State Consumer Disputes Redressal Commission
Shri Suresh Harishchandra Koparkar vs Shri Vishram K. Munde on 15 December, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal no.842/2009 Date of Filing: 12/06/2009 Consumer Complaint No.203/1999 District Consumer Forum: Thane Date of Order: 15/12/2009 1. Shri Suresh Harishchandra Koparkar, Appellants (Gurudev Developers) (Org.Opp.Parties) HAri Niwas, Bhandup Village, Bhandup (E), Mumbai-400 078. 2. Shri Vishram K. Munde, (Gurudev Developers) Survesh, 3rd floor, Rambhau Mahalgi Marg, Thane- 400 603. V/S 1. Shri Prithviraj N. Khadke, Respondents 2. Shri Yshwant N.Khadke, 3. Shri Kailash A.Chopdekar, 4. Shri Sashikant R.Kolekar, 5. Shri Sharad V.Sane, 6. Shri Kalyanrao S. Kulkarni, 7. Shri Gokull P. Malgoankar, 8. Shri Vasant L. Kadu, 9. Shri Ramchandra B.Khadge, 10. Shri Vinayak V. Nakharekar, 11. Shri Vidyadhar G. Ghanekar, 12. Smt. Smita G.Ghanekar, 13. Shri Narayan K. Paranjape, 14. Shri Vitthal B.Khadge, 15. Shri Smt Laxmi A Annaldas, 16. Shri Ramchandra K. Jadhav, all r/at- Shri Gurudev Nagar Co-Op. Hsg Soc., Behind Mangala High School, Kopari, Thane(E)- 400 603. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Present:
Adv.Shri Rajesh Thakkar @ Adv.Shri Satyam R. Dube for appellant 1 &2.
Respondent in person.
:- ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
Heard both the sides.
This appeal is directed against the order passed by District Forum, Thane on 08/05/2009 below applications dated 19/12/2008 filed by the appellants, who are org.opp.party nos. 3 & 4 in consumer complaint no.203/1999. Factual matrix are as follows:
Consumer complaint no.203/1999 was filed by the respondent nos. 1 to 16 against the appellants/org.opp.party nos. 3 & 4 and org.opp.party nos. 1 & 2, who are not parties to the present appeal. The said complaint was decided by the District Forum on 05/11/2007. It was partly allowed. Org.Opp.party nos. 2 to 4 were directed to pay an amount of Rs.5,000/- and to bear their own costs. Org.opp.party no.s 2 to 4 were further directed that they shall comply with the deficiencies as narrated in para nos. a,b,c,e,g,h, & j of additional written arguments dated 27/09/2007. Opp.party nos. 2 to 4 were further directed that they shall pay each of the complainants/respondents nos.1 to 16 an amount of Rs.16,000/- @ 9% p.a. interest from the date of filing of the complaint. The said complaint was rejected as against opp.party no.1 as he was dead and as against orr.opp.party no.5 it was dismissed. This order was passed by the District Forum on 05/11/2007.
Till today this order of District Forum is not challenged by org.opp.party nos. 3 & 4.
Thereafter, on 19/12/2008 each of opp.party nos. 3 & 4 namely, appellant filed applications before District Forum making prayer to set aside the ex-parte order dated 05/11/2007 passed by the District Forum in consumer complaint no.203/1999 and written statement of org. opp.party nos. 3 & 4 be taken on record and thereafter, the complaint shall be decided on its own merits.
Org.complainants filed their reply on 08/05/2009 and opposed the both the applications filed by the org.opp.party nos. 3 & 4. After hearing both the parties, District Forum passed order on 08/05/2009 and rejected both the applications preferred by org.opp.party nos. 3 & 4. Being aggrieved and dissatisfied with the said order, present appeal has been filed by the org.opp.party nos. 3 & 4. Therefore, org.opp.party nos. 3 & 4 have come before this State Commission as appellants. Respondent nos. 1 to 16 are the org.complainants. It appears that since in main order which has been passed on 05/11/2007, District Forum has deleted the name of org.opp.party no.1 being dead and has also dismissed the complaint as against org. opp.party no.5, both of them are not made parties to the present appeal.
The grievance made by the both the appellants in the said application is that they were not served with the notice of complaint no.203/19999 and opp.party no.3 received information of the said complaint from one of the members of society. So far as opp.party no.4 is concerned, he states that on 04/12/2008 he received information from org.opp.party no.3 and therefore, they have filed an application making prayer that ex-parte orders which were passed by District Forum on 05/11/2007 be set aside and their written statement be accepted and thereafter, the complaint be decided on its own merits.
