State Consumer Disputes Redressal Commission
Punjab College Of Education, vs Sunil Kumar Garg on 1 December, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.971 of 2011
In
First Appeal No.852 of 2004.
Date of Institution: 11.04.2011.
Date of Decision: 01.12.2011.
Punjab College of Education, Village Raipur, Post Office Bahadurgarh,
District Patiala through its Principal.
.....Applicant/Appellant.
Versus
1. Sunil Kumar Garg S/o Sh. Dal Chand, Resident of St. No.5,
H.No.3667, Nai Abadi, Abohar, District Ferozepur.
2. Co-ordinator, B.Ed. Entrance Test, 2003, Guru Nanak Dev
University, Amritsar.
3. Vice Chancellor, Punjabi University, Patiala.
...Respondents.
Misc. Application under Order 9 Rule 9 read
with Section 151 CPC for restoration of First
Appeal no.852 of 2004 dismissed in default
vide order dated 10.08.2010 by this
Commission.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the applicant/appellant : Sh. Kulbir Dalal, Advocate. For respondent no.1 : Sh. Munish Goel, Advocate.
For respondent no.2 : None.
For respondent no.3 : Sh. Anshul Joy, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of the following sixteen (16) Miscellaneous Applications for restoration of appeals, as the question of law and facts involved in all the applications are the same:-
Sr.No. Application Number Parties Name
1. M.A. No.971 of 2011 Punjab College of Education Vs
In F.A. No.852 of 2004 Sunil Kumar Garg & Ors.
Misc. Appl. No.971 of 2011 2
In
First Appeal No.852 of 2004
2. M.A. No.1005-A of 2011 Harvinder Singh Vs Batra Motors
In F.A. No.1279 of 2009 & Anr.
3. M.A. No.2044 of 2011 Jagjit Singh Vs P.S.E.B.
In F.A. No.1578 of 2006
4. M.A. No.2075 of 2011 Birla Sun Life Ins. Co. Vs
In F.A. No.362 of 2011 Gajinder Singh.
5. M.A. No.2165 of 2011 M/s Ricoh India Ltd. Vs
In F.A. No.1150 of 2006 Kiran Bala.
6. M.A. No.2300 of 2011 Jatinder Pal Vs Dhillan Cold Drinks
In F.A. No.1452 of 2006 & Ors.
7. M.A. No.2659 of 2011 Panjab University Vs Late
In F.A. No.3452 of 2010 Kushaldeep Singh through LRs.
8. M.A. No.2315 of 2011 Midha Textile Inds. Vs
In F.A. No.647 of 2006 P.S.E.B. & Ors.
9. M.A. No.2927 of 2010 PSEB Vs Daljeet Singh
In F.A. No.797 of 2005
10. M.A. No.2494 of 2011 Paramjit Kaur Vs National Ins.
In F.A. No.1336 of 2006 Co. Ltd. & Ors.
11. M.A. No.1503 of 2011 Mangal Sain Rakesh Kumar Vs
In F.A. No.339 of 2006 Gurnam Singh.
12. M.A. No.1548 of 2011 Bareta Auto Enterprises Vs
In F.A. No.1202 of 2006 Harjinder Singh
13. M.A. No.2137 of 2011 Devinder Jain & Ors. Vs
In C.C. No.02 of 2006 ELL ESS Diagno Scan & Imaging
Research Centre (P) Ltd. & Ors.
14. M.A. No.2246 of 2011 The Hoshiarpur Coop. Cold Store
In F.A. No.301 of 2006 Ltd. Vs Munish Vij & Ors.
15. M.A. No.2566 of 2011 L & T Finance Limited & Anr.Vs
In F.A. No.742 of 2008 Harbhajan Singh.
16. M.A. No.2584 of 2011 Yashpal Rai Suri Vs
In F.A. No.1089 of 2010 United India Insurance Co. Ltd.
2. The applicants in all the above cases have filed the applications for restoration of the appeals dismissed in default.
3. The facts giving rise to filing of the present applications are that during the pendency of the appeals, the counsel for the applicants did not appear on a number of dates or the proxy counsel were appearing and ultimately, neither the applicants nor counsels for the applicants appeared Misc. Appl. No.971 of 2011 3 In First Appeal No.852 of 2004 and the appeals were dismissed in default and the application for restoration of appeals were filed.
4. The common prayer in all these applications is that the appeals dismissed in default may be restored.
5. On notice, some of the respondents have filed the reply, pleading that the dismissal of the appeals for want of prosecution was legal and on valid grounds and reasons, as the appearance was not put in for a number of dates by the applicants or counsel for the applicants. There is no ground/provision to restore the appeals dismissed in default and the applications may be dismissed.
6. We have gone through the pleadings of the parties qua restoration of appeal, heard the counsels for the parties at length in all the applications and have gone through the record carefully.
