TINA HANS Vs. ROCKLAND LEASING LTD

JUDGEMENT

(1.) This order will dispose of a bunch of miscellaneous applications bearing Nos.145, 147, 149, 151, 153 and 155, all of 2000. All these applications have been moved for recalling the order passed by this Commission in respective appeals bearing Nos.207, 208, 203, 205, 204 and 206. All these miscellaneous applications involve consideration of the matter regarding the condonation of delay in approaching this Commission for moving the application for setting aside ex-parte order dated 11.1.2000 passed in respective appeals, by this Commission. At the time of hearing all these applications, the question of maintainability of the application for setting aside ex-parte order passed in appeal came up for consideration. The question of limitation apart, in case the application is not maintainable in law seeking the setting aside of the ex-parte order passed by this Commission in appeal, the same has to be dismissed on that score as being legally not maintainable.

(2.) A careful perusal of the order passed by this Commission in appeal arising out of the complaint case filed before the District Consumer Disputes Redressal Forum-II, U. T. , Chandigarh (for short hereinafter referred to as the District Forum-II) will go to show that this Commission decided the appeal on merit though ex-parte against the applicant. It is now well settled by the Hon'ble Supreme Court that the Consumer Disputes Redressal Forum or Commission cannot consider such an application for setting aside ex-parte order as the Consumer Protection Act, 1986 (for short hereinafter referred to as the C. P. Act) has not provided any such power to the District Forum or the State Commission to recall, review or set aside a reasoned order though ex-parte. The Hon'ble Supreme Court has in the case of Jyotsana Arvindkumar and Ors. V/s. Bombay Hospital Trust,1999 0 CPJ 1, held that the State Commission, however, fell into an error in not bearing in mind that the act under which it is functioning has not provided that any jurisdiction to set aside the ex-parte reasoned order. The Hon'ble Supreme Court cited the judgment of the Bihar State Commission in Chief Manager, U. C. O. Bank V/s. Ram Govind Agarwal, 1996 1 CPJ 305, and another judgment of the Hon'ble National Commission in Director, Forest Research Institute V/s. M/s. Sunshine Enterprises and Anr., 1997 1 CPJ 64, which laid down that the redressal agencies under the C. P. Act had no power to recall or review its ex-parte order. The relevant discussion is to be found in paras 6 of the authority reported as Jyotsana Arvindkumar and Ors., which reads as under : "6. It is under these circumstances, the present appeals came to be filed. 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, U. C. O. Bank V/s. Ram Govind Agarwal, 1996 2 CPC 284, and the other passed by the National Commission in Director, Forest Research Institute V/s. M/s. Sunshine Enterprises and Anr., 1997 1 CPC 438, holding that the redressal agencies have no power to recall or review its 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 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 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 to 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, 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. The National Commission, as noticed earlier, dismissed the revisions in limine without going into the merits. " Subsequently, the Hon'ble National Commission also considered this matter and noticed the judgment of the Hon'ble Supreme Court in Jyotsana Arvindkumar and Ors., and held that the C. P. Act has also not specifically conferred any power to recall an ex-parte order upon the National Commission nor any power of review has been given to the National Commission. In para 2 of the judgment, the Hon'ble National Commission considered another authority Indian Bank V/s. Satyam Fibres (India) Pvt. Ltd.,1996 2 CPC 287 (SC), but followed the law laid down by the Hon'ble Supreme Court in the case of Jyotsana Arvindkumar and Ors. It is evident that in all these cases, the judgment of this Commission which is sought to be recalled by means of these applications were passed on merit and are reasoned orders, though passed ex-parte qua the applicants. Since this Commission has no jurisdiction to review, recall and set aside the well reasoned order though passed ex-parte, we find that these applications are legally not maintainable and the applications deserve to be dismissed on the ground of non-maintainable. The applicants, if so advised, may approach appropriate Forum i. e. the Hon'ble National Commission by means of filing an appropriate appeal. Resultantly, the Miscellaneous Application Nos.145, 147, 149, 151, 153 and 155, all of 2000 are dismissed as being not maintainable. Let copies of this order be placed on the file of connected cases. Applications dismissed.