District Forum has found that application which is filed on behalf of the appellant no.1/Org.Opp.party no.3 was filed through power of attorney holder, namely, Sunil Kadam. However, along with the said application Sunil Kadam has not filed power of attorney. Today also no power of attorney has been shown to the State Commission by the appellant no.1 which was existing on the date of application which was made to the District Forum. We have noted that power of attorney which is annexed with the appeal memo has been prepared subsequently and therefore, inference follows that on the date on which the application was made, Sunil Kadam was not a power of attorney holder of appellant no.1/ Org.Opp.party no.3. He was also not authorized representative of appellant no.1. Therefore, it is very difficult to infer that org.opp.party no.3, namely, appellant no.1 has filed any application for the purpose of setting aside ex-parte order. Said application was therefore ultimately without any authority by the org.opp.party no.3/appellant no.1. Let the facts as it is so far as opp.party no.3 is concerned.
As we have already stated that the order dated 05/11/2007 is not a subject matter of the present appeal. However, on perusal of said order, we find that the appellants/org.opp.party nos.3 & 4 were served duly and they have failed to file the written version and under these circumstances, the District Forum has decided the complaint.
The question which requires to be considered is what is proper remedy for the appellants to challenge and set aside the order dated 05/11/2007 passed in consumer complaint no. 203/1999, more appropriately we have to consider that whenever the complaint is decided ex-parte finally whether an application before consumer Fora for setting aside the said order is tenable? The answer to this question is in the Negative for the following reasons:
District Forum while dealing with the complaint is supposed to follow the procedure as provided under Section 13 & 14 of Consumer Protection Act, 1986. It shall also follow the procedure as laid down in rules framed by Central Govt., State Government and the Regulations framed by National Commission. Section 13 (2) (b) (II) permits the District Forum to proceed ex-parte on the basis of evidence brought to its notice by the complainant, where opp.party omits and fails to take any action to represent his case within time given by the District Forum. Section 13 (2) (c) also permits District Forum where the complainant fails to appear on the date of hearing before District Forum. The District Forum may either dismiss the complaint for default or decide it on merits. Thus, the District Forum can decide the matter ex-parte on the basis of evidence brought by the complainant where opp.party fails to represents his case. District Forum can also dismiss the complaint if the complainant fails to appear on the date of hearing. If the District Forum decides the complaint in the absence of complainant on the date of hearing on merits, the remedy of such a complaint in case of dismissal of a complaint and/or as against partial rejection of the complaint is to file appeal under Section 15 of Consumer Protection Act, 1986. But in case when the complaint is dismissed for non-prosecution of the complaint on the date of hearing whether application for restoration is a permissible? This question is also akin to the question which we are considering, namely, whether an application to set aside ex-parte order passed by the District Forum against the opp.party when opp.party omits or fails to represent themselves before District Forum. So far as Section 13 & 14 are concerned, though we have noticed that power to proceed ex-parte as against the opp.party and/or to dismiss the complaint for non-prosecution given to the District Forum, yet we do not find any power given to District Forum to set aside ex-parte order or order for dismissal for default on sufficient grounds being shown for remaining absent and/or for not making any defence and therefore, such power cannot be spelled out on reading Section 13 & 14 of Consumer Protection Act, 1986. What we have to note that power to set aside the ex-parte order is only given to National Commission by Section 22 (A) of Consumer Protection Act, 1986. Such provision of Section 22 (A) is not applicable whenever the District Forum is dealing with complaint and/or when State Commission in dealing with the complaint. Therefore, absence of specific provision, we cannot find such a power with the District Forum.
The Order IX Rule 4,9 & 13 of Code of Civil Procedure , 1908 permits or empowers the civil court to restore the suit and/or set aside the ex-parte order. However, question is whether the said procedure of Order IX Rule 4,9 & 13 can be invoked by the parties to the complaint under Consumer Protection Act, 1986 whenever the complaint is dismissed for non-prosecution and/or the ex-parte order has been passed as against the opp.party, who fails or omits representation or defence before the District Forum. In this respect we have perused the provisions and sub Section 4 of Section 13 because this Section bestow some of the powers of the Civil Procedure Code in a District Forum. Those are the following powers:
(i) the summoning and enforcing the attendance of any defendant or witness and examining he witness on oath,
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits,
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
We also like to make a reference to regulations framed by Honble National Commission in 2005 and more specifically, Regulation no.26 which reads as under:
In all proceedings before the Consumer Forum, endeavor shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908:
Provide that the provisions of the Code of Civil Procedure,1908 may be applied which have been referred to in the Act or in the rules made there under.