7. It was contended on behalf of the applicants that the exparte order passed by the Hon'ble National Commission can be set aside by the Hon'ble National Commission, as provided under Section 22A of the Consumer Protection Act (hereinafter called as "the Act"), but it is applicable only to the complaints pending before the Hon'ble National Commission. U/s 18, the 'Procedure Applicable to the State Commission' is provided and the provisions of Sections 12,13 and 14 of the Act and the rules made thereunder are applicable to the disposal of disputes by the State Commission and again these provisions are applicable to the complaints only and not to the appeals. The appeals dismissed in default can be restored on the same grounds, as is provided under the Civil Procedure Code. The order passed for dismissal of the appeal is not at par with the exparte order passed on merits and it is only interlocutory order and there being sufficient grounds for non-appearance, the appeal can be restored.
8. It was further contended that Section-19A deals with the provisions for hearing of appeals and a mandate has been given that the State Commission shall finally dispose of the appeal within a period of 90 Misc. Appl. No.971 of 2011 4 In First Appeal No.852 of 2004 days from the date of its submission. It was argued that the rules of procedure are hand-made of justice and the rules are to promote justice and not to create hindrances in the path of the justice and the interest of justice demands that the matter should be decided on merits and there is no specific bar for restoring the appeal dismissed in default.
9. It was further contended that that the definition U/s 2 (n) gives the meaning of "prescribed" and U/s 18, the word "modification" has been used. Hon'ble Supreme Court in case "Commissioner of Income Tax Vs S. Chenniappa Mudaliar, Madurai", AIR-1969-1068, was dealing with similar question of law and under the Income Tax Act, 1922 and Appellate Tribunal Rules, 1946, there was no provision for restoration of the appeal dismissed in default and it was held that the Tribunal is bound to give a proper decision on question of fact as well as law which can only be done if the appeal is disposed of on merits. It has been contended that the Hon'ble Supreme Court in case "C.Vekatachalam Vs Ajit Kumar C. Shah & Ors.", Civil Appeal No.868 of 2003 decided on 29th August, 2011 was dealing with the complaint cases only and the ratio of the law laid down by the Hon'ble Supreme Court in the said case is not applicable to the appeals and especially for restoration of appeals. It was argued vehemently that the State Commission or the Hon'ble National Commission is a Court within the meaning of the Act and has the power to restore on the analogy that once the Court has the power to dismiss in default, it has the power to restore the case/appeal and to decide the same on merits.
10. It was also argued that the Hon'ble Supreme Court in its latest judgment in case 'Rajeev Hitendra Pathak' (supra) has upheld the order passed by the State Commission of Maharashtra, restoring the complaint and recalling the dismissal of order dated 09.09.2004 and the complaint or appeals can be restored, if dismissed in default. It has been contended that the ex-parte orders or other orders passed on merit cannot be reviewed or Misc. Appl. No.971 of 2011 5 In First Appeal No.852 of 2004 recalled, but the interlocutory orders can be recalled in the interest of justice.
11. On behalf of the respondents, it has been contended that it is only the Hon'ble National Commission, who has been empowered U/s 22A of the Act, to set aside the exparte orders or to review or recall the orders and the State Commission has no power to do so. The Hon'ble Supreme Court in "Rajeev Hitendra Pathak & Ors. Vs Achyut Kashinath Karekar & Anr.", 2011 (4) RCR (Civil)-175, in clear terms, gave the dictum that the State Commission or the District Forums have no power to set aside their own exparte orders, nor they have the power to review their own orders and the said power vests in the Hon'ble National Commission only. The Hon'ble Supreme Court approved the ratio of the law laid down in "Jyotsana Arvindkumar Shah Vs Bombay Hospital Trust", JT 1999(5)-228 and the Division Bench of three judges of the Hon'ble Supreme Court has not approved the ratio of law laid down in case "New India Assurance Co. Ltd.
Vs S. Srinivasan", 2000(3) SCC-242. It has been argued that the applications being without any merit may kindly be dismissed.
12. We have considered the respective submissions made by the learned counsel for the parties and have gone through the case law and authorities cited by the parties at length.
13. On the very outset, we would like to observe that the law laid down by the Hon'ble Supreme Court in case "Commissioner of Income Tax" (Supra) is not applicable to the facts and circumstances of the present case, because the provisions of the Consumer Protection Act have been interpreted by the Hon'ble Supreme Court in a number of judgments and there remains no ambiguity in interpreting the provisions of the said Act. No doubt, U/s 18 of the Act, the provisions of Sections 12, 13 and 14 of the Act and the rules made thereunder have been made applicable to the disposal of appeals by the State Commission and the perusal of the same minutely shows that the same are applicable to the complaints only. The contention Misc. Appl. No.971 of 2011 6 In First Appeal No.852 of 2004 raised on behalf of the applicants that the appeals dismissed in default or the complaints dismissed in default can be restored, by applying the provisions of Civil Procedure Code is not tenable because the provisions of Civil Procedure Code have been made applicable to the limited extent, as provided U/s 13(4) of the Act and the provisions of Order 9 CPC have not been made applicable to the procedure as prescribed under the Act.
