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CASE NO.: Appeal (civil)  4307 of 2007

PETITIONER: Rajeev Hitendra Pathan & Ors

RESPONDENT: Achyut Kashinath Karekar & Anr

DATE OF JUDGMENT: 17/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.        4307 OF 2007 (Arising out of SLP (C) No. 2967 of 2006)

 Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by the  National Consumer Disputes Redressal Commission, New  Delhi (in short ’National Commission’) holding that the State  Commission has the power to restore the complaint which was  dismissed for default. For coming to the aforesaid conclusion  the National Commission relied upon the decision of this  Court in New India Assurance Co. Ltd. v. R. Srinivasan (2000  (3) SCC 242).

3.      Learned counsel for the appellant submitted that the  view contrary to what has been stated in New India  Assurance’s case (supra) has been taken in Jyotsana  Arvindkumar Shah and Ors. v. Bombay Hospital Trust (1999  (4) SCC 325). Further, Consumer Protection Act, 1986 (in  short the ’Act’) was amended in 2003 and by the newly  introduced Section 22A, National Commission was given  power of restoration but no such power has been conferred on  the State Commission.

4.      Learned Counsel for the respondents on the other hand  submitted that the National Commission has referred the case  to the factual position and, therefore, held that restoration was  permissible.  

5.      In Jyotsana’s case (supra) it was observed at para 7 as  follows:

"We heard learned Counsel on both sides for  quite some time. When we asked the learned  Counsel appearing for the respondent to point  out the provision in the Act which enables the  State Commission to set aside the reasoned  order passed, though ex parte, he could not lay  his hands on any of the provisions in the Act.  As a matter of fact, before the State  Commission the appellants brought to its  notice the two orders, one passed by the Bihar  State Commission in Chief Manager, UCO

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Bank v. Ram Govind Agarwal 1996 (1) CPR  351 and the other passed by the National  Commission in Director, Forest Research  Institute v. Sunshine Enterprises 1997 (1) CPR  42 holding that the redressal agencies have no  power to recall or review their ex parte order.  The State Commission had distinguished the  above said orders on the ground that in those  two cases the opponents had not only not  appeared but also failed to put in their written  statements. In other words, in the case on  hand, according to the State Commission, the  opponent (respondent) having filed the written  statements, the failure to consider the same by  the State Commission before passing the order  would be a valid ground for setting aside the  ex parte order. The State Commission,  however, fell into an error in not bearing in  mind that the Act under which it is functioning  has not provided it with any jurisdiction to set  aside the ex parte reasoned order. It is also  seen from the order of the State Commission  that it was influenced by the concluding  portion of the judgment of the Bombay High  Court to the effect that the respondent (writ  petitioner) could approach the appellate  authority or make an appropriate application  before the State Commission for setting aside  the ex parte order, if permissible under the  law. Here again, the State Commission failed  to appreciate that the observation of the High  Court would help the respondent, if  permissible under the law. If the law does not  permit the respondent to move the application  for setting aside the ex parte order, which  appears to be the position, the order of the  State Commission setting aside the ex parte  order cannot be sustained. As stated earlier,  there is no dispute that there is no provision in  the Act enabling the State Commission to set  aside an ex parte order."

6.      Subsequently, in New India Assurance’s case (supra) this  Court appears to have taken a different view as it is evident  from what has been stated in paragraph 18, the same reads as  follows: "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 or the judicial or quasi  judicial body is 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 a  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

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cause being shown for the non-appearance of  the complainant."

7.      In the latter case i.e. New India Assurance’s case (supra)  reference was not made to the earlier decision in Jyotsana’s  case (supra).  Further the effect of the amendment to the Act  in 2003 whereby Section 22(A) was introduced has the effect of  conferment of power of restoration on National Commission,  but not to the State Commission. In view of the divergence of  views expressed by coordinate Benches, we refer the matter to  a larger Bench to consider the question whether the State  Commission has the power to recall the ex parte order.   Records be placed before the Hon’ble Chief Justice of India for  appropriate orders.