State Consumer Disputes Redressal Commission
Vodafone Idea Ltd. And Others vs Ms. Angelina J. Brar And Others on 19 January, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
Revision Petition No.78 of 2022
Date of Institution : 17.11.2022
Date of Decision : 19.01.2023
1. M/s Vodafone Idea Ltd., A Limited Company incorporated
under the provisions of the Companies Act, 1956, having its
registered office at Suman Towers, Plot No.18, Sector 11,
Gandhinagar, Gujarat, through its Authorized Signatory Mr.
Manoj Madan, aged 44 years.
2. Vodafone Idea Limited, Circle Office, C-105, Industrial Area,
Phase VII, SAS Nagar, Mohali, Punjab, through its Authorised
Signatory Mr. Manoj Madan.
3. Vodafone Idea Limited, Local Office, Jalandhar, near V Mart on
Nakodar Road, Jalandhar, through its Authorised
Representative.
.....Petitioners
Versus
1. Angelina J. Brar, daughter of Sh. Joseph Brar, R/o H.No.7, K.P.
Nagar, Near Durga Shakti Mandir, Deol Nagar, Jalandhar.
.....Respondent
Revision Petition under Section 47 of
Consumer Protection Act, 2019 for setting
aside the orders dated 29.04.2022 and
12.10.2022 passed by the District
Consumer Disputes Redressal
Commission, Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the petitioners :Sh. Abhishek Sharma, Advocate For the respondent :Sh. Joy, Advocate 2 Revision Petition No.78 of 2022
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The petitioners/opposite parties No.1-3 i.e. M/s K.C. Lifestyle Agencies, through its Authorized Representative Mr. Manoj Madan and others have filed the present Revision Petition under Section 47 of the Consumer Protection Act, 2019 (in short the "Act") for setting aside the impugned orders dated 29.04.2022, whereby the petitioners were proceeded exparte, and 12.10.2022 passed by the District Commission in C.C. No.52 of 2022, whereby their application filed under Section 40 of the Act has been dismissed.
2. There was a delay of 112 days in filing of the Revision Petition. M.A. No.1549 of 2022 was filed by the petitioners for condonation of delay of 112 days in filing of the Revision Petitioner. Said M.A. was allowed vide order dated 01.12.2022 and accordingly the M.A. was disposed of.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Briefly, the facts of the case as are necessary for disposal of the present Revision Petition are that the complainant/respondent 3 Revision Petition No.78 of 2022 filed a complaint before the District Commission alleging certain allegations of 'deficiency in service' and 'unfair trade practice' on the part of the petitioners/OPs.
5. In said complaint notices were issued to the petitioners on 04.03.2022 for 13.04.2022. Thereafter, the case was adjourned to 29.04.2022 and there was no work day as observed by the District Bar Association on 13.04.2022. However, the notices were sent through registered post to the OPs and service was complete as the OPs were served as per report submitted by the Ahalmad. None appeared on behalf of the petitioners/OPs and they were proceeded against exparte by the District Commission vide order dated 29.04.2022. Thereafter an application was moved by the petitioners/OPs under Section 40 of the Act read with Order 9 Rule 7 C.P.C. and Section 151 C.P.C. for setting aside the exparte order dated 29.04.2022. Said application was disposed of by the District Commission vide order dated 12.10.2022 by permitting the petitioners to join the proceedings but had not set aside the exparte proceedings.