14. Sector 19-A deals with the procedure for 'hearing of appeals' and the mandate given in this Section for disposal of appeals within a period of 90 days does not apply to the cases i.e. complaints or appeals dismissed in default.
15. The Punjab Consumer Protection Rules, 1987 which are called as Consumer Protection (Punjab) Rules, 1987 deal with the procedure for hearing appeals with reference to Section-15 of the Act and Rule-8 provides the procedure regarding appeals for dismissing in default or deciding on merits. The relevant sub-rule for the purpose of appeals is Sub- rule-6 i.e. Rule-8 (6) which provides as follows:-
"On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorized agents to appear before the State Commission. If appellant or his authorized agent fails to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or decide it on merit of the case. If the respondent or his authorized agent fails to appear on such date, the State Commission shall proceed ex-parte and shall decide the appeal ex-parte on merits of the case".
16. This rule read with section 15 of the Act empowers the State Commission, either to dismiss the appeal or decide it on merits of the case, as the case may be, if the appellant or his authorized agent fails to appear on the date fixed for hearing.
17. There is no provision under the Act which provides for recalling or reviewing its own orders by the State Commission. Way back in Jyotsna's case (Jyotsana Arvindkumar Shah Vs Bombay Hospital Misc. Appl. No.971 of 2011 7 In First Appeal No.852 of 2004 Trust", JT 1999(5)-228, the Hon'ble Supreme Court in para-7(relevant portion) observed as follows:-
"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".
18. Thereafter, the Hon'ble Supreme Court in case "New India Assurance Company Limited Vs S. Srinivasan", 2000(1)CLT-414(SC), in Para No.18(relevant portion), observed as follows:-
"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".
19. As there was divergence of views by the two decisions of the Hon'ble Supreme Court, the matter was referred to the Division Bench of three Judges of the Hon'ble Supreme Court and the Hon'ble Supreme Court in its latest decision in case 'Rajeev Hitendra Pathak & Ors.' (supra) discussed both the above judgments and settled the law, by observing in para-38 as follows:-
"In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained".
20. During the arguments, last lines of para-39 of the said judgment were relied upon by one of the counsels for the applicants, wherein the Hon'ble Supreme Court, agreeing with the findings of the Hon'ble National Commission, held that the complaint no.473 of 1999 be restored in its original number for hearing in accordance with the law. Relying upon these two lines, it was vehemently argued that the State Commission can recall its orders and restore the complaints/appeals. Misc. Appl. No.971 of 2011 8
In First Appeal No.852 of 2004
21. We are afraid that this argument on behalf of the applicants is again not tenable, because before the Hon'ble Supreme Court, there were two appeals, one was Civil Appeal No.4307 of 2007 and the other was against the order passed in Misc. Petition No.1 of 2001 in Original Petition no.110 of 1993. It will be pertinent to pinpoint here that two different situations were dealt with by the Hon'ble Supreme Court in two different matters. In Civil Appeal No.4307 of 2007, the facts as per paras-6 & 7 were as follows:-
"6. State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 09.09.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 09.09.2004 order and consequently the State Commission recalled the order dated 09.09.2004 and restored the complaint.
7. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission:
firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court".
22. The Hon'ble Supreme Court in para-39, while disposing the said Civil Appeal No.4307 of 2007, observed as follows:-
"In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section-22 and introduction of Section 22A in the Act in the year 2002 by which, the power of review or recall has vested with the National Commission only".
23. The other part of the order dealt with the order passed on 12.07.2001 in Misc. Petition No.1 of 2001 in Original Petition No.110 of 1993 and regarding that, the following order was passed:- Misc. Appl. No.971 of 2011 9
In First Appeal No.852 of 2004 "However, we agree with the findings of the National Commission, holding that the complaint no.473 of 1999 be restored to its original number for hearing in accordance with law".
24. From the above discussion, it is clear that the Hon'ble Supreme Court set aside the findings of the Hon'ble National Commission in which it was held that the State Commission can review its own orders and it was further held that after the amendment in Section-22 and introduction of Section 22A in the Act, the power of review or recall is vested with the Hon'ble National Commission only. The other part of the order, as discussed above, related to complaint no.473 of 1999 pending before the Hon'ble National Commission. The Hon'ble Supreme Court has very vividly held that the ratio of law laid down in Jyotsana's case is the correct law and the view taken in the later decision in New India Assurance Co. Ltd. is untenable and cannot be sustained. Thus, the Division Bench of three Judges of the Hon'ble Supreme Court has upheld the view taken by the Hon'ble Supreme Court in Jyotsana's case and has further settled the law once for all and now the State Commission has no power to recall or review the orders passed by it.
