proceeding. It has been held in this ruling: "Sub-rule (8) of the Rule 4 of the Delhi Consumer Protection Rules deals with the situation, if either of the parties does not appear before the Forum on the date of hearing. It provides that if the complainant or his authorized agent fails to appear on the date of hearing before the District Forum it may in its discretion either dismiss the complaint for default or decide it on merits and where the opposite party or its authorized agent fails to appear on the date of hearing the District Forum may decide the complaint ex parte. There is, however, no provision in the rules for restoration of the complaints if it was dismissed in default, or for setting aside ex parte order, if ex parte proceedings had been taken against the opposite party. The Fora under the Act have the trappings of Civil Court and exercise quasi-judicial powers. Therefore, if they have got the power to dismiss the cases in default or proceed ex parte against the O.Ps., they have inherent powers to recall these orders, if sufficient cause is known for non-appearance by the complainants/O.Ps. in order to do justice between the parties."

We have already quoted the Uttar Pradesh Rules, which are similar to Delhi Rules. The ruling of Grindlays Bank v. Central Govt. Industrial Tribunal, reported in AIR 1981 SC 606, was referred in this ruling, wherein it has been held that: "Where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. An award to a party is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh."

Lastly in this ruling, it was held: "But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties."

THE learned Counsel for both the parties referred the ruling reported in I (2000) CPJ 19 (SC)=II (2000) SLT 520=II (2000) CLT 30 (SC)=AIR 2000 SC 941, New India Assurance Co. Ltd. v. R. Srinivasan. This was a case of Tamil Nadu State. We have before us the Tamil Nadu Consumer Protection Rules, 1988 as well and in Rule 4(8), there are also similar provisions for the dismissal of the complaint in default or to decide it on merits. In this ruling, the Hon''ble Supreme Court held that if the intention of the Legislature was to apply the provisions of Order 9, C.P.C. also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9, C.P.C. will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under Section 14 of the Consumer Protection Act. In this ruling, the question was not of restoration but the question was of institution of the second complaint on the ground that the first has been dismissed in default. In this ruling, the first complaint was dismissed on 8.2.1993. On 10.2.1993, the respondent filed an application for restoration of the complaint, the application was dismissed, and then second complaint was filed. It was on the second complaint that the matter was disputed. Right of restoration was not specifically challenged in this ruling. THE Hon''ble Supreme Court held that the rules of Tamil Nadu Government do not provide that if the complaint is dismissed in default by the District Forum under Rule 4(8) and by the State Commission under Rule 8(8), the second complaint would not lie. It was held that there is prohibition under Order 9 Rule 9(1), C.P.C. that if a suit is dismissed in default, the second suit on the same cause of action would not lie but there is no such prohibition under the Consumer Protection Act. It was held that if Order 9 Rule 9(1), C.P.C. will not apply to the consumer proceedings, its prohibitions also cannot be extended to the consumer proceedings. It was held in this ruling: "We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every Court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the Court of the judicial or quasi-judicial body are under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the Court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the Court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant."

We emphasize as held in this ruling of R. Srinivasan specifically in para 20 that the only point urged before the State Commission, National Commission and the Hon''ble Supreme Court was that on account of the first complaint having been dismissed in default and the first complaint having not been restored, the second complaint will lie. It was held by the Hon''ble Supreme Court that the interest of justice should not be defeated by technicality. Procedure is laid down to serve the ends of justice and not to defeat the dispensation of justice. In view of this ruling the complaint can be restored if sufficient ground for non-appearance has been shown. The learned Counsel for the revisionist referred the ruling reported in III (1998) CPJ 141=1999 (1) CPR 87, Ashok Sawhney v. M/s. Ansal Housing and Construction Ltd. In this ruling, it is provided that the Forum or State Commission has got no jurisdiction to set aside ex parte reasoned order. Conversely it can be said that if the order is not a reasoned order, it can be set aside. It is only if the order is reasoned order, it cannot be set aside. In the ruling reported in II (2004) CPJ 129, Eastern Telecom v. New India Assurance Co. Ltd., it has specifically been held that a complaint dismissed in default can be restored. In the ruling reported in 1996 (2) CPC 524, the Madras High Court has held that the Consumer Forums have power to set aside an ex parte order to discharge their functions for rendering justice to the parties.

THE learned Counsel for the complainant referred the ruling reported in I (1992) CPJ 356, T.P. Chaturvedi v. Deomani Kotedar, in which it has been held that the Tribunal in absence of specific provisions has to formulate procedure for its working 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. It was further held that in the Act or 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.

ALTHOUGH it is only of academic importance but we will refer the provisions of the new Act also. Under the new Act, under Section 14(2)(c) now the Forum has been given the power to dismiss the complaint in default. Previously, this power was provided under the rules. Said provisions are applicable to State Commission and the National Commission as well. But it is only the National Commission, which has been given the power to set aside the ex parte order under Section 22A. It can be safely argued that the District Forum and the State Commission has got no such power. We cannot challenge the wisdom of the Legislature in giving such powers only to the National Commission but as held in the ruling of R. Srinivasan, the absence of power is not to be presumed, there should be express prohibition. In para 17 of the ruling, the judgment of Mahmood J. has been quoted: "The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibition cannot be presumed."

In the ruling of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others, quoted above, the Hon''ble Supreme Court has specifically held that setting aside of ex parte award does not amount to review of the order. In this ruling, as in our Act, the Tribunal has got no power to set aside the ex parte award but in view of there being no specific prohibition, it was held that the Tribunal shall be deemed to be invested with the power of setting aside ex parte award to give justice to the parties. In view of what has been said above, though the power to set aside ex parte order has been conferred only on the National Commission, yet in view of the specific non-prohibition, the Forum and the State Commission shall be deemed to be invested with the powers to set aside ex parte order to give justice to the parties. Therefore, in our opinion the new Act will also not change the old position. There is no specific prohibition for restoration of the complaint and the learned Forum in its discretion has got every right to restore it. The discretion as exercised by the learned Forum is perfectly sound. We have got no reason to interfere with that. The revision is liable to be dismissed. ORDER The revision is hereby dismissed. However in the circumstances of the case, cost of this revision shall be easy. Revision dismissed.