Urmilla Datta vs Manoranjan Panda

THIS petition challenges the order of the State Commission, Orissa in FA No.80 of 2010 in which the State Commission has dismissed the appeal of the petitioners for non-prosecution. The appeal itself was filed challenging the order of District Consumer Disputes Forum Cuttack, Orissa in CC No.95 of 2009. The District Forum had dismissed the complaint of the two Complainants against Dr. Manoranjan Panda, Advocate and others.

FROM the narration in the revision petition and the documents accompanying it, we find that the Complainants had filed the appeal before the State Commission on 6.01.2010. This was followed by an application before the National Commission on 12.5.2010, seeking transfer of the First Appeal No.80 of 2010 from Orissa to any other State Commission. The National Commission passed the following order on 19.05.2011:- "Without expressing any opinion and to remove the apprehension from the mind of the petitioner, we transfer First Appeal No.80 of 2010 from State Consumer Disputes Redressal Commission, Orissa Cuttack to the State Consumer Disputes Redressal Commission, New Delhi if the same has not already been disposed of."

However, a month before the order of the National Commission, the matter had already been disposed of in the State Commission on 18.04.2011. The State Commission, as already noted, has dismissed the appeal for non-prosecution. Thereafter, the petitioners/complainants moved the Misc. Application before the State Commission Orissa on 16.6.2011. It was rejected by the State Commission on 20.6.2011, observing that the State Commission has no power to set aside or review its own orders. In the above background, the present revision petition has been filed against the order of State Commission passed on 18.4.2011 in FA No.80 of 2010 and the order of 20.6.2011 in Misc. Petition No.581 of 2011, rejecting the application for review of the main order. We have perused the records filed by the revision petitioner and heard Shri Dibyasingha Mohanty, petitionerNo.2/Complainant No.2 on behalf of both the petitioner.

It is argued that the matter came up on several dates between 5th and 25th of February, 2010, but was not admitted for want of LCR from the District Forum. It is claimed that the appellant No.2 was present before State Commission on all such occasions. After filing the transfer application before the National Commission, the petitioners informed the State Commission, through an affidavit of 16.7.2010. Thereupon the case was adjourned to 28.9.2010. According to the petitioners, the State Commission adjourned the matter soumotu without any notice to the appellant (present petitioners).

FROM the perusal of the record, we find that the State Commission has recorded the presence of Shri Dibyasingha Mohanty, appellant No.2 in person and filing of an affidavit by him. The State Commission has observed as follows:- "Mr Dibyasingha Mohanty, appellant no.2 appears in person and filed a affidavit with a prayer for adjournment and listing of the matter in the last week of September, 2010 so that he can get the order from the Hon?ble National Commission on his transfer application filed before it. List this matter last week of September, 2010 for production of the order of the Hon?ble Commission."

From the above it is clear, that the direction to post the matter last week of September, 2010 was in keeping with the request made by appellant No.2, Shri Dibyasingha Mohanty, to the State Commission. However on 28.9.2010, when the matter came up, there was no further representation or request. The State Commission thereafter, gave further adjournments on 31.01.2011, 04.3.2011 and 18.3.2011, before passing the impugned order on 18.4.2011 and on all these occasions, the State Commission has recorded the absence of representation on behalf of the appellants (present respondents).

IN the above background, the case of the petitioners before this Commission, in their own words, is as follows:- "That the F.A. No.80/2010 was rejected due to non prosecution on dtd. 18.04.2010 without serving any notice to the appellants. The appellants had filed an affidavit on dtd. 16.07.2010 stating that the T.A. No.4/2010 is pending before the Hon?ble National Commission (order no.6 dtd. 16.07.2010). The soumotu adjournments were by the State Commission from 28.09.2010, 31.01.2011, 18.03.2011 and 18.04.2011, but the Commission did not consider to serve a notice for appearance of appellants. Finally on dtd. 18.04.2011 soumotu rejected the appeal memo for non performance, is illegal and bad in law and violation of natural justice. The order dtd. 18.04.2011 rejection of appeal memo for non-prosecution should be set aside for the ends of justice."

It was argued before us that having delayed decision on admission for months, the State Commission passed the impugned order without any notice to the petitioners. It was argued that the petitioners would have appeared, if the State Commission had issued them a notice. We are unable to accept this argument. The record shows that on 25.5.2010 and again on 16.7.2010, the request of Shri Dibyasingha Mohanty, RP-2 for time to get the order of the National Commission on the transfer application was accepted by the State Commission and time was allowed, as prayed for. The matter was listed for the last week of September, on the request of Shri Dibyasingha Mohanty, himself. Yet, he chose to absent himself on all occasions thereafter. There is no explanation, why. The revision petitioner has also not explained why he could not keep the State Commission informed of the developments in his transfer application, before the National Commission. In the earlier part of this order, we have referred to the decision pronounced by the National Commission on 19.5.2011 in the Transfer Application filed by the petitioners. Even on the day of this order there was a mention of the proceeding before the State Commission. The National Commission, has therefore observed:- "Counsel for the respondent states that the appeal has already been disposed of by the State Commission, Orissa which is disputed by the petitioner."

THUS, it is evident that the revision petitioners had neither kept themselves informed about the developments before the State Commission nor had cared to keep the State Commission informed about the progress of the matter in the National Commission. Consequently, the order of the National Commission came to be passed on 19.5.2011, when the State Commission had already disposed of the matter, a month earlier on 18.04.2011.

FROM the details examined above, we are of the view that the revision petitioners are victim of their own lapse. It is held that the State Commission had given the petitioners sufficient opportunity before dismissing the appeal for non-prosecution. We find no grounds to interfere with the order of the State Commission. The revision petition No.2290 of 2011 is consequently dismissed and the order of the State Commission is confirmed. There are no order as to costs.