State Consumer Disputes Redressal Commission
Nipun Sharma vs G.L.C. Members Co-Operative Society on 21 October, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.366 of 2021
Date of institution : 14.10.2021
Date of decision : 21.10.2021
Nipun Sharma S/o Sh. Suresh Kumar Sharma, R/o House No.585,
Phase IV, Mohali, Punjab.
....Appellant/Complainant
Versus
G.L.C. Members Cooperative House Building Society Ltd., through its
Secretary Mr. Bali Singh Chatha S/o Mr. Gurdeep Singh, Co-operative
Homes Opposite Multitech Tower JLPL, Sector-91, Mohali.
.....Respondents/Opposite Parties
First Appeal against the order dated
01.09.2021 passed by the District Consumer
Disputes Redressal Commission, S.A.S.
Nagar, Mohali.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Urvashi Agnihotri, Member
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 Argued by:-
For the appellant : Sh. Ravi Inder Singh, Advocate ..................................................................................
JUSTICE DAYA CHAUDHARY, PRESIDENT Complainant Nipun Sharma has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short "The Act") being aggrieved by order dated 01.09.2021 passed in Consumer First Appeal No.366 of 2021 2 Complaint No.1847/2020 titled as "Nipun Sharma Vs. G.L.C. Members Cooperative House Building Society Ltd. & others" by the District Consumer Disputes Redressal Commission, S.A.S. Nagar, Mohali (hereinafter called as "The District Commission") with the prayer for setting aside the said order dated 01.09.2021, as the same has been passed without giving any reasoning. The said order has been challenged on the ground that the District Commission has set aside ex-part order without having any jurisdiction. In support of his submissions, learned counsel for the appellant/complainant has relied upon judgments of the Hon'ble Supreme Court of India, of cases "Rajeev Hitendra Pathan & others Versus Achyut Kashinath Karekar & another", Civil Appeal No.4307 of 2007, date of decision 19.08.2011 and "Lucknow Development Authority Vs. Shyam Kapoor" Civil Appeal No.936 of 2013, date of decision 05.02.2013.
2. Heard arguments of learned counsel for the appellant/complainant. We have also perused orders dated 30.03.2021 and order dated 01.09.2021.
3. The issue involves in the present appeal is as to whether the District Commission has jurisdiction to set aside its own exparte order or not?
4. The complaint came up for hearing on 30.03.2021 and OP No.1/respondent did not appear and it was proceeded against ex-parte by the District Commission, vide order dated 30.03.2021, which is reproduced as under:-
First Appeal No.366 of 2021 3
"As per office report notice issued to OP on 22.01.2021 through registered post. However, neither the registered cover nor the AD received back. Period of 30 days has elapsed. Case called several times during the day. None appeared on behalf of the OP. It is 4.00 P.M. by drawing presumption of due service and none having appeared for the OP, therefore, the OP is proceeded against ex-parte. Put up for 10.08.2021."
OP No.1/respondent moved an application for setting aside ex-parte order dated 30.03.2021 and the same was allowed, vide order dated 01.09.2021, which is also reproduced as under:-
"Amended title filed. Same is taken on the record. At this stage Ld. Counsel for the OP has filed an application for setting aside ex-parte order dated 30.03.2021 and the same is perused. I feel that no party should be condemned unheard and if allowed to join, the matter can be compromised and can be decided early. Application is allowed. Written version filed by OP No.1. Same is taken on the record. Sh. Lovejit Singh, Inspector appeared for OP Nos.2 and 3. Put up for 15.09.2021 fo filing written version by OP Nos.2 and 3 and compromise."
The appellant/complainant has challenged the impugned order dated 01.09.2021. The relevant provision of Section 40 of the Act is re- produced as under:-
"40. The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order."
5. In view of said provision, we are of the considered opinion that the District Commission has set aside its own exparte order First Appeal No.366 of 2021 4 without saying anything regarding any error apparent on the face of record, which is contrary to the provision of Section 40 of the Act. Moreover, the District Commission has not recorded any finding in the impugned order dated 01.09.2021 that the said the said application was filed within 30 days of such order, as the exparte order was passed on 30.03.2021. It is also pertinent to mention that the ex-parte order dated 30.03.2021 was passed by the majority opinion i.e. the President and one Member of the District Commission, but while setting aside the said ex-parte order, there was no majority, as the same was passed/signed by the President. The controversy is squarely covered by the judgment of the Hon'ble Supreme Court in Rajeev Hitendra Pathak's case (supra) wherein it was held that "the State Commission or District Consumer Forum have no power to set aside their own ex-parte orders". Paras 36, 37, 38 and 39 of said judgment are relevant, which are reproduced as under:-
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against First Appeal No.366 of 2021 5 dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. 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.
39. 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. 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."
6. The same issue was also there before the Hon'ble Supreme Court in judgment of case Lucknow Development Authority's case (supra), wherein earlier judgment of Supreme Court of case Rajeev Hitendra Pathak's case (supra) was relied and it was held that "The District Forum and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressely given by the Statute cannot be exercised."
7. In view of our above discussion, the impugned order is without jurisdiction and competency, which is bad in law. Accordingly, the present appeal is allowed in limine and order dated 01.09.2021 is First Appeal No.366 of 2021 6 set aside with the direction to the District Commission to proceed with the complaint and decide the same expeditiously as possible preferably within a period of three months from the date of receipt of the copy of the order passed by this Commission.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (URVASHI AGNIHOTRI) MEMBER October 21, 2021.
MM First Appeal No.366 of 2021 7 No doubt that the power to review any order has been vested in the District Commission, if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order. But after perusal of impugned order