State Consumer Disputes Redressal Commission
M/S K.C. Lifestyle Agencies And Others vs M/S Shree Bala Ji Trader And Others on 10 January, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
Revision Petition No.63 of 2022
Date of Institution : 07.09.2022
Date of Decision : 10.01.2023
1. M/s K.C. Lifestyle Agencies, having office at Wholesale Textile
Market, Agarsain Chowk, Amabala City, through its authorized
signatory.
2. M/s K.C. Lifestyle Agencies, having work office at 88, Manauli
House, Sector-1, Ambala, Haryana, through its authorized
person/representative Mr. Ankit Kumar.
3. Ankit Kumar, Distributor/authorized signatory of M/s K.C.
Lifestyle Agencies, Work Office at Manauli House, Sector 1,
Ambala, Haryana-134003.
.....Petitioners
Versus
1. M/s Shree Bala Ji Trader, PUDA Market, Opposite Happy
Senior Secondary School, Beside Hotel Food Planet, Jail Road,
Gurdaspur, through its proprietor Sh. Ramesh Chander.
.....Respondent
2. Raymond Showroom, Opposite State Bank of India, Hanuman
Chowk, Gurdaspur, through its Manager.
3. Raymond Limited, New Hind House, Narottam Morarjee Marg,
Ballard Estate, Mumbai-400001, Maharashtra, India, through its
Chairman and MD.
.....Performa Respondents
Revision Petition under Section 47 (a) (b)
of Consumer Protection Act, 2019 for
setting aside the orders dated 12.02.2021
and 24.08.2022 passed by the District
Consumer Disputes Redressal
Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
2 Revision Petition No.63 of 2022 Present:-
For the petitioners :Sh. Rohit Malik, Advocate For respondent No.1:Sh. Ramesh Chander Proprietor in person
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:-
Misc. Applications No.1195 of 2022 and 17 of 2023 are allowed as prayed for and disposed of accordingly.
2. The petitioners/opposite parties No.1-3 i.e. M/s K.C. Lifestyle Agencies, through its Distributor/Representative Ankit Kumar and others have filed the present Revision Petition under Section 47
(a) and (b) of the Act, 2019 for setting aside the impugned orders dated 12.02.2021, whereby the petitioners were proceeded exparte, and 24.08.2022 passed by the District Commission in C.C. No.154 of 2020, whereby their application filed under Section 40 of the Act has been dismissed.
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 are that a complaint was filed before the District Commission wherein notices were issued to the petitioners/OPs No.1-3 through registered post. However the 3 Revision Petition No.63 of 2022 registered covers were not received back. Neither OPs No.1-3 appeared nor any counsel on their behalf. By presuming that service was complete as period of 30 days had already expired, OPs No.1-3 were proceeded against exparte vide order dated 12.02.2021. Thereafter, the case came up for hearing on a number of dates on the one ground or the other. The case remained pending and it was fixed for hearing on 02.11.2021. Meanwhile, Mr. Rohit Malik Advocate, counsel on behalf of OPs No.1-3 i.e. M/s K.C. Lifestyle Agencies and others filed his Vakalatnama alongwith application for challenging/setting aside the exparte order dated 12.02.2021 which was dismissed by the District Commission vide order dated 24.08.2022.
5. Both the orders i.e. exparte order dated 12.02.2021 and the order passed in the application i.e. dated 24.08.2022 are under challenge in the present Revision Petition.
6. Mr. Rohit Malik Advocate, learned counsel for the petitioners submits that the main counsel at Gurdaspur engaged a proxy counsel for appearance on his behalf before the District Commission but he could not appear. The application was filed by OPs No.1-3 for setting aside the exparte order but it was dismissed by the District Commission vide order dated 24.08.2022.
7. Learned counsel has further submitted that the petitioners are having good case on merits and a great injustice would be caused if the orders under challenge are not set aside. 4 Revision Petition No.63 of 2022
8. Mr. Ramesh Chander Proprietor of the complainant Firm submits that the petitioners/OPs No.1-3 has deliberately did not appear before the District Commission inspite of service and the exparte order dated 12.02.2021 was passed. Thereafter, an application for setting aside the exparte order was filed by OPs No.1- 3 but on the date of hearing neither their counsel nor OPs No.1-3 in person appeared before the District Commission. After going through the contents of application, the same was dismissed by the District Commission.
9. Heard the learned counsel for the petitioners and Mr. Ramesh Chander the Proprietor of complainant Firm who appeared in person. We have also gone through the documents available on the record.
10. The said orders have been challenged on the ground that the District Commission has failed to consider the application filed by the petitioners on merits. The petitioners are ready to join the proceedings and to file written reply alongwith evidence so that the injustice be not caused to them. As per versions of the petitioners they could not appear before the District Commission as the circumstances were beyond their control. The non-appearance was not wilfull. The petitioners are ready to compensate the party opposite in monetary terms. The Complaint is still pending before the District Commission as final order has not been passed yet. It is also the version of the petitioners that main counsel has engaged a 5 Revision Petition No.63 of 2022 proxy counsel for making appearance on behalf of main counsel before the District Commission, but he could not appear and the reasons were beyond his control.
11. 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.--
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 6 Revision Petition No.63 of 2022 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- 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 7 Revision Petition No.63 of 2022 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 12.02.2021 and the interim impugned order dated 24.08.2022 but subject to payment of costs of Rs.5000/- to 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 12.02.2021 and interim order dated 24.08.2022 passed by the District Commission are set aside, subject to payment of costs of Rs.5000/- to be paid on the next date of hearing i.e. 18.01.2023 before the District Commission by the petitioners to the respondent/complainant. The District 8 Revision Petition No.63 of 2022 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 Ludhiana on 18.01.2023. The copy of this order be also sent to the District Commission, Gurdaspur.
19. Since the main case is decided, the pending applications, if any, are also disposed of.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER January 10, 2023 (MM)