State Consumer Disputes Redressal Commission
M/S Rai Sales vs Harparvesh Singh on 20 July, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Revision Petition No.50 of 2023
Date of Institution : 05.06.2023
Date of Decision : 20.07.2023
M/s Rai Sales Registered Office at Lower Ground Floor, Big C Mall,
255, Lajpat Nagar, Jalandhar, Punjab 144001, through its partner
Sakun Chawla S/o Vinod Kumar, House No.200, Lajpat Nagar,
Jalandhar-1, Jalandhar City, Jalandhar 144001.
Email : [email protected]
.....Petitioner/Opposite Party No.2
Versus
1. Harparvesh Singh son of Dr. Mohinder Singh, resident of
House No.104-R, Model Town, Jalandhar, Mobile
No.9463711104.
.....Respondent No.1/Complainant
2. Samsung India Electronics Private Limited, having principal
office of business at 20-24 Floor Two, Horizon Center, DLF
Phave V, Sector 43, Gurugram, Haryana 122002, through its
Director.
.....Proforma Respondent No.2/Opposite Party No.1
Revision Petition under Section 47 (1)(B)
of Consumer Protection Act, 2019 for
setting aside the order dated 17.04.2023
passed by the District Consumer Disputes
Redressal Commission, Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the petitioner :Sh. Rana Gurtej Singh, Advocate For respondent No.1 :Sh. Harparvesh Singh in person 2 Revision Petition No.50 of 2023
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 petitioner/opposite parties No.2 i.e. M/s Rai Sales, through its partner Sakun Chawla has filed the present Revision Petition under Section 47 (1)(B) of the Consumer Protection Act, 2019 (in short the "Act") for setting aside the impugned order dated 17.04.2023 passed by the District Consumer Disputes Redressal Commission, Jalandhar (hereinafter called as the "District Commission"), whereby the petitioner was proceeded exparte. A prayer has also been made that the petitioner be allowed to join the proceedings in the complaint and to file written version contesting the complaint on merits.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case are that respondent No.1/complainant filed Consumer Complaint No.85 of 2023 before the District Commission. Said complaint was taken up for hearing on 20.03.2023 and notice was issued to the OPs for 17.04.2023. On said date i.e. 17.04.2023, the District Bar Association Jalandhar passed a resolution for abstaining from work and all the Advocates/Members of 3 Revision Petition No.50 of 2023 the Bar Association were asked not to put their appearance before the Court. Said resolution was also conveyed to the Courts. The Courts were also requested not to pass any adverse orders against any party due to the non-appearance. Thereafter, the case was adjourned for 01.05.2023 but it was not taken up due to Holiday which was declared due to 'Labour Day'. The counsel for the petitioner came to know that the petitioner had been proceeded exparte on 17.04.2023 itself.
4. Said order dated 17.04.2023 has been challenged by the petitioner/OP No.2 by way filing the present revision petitioner by raising a number of grounds.
5. Mr. Rana Gurtej Singh Advocate, representing the petitioner has submitted that non-appearance before the District Commission was not intentional as he could not appear due to the resolution so passed. Learned counsel also submits that non- appearance of the petitioner was not intentional but it was beyond his control. Learned counsel has further submitted that when the case was fixed for hearing on 01.05.2023, it was not taken up due to Holiday which was declared being the 'Labour Day'. Subsequently on 19.05.2023 he came to know about the order of exparte. The reply was required to be filed to deny certain averments in the complaint so filing of reply was necessary and for that purpose only one opportunity is required to join the proceedings. The petitioner is also ready to compensate the party opposite. Learned counsel also 4 Revision Petition No.50 of 2023 submits that no prejudice would be caused to respondent No.1/complainant. He has also relied upon the following judgments in support of his arguments:
(1) "Bhagmal & others Vs. Kunwar Lal" AIR 2010-SC-2991
(2) "Bhagwan Swaroop Vs. Mool Chand" (1983) 2 SCC 132 (3) "Zee Learn Limited Vs. Keshava Murthy D.M." 2017 (1) CPR 658 (NC)
6. Sh. Harparvesh Singh respondent No.1/complainant is also present in person and has submitted that the case will be delayed unnecessarily as nothing has been shown that it was a case of bonafide mistake. Respondent No.1/complainant has further submitted that the petitioner be asked to give an undertaking that he will not further delay the proceedings before the District Commission in case the present revision petitioner is allowed.
7. We have heard the learned counsel for the petitioner as well as respondent No.1 at length. We have also carefully perused the impugned order and all the documents available on the file.
8. Admittedly the respondent No.1/complainant filed the Complaint before the District Forum and the petitioner/OP did not appear before the District Commission after service. The case was taken up for hearing on 20.03.2023 and notice was issued for 17.04.2023. On 17.04.2023, the Bar Association Jalandhar had passed a resolution for abstaining from work vide Annexure R-1 due to that reason the counsel could not appear before the District 5 Revision Petition No.50 of 2023 Commission. Thereafter again the case was adjourned for 01.05.2023 but on that day also the cases were not taken up due to holiday which was declared to observe 'Labour Day'. Thereafter, the case was taken up on 17.05.2023 and on that day the petitioner's counsel came to know that the petitioner had been proceeded exparte.
9. It is also the argument of the counsel for the petitioner that he could not appear before the District Commission on 17.04.2023.
10. 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."
11. 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.--6
Revision Petition No.50 of 2023 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."
12. 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."
13. 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".
14. 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-7
Revision Petition No.50 of 2023 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."
15. In view of facts and reasons as well as the judgments as mentioned above and also in the interest of justice to prevent the miscarriage of justice and to meet out the ends of justice, one more opportunity is granted to the petitioner to put up his case before the District Commission by setting aside the exparte proceedings dated 17.04.2023 but subject to costs of Rs.7000/- to be paid to respondent No.1/complainant and moreover no prejudice would be caused to respondent No.1/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.
16. Accordingly, the revision petition is allowed and the exparte order dated 17.04.2023 passed by the District Commission is set aside. The District Commission is directed to allow the petitioners/OP No.2 to join the proceedings by affording one more opportunity not only to plead his case by filing reply but also to 8 Revision Petition No.50 of 2023 lead evidence in support of his defence but subject to payment of costs of Rs.7000/- to be paid on or before the date fixed before the District Commission by the petitioner/OP No.2 to the respondent No.1/complainant. The District Commission is further directed to decide the case after hearing the parties on merits in accordance with law.
17. The parties are directed to appear before the District Commission on 21.08.2023. The copy of this order be also sent to the District Commission.
18. Since the main case is decided, the pending applications, if any, are also disposed of.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER July 20, 2023 (MM)