6. Both the order are subject matter of challenge in the present Revision Petition.
7. Mr. Abhishek Sharma Advocate, learned counsel for the petitioners submits that the petitioners were proceeded exparte without granting any opportunity to contest the complaint whereas non-appearance before the District Commission was neither willful 4 Revision Petition No.78 of 2022 nor intentional in any manner. Learned counsel also submits that the conduct of the petitioners was clear from this fact that the petitioners were interested to contest the case and because of that reason they moved an application for setting aside the exparte order immediately after knowing about the order of exparte. There was no intention of the petitioners to evade the process and to delay the proceedings. The petitioners came to know about the order as the counsel representing the petitioner informed that the petitioners had been proceeded exparte on 29.04.2022. Thereafter, immediately the application for setting aside the exparte order was filed. The application was disposed of by the District Commission by permitting the petitioners to join the proceedings only to assist the court but no opportunity was granted to file any reply/written statement to the complaint and petitioners have been deprived of their rights to contest the case on merits. Learned counsel further submits that the exparte proceedings against the petitioners were not legally valid as due to pandemic the District Commission should not have passed such order when the summons were already served for 13.04.2022 and on that day there was no working. Learned counsel has further submitted that fresh notices should have been issued in view of orders passed by the Hon'ble Supreme Court as has been held in Suo-Moto Petition pending before the Hon'ble Supreme Court with the direction not to pass any adverse orders against the parties due to restricted working. At the end, learned counsel submits that non- appearance of the petitioner will cause irreparable loss and moreover 5 Revision Petition No.78 of 2022 it was not intentional or willful in any manner but the non-appearance was due to bonafide reasons as intention was not to delay the proceedings. Learned counsel has further submitted that because of some communication gap the counsel for the petitioners could not appear before the District Commission and also to inform the petitioners about the factum of pendency of the case. The proceedings are still pending with the District Commission as the case is fixed for hearing on 20.01.2023 and petitioners are ready to compensate the party opposite.
8. Mr. Joy Advocate, learned counsel for the respondent/complainant submits that the petitioners did not appear before the District Commission intentionally and a false story has been concocted. He has further submitted that there was no restriction. The petitioners were rightly proceeded exparte as inspite of service they did not appear or engaged any lawyer. The petitioners were proceeded exparte on 29.04.2022 and there was a delay on their part in filing the present Revision Petition whereas the application for setting aside the exparte order was filed after a long period and that too without moving any application for condonation of delay.
9. Heard the arguments of learned counsel for both the parties. We have also carefully perused the orders dated 29.04.2022 and 12.10.2022 passed by the District Commission. 6 Revision Petition No.78 of 2022
10. Facts relating to filing of complaint by the complainant before the District Commission and issuance of notices to the OPs and passing of exparte order dated 29.04.2022 as well as order dated 12.10.2022 which are under challenge in the present Revision Petition are not in dispute. It is also not in dispute that the complaint is still pending and the petitioners are ready to compensate the respondent/complainant in monetary terms.
11. It is also the argument of the petitioners that the because of bonafide reason the counsel could not appear before the District Commission on 29.04.2022. It is a settled proposition of law that party should not suffer because of fault of the counsel as has been held by the Hon'ble Supreme Court in judgments of cases "Rafiq & Another vs. Munshilal & Another" AIR 1981 SC 140 and "Smt. Lachi & others vs. Director of Land Records & Others" AIR 1984 SC 41. The Hon'ble Supreme Court in above cases observed as under:
"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
12. The Order 9 Rule 7 of the Code of Civil Procedure (CPC), provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.--7
Revision Petition No.78 of 2022 Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
13. The Hon'ble Punjab and Haryana High Court in a case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) and the relevant para No.8 of the judgment is reproduced as under:-
"8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
14. The power of the Court to set aside ex parte order can be by imposing costs by which the Court can put the party on certain terms as spelled out from the expression "upon such terms as the Court directs as to costs or otherwise".
15. The Hon'ble Supreme Court of India in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-8
Revision Petition No.78 of 2022 parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex-parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."
16. In view of facts and the judgments as mentioned above and in the interest of justice to prevent the miscarriage of justice and also to meet the ends of justice one more opportunity is granted to the petitioners to put up their case before the District Commission by setting aside the exparte proceedings dated 29.04.2022 and the interim impugned order dated 12.10.2022 but subject to payment of costs of Rs.5000/- to the respondent/complainant and moreover no prejudice would be caused to respondent/complainant. Otherwise also, the natural justice demands that no one should be left unheard and adequate opportunity is required to be granted to the parties to the case.
17. Accordingly, the revision petition is allowed and the exparte order dated 29.04.2022 and interim order dated 12.10.2022 passed by the District Commission are set aside, subject to payment of costs of Rs.5000/- to be paid on the next 9 Revision Petition No.78 of 2022 date of hearing i.e. 20.01.2023 before the District Commission by the petitioners to the respondent/complainant. The District Commission is directed to allow the petitioners/OPs No.1-3 to join the proceedings by affording one opportunity not only to plead their case by filing reply but also to lead evidence in support of their defence after hearing the parties and the case be decided on merits in accordance with law.
18. The parties are directed to appear before the District Commission on 20.01.2023. The copy of this order be also sent to the District Commission.
19. Since the main case is decided, the pending applications, if any, are also disposed of.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER January 19, 2023 (MM)