Thus, reading the provision of Section 13(4), we only have noted that there is no reference of Order IX Rule 4,9,13 in the said provision. If Section 13(4) is read along with Regulation no.26, it follows that consumer Forum shall make endeavor to avoid use of provisions of Code of Civil Procedure Code, 1908. What is important to be noted is that National Commission gives directions to the parties and their counsels to avoid use of provisions of Code of Civil Procedure Code, 1908. The National Commission has also clarified the position of an application of Code of Civil Procedure in the proviso 2 Regulation no.26 (1) and it provides that Code of Civil Procedure, 1908 may be applied which have been referred in the Act or in the rules made there under. Thus, reading the Regulation no.26, it follows that the provision of Code of Civil Procedure, 1908 as may be permitted to be applied by the Act or the Rules may be applied. But if a particular provision from the Code of Civil Procedure, 1908 is not made applicable by the statutory provisions and/or by the rules framed by the State Government or Central Government, then such provision cannot be invoked by the parties and also by the District Forum for the purpose of deciding the complaint or any other applications. We have noted that Section 13 (4) does not provide for an application of an Order IX Rule 4,9,13. On perusal of rules framed by the State Government and Central Government, we have noted that there is no rule which provides an application of Order IX Rule 4,9 and 13. In short there is no provision in the Act, rules and regulations which permits the District Forum to set aside the final ex-parte order. District Forum is a statutory authority, creature of law and therefore, unless and until law, rules and regulations invests with such power like that of Order IX Rule 4,9,13, such power cannot be invoked, exercised by the District Forum.
Ld.Counsel for the appellant has invited our attention to a judgement reported in II (1991) CPJ 466 in the matter of Majestic Auto Ltd. & Ors. V/s. Shri K. Kant wherein it has been observed by making reference to clause no.(vi) of Sub Section 4 of Section 13 it is further provided therein that any other matter prescribed by the rules the Code of Civil Procedure shall apply. Thus, by making the reference and residuary clause of sub Section 4 of Section 13, it has been observed that the ex-parte order can be set aside. It is further observed that Commission has quasi-judicial functions and trapping of Court and that court has inherent powers to set aside the ex-parte decree ex-debito justitise, if sufficient cause is shown for no appearance by the defendant. We are not in agreement with the observation made in the said jdudgement and order. The clause (vi) of Sub Section 4 of Section 14 is as follows:
For the purposes of this Section the District Forum shall have the same powers as are vested in a civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance of any defendant or witness and examining he witness on oath,
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits,
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
Therefore, on plain reading it follows the matter from Civil Procedure Code which have been provided in clause (I) to (V) of Code of Civil Procedure Code will apply and the District Forum shall/may apply those provisions from the Code of Civil Procedure Code and lastly it has been provided in clause (VI) that any other matter which may be prescribed. Therefore under clause (VI) the other provisions from Code of Civil Procedure are required to be prescribed. The word prescribed has defined by the Consumer Protection Act, 1986 under Section 2(n) and it defines as prescribed means prescribed by the rules by the State Govt. or as the case may be by the Central Govt. under this Act. Therefore under rule making power of State Government and Central Government said respective Government shall make a rule that provision of Order IX Rule 4,9,13 are applicable to the proceedings before District Forum. If such rule is made by the Central Government and State Government then a District Forum can entertain an application under Order IX Rule 4,9,13. However, as on today when we are considering the matter there is no such rule made by the State Govt. or Central Govt. Therefore, the view taken or reflected in the above judgement is not a good law and therefore, we do not follow the said judgement and order.
Thus, viewed we find that apart from the view expressed by us, the Apex Court in the matter of Jyotsana A.Kumar Shah and Ors V/s. Bombay Hospital Trust, JT 1999 (5)SC 228 has taken the same view. Thus, we find that the application filed by the appellants/org.opp.party nos. 3 & 4 for setting aside the order passed by District Forum dated 08/05/2009 in consumer complaint no.203/2009 is absolutely mis-conceived and not tenable in law. District Forum has rightly rejected the application to set aside ex-parte order. It is brought to our notice that in this appeal along with order on the application to set aside ex-parte order and to accept written version, the appellant has also filed appeal against the decision in original complaint no.203/1999 decided on 05/07/2007 that too without filing delay condonation application. However, such, a composite appeal is not tenable. Therefore, Ld. Counsel submitted that appellant may be allowed to withdraw the appeal filed against decision dated 05/07/2007 in complaint no.203/1999 with a liberty to file a separate appeal. We find it appropriate. However, we make it clear that this liberty does not cover a point of limitation and the liberty is granted subject to availabilities of the remedies and without prejudice to rights of other side to oppose the said appeal on point of limitation if it is filed.
Impugned order passed by the District Forum is just and proper and it requires no interference and therefore, the appeal is rejected summarily. Hence, we pass the following order:-
:-ORDER-:
1.
Appeal stands rejected summarily.
2. Liberty is granted to the appellants that they can file a separate appeal against decision dated 05/07/2007 in complaint no.203/1999. However, we make it clear that this liberty does not cover a point of limitation. Therefore liberty is granted subject to availability of the remedies and without prejudice to the rights of the opp.party to oppose the said appeal on its merits including point of limitation.
3. Appellant shall bear its own costs. .
4. Dictated on dais in presence of parties.
5. Copies of the order herein be furnished to the parties as per rules.
6. Copy of this/judgments be circulated to all the District Forums.
(S.R.Khanzode) (S.B.Mhase) Judicial Member President Nbh