25. The legislature in its wisdom has conferred the powers U/s 22A of the Act on the Hon'ble National Commission alone to recall or review its own orders and no such power is vested with the State Commission or the District Forum. The law laid down by the Hon'ble Supreme Court in "C.Vekatachalam Vs Ajit Kumar C. Shah & Ors". (supra) is not applicable to the facts and circumstances of the present case, more so, in view of the law laid down, particularly under the Act, by the three Judges' Division Bench of the Hon'ble Supreme Court.
26. In view of the above discussion, all the applications filed by the applicants for restoration of the appeals dismissed in default, are without any merit and are dismissed. No order as to costs.Misc. Appl. No.971 of 2011 10
In First Appeal No.852 of 2004
27. The applicant-Punjab College of Education in F.A. No.852 of 2004 had deposited an amount of Rs.11,500/- with this Commission at the time of filing of the said appeal on 26.07.2004, a sum of Rs.1500/- vide receipt dated 30.07.2004 and 12,000/- and Rs.1000/- in compliance of the order dated 20.01.2005 passed by this Commission. All these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
28. The applicant had deposited a sum of Rs.1000/- in compliance of the order dated 28.04.2011. This amount with interest accrued thereon, if any, be remitted by the registry to the applicant by way of a crossed cheque/demand draft after the expiry of 45 days.
29. The arguments in the applications at serial no.1 to 8 were heard on 18.11.2011 and the orders were reserved.
30. The arguments in M.A. No.2927 of 2011 in F.A. No.797 of 2005 (PSEB Vs Daljeet Singh) at serial no.9 were heard on 22.11.2011 and the order was reserved.
31. The arguments in M.A. No.2494 of 2011 in F.A. No.1336 of 2006 (Paramjit Kaur Vs National Ins.Co.Ltd. & Ors.) at serial no.10 were heard on 23.11.2011 and the order was reserved.
32. The arguments in applications at serial no.11 to 16 were heard on 28.11.2011 and the orders were reserved:-
33. Now the orders in all the applications be communicated to the parties concerned.
34. The applications could not be decided within the stipulated timeframe due to heavy pendency of court cases.
34. Copy of this order be placed in the following applications:-
2. M.A. No.1005-A of 2011 Harvinder Singh Vs Batra Motors In F.A. No.1279 of 2009 & Anr.
3. M.A. No.2044 of 2011 Jagjit Singh Vs P.S.E.B. In F.A. No.1578 of 2006 Misc. Appl. No.971 of 2011 11 In First Appeal No.852 of 2004
4. M.A. No.2075 of 2011 Birla Sun Life Ins. Co. Vs In F.A. No.362 of 2011 Gajinder Singh.
5. M.A. No.2165 of 2011 M/s Ricoh India Ltd. Vs In F.A. No.1150 of 2006 Kiran Bala.
6. M.A. No.2300 of 2011 Jatinder Pal Vs Dhillan Cold Drinks In F.A. No.1452 of 2006 & Ors.
7. M.A. No.2659 of 2011 Panjab University Vs Late In F.A. No.3452 of 2010 Kushaldeep Singh through LRs.
8. M.A. No.2315 of 2011 Midha Textile Inds. Vs In F.A. No.647 of 2006 P.S.E.B. & Ors.
9. M.A. No.2927 of 2010 PSEB Vs Daljeet Singh In F.A. No.797 of 2005
10. M.A. No.2494 of 2011 Paramjit Kaur Vs National Ins.
In F.A. No.1336 of 2006 Co. Ltd. & Ors.
11. M.A. No.1503 of 2011 Mangal Sain Rakesh Kumar Vs In F.A. No.339 of 2006 Gurnam Singh.
12. M.A. No.1548 of 2011 Bareta Auto Enterprises Vs In F.A. No.1202 of 2006 Harjinder Singh
13. M.A. No.2137 of 2011 Devinder Jain & Ors. Vs In C.C. No.02 of 2006 ELL ESS Diagno Scan & Imaging Research Centre (P) Ltd. & Ors.
14. M.A. No.2246 of 2011 The Hoshiarpur Coop. Cold Store In F.A. No.301 of 2006 Ltd. Vs Munish Vij & Ors.
15. M.A. No.2566 of 2011 L & T Finance Limited & Anr.Vs In F.A. No.742 of 2008 Harbhajan Singh.
16. M.A. No.2584 of 2011 Yashpal Rai Suri Vs In F.A. No.1089 of 2010 United India Insurance Co. Ltd.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member December 01, 2011.
(Gurmeet S)