Orissa High Court
Oriental Bank Of Commerce vs Minarva Dash And Others on 10 September, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.775 OF 2015
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Oriental Bank of Commerce ......... Petitioner
- versus -
Minarva Dash and others ......... Opp. Parties
For Petitioner : M/s. Susanta Kumar Dash, A.K.Otta,
Mrs.A.Dhalasamanta, Miss.S.Das.
For Opp.Parties : M/s.Arijeet Mishra, B.C.Pradhan, S.K.Jena,
S.Biswal, & R.Mohanta
(For Opp. Party No. 1)
___________
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 25.08.2015 | Date of Judgment: 10.09.2015
Dr. B.R.Sarangi, J.The petitioner-Oriental Bank of Commerce has filed this petition seeking to quash the order dated 10.11.2014 passed by the State Consumer Dispute Redressal Commission, Cuttack in Revision Petition No. 138 of 2014 vide Annexure-6, by which the learned State Commission has set aside the order dated 10.10.2014 passed by the District Consumer Disputes Redressal Forum, Angul in C.C.No.10 of 2014 impleading the husband of the complainant- opposite party no.1 as a party in the consumer dispute case pending before it.
2. The short fact of the case, in hand, is that the complainant- opposite party no.1 filed a complaint before the learned District Consumer 2 Disputes Redressal Forum, Angul alleging that a sum of Rs. 50,000/- was deducted from her account without her knowledge and consent, for which she raised a grievance but no action was taken by the Bank. According to her, on 30.11.2010, the Bank deducted a sum of Rs. 50,000/- from her current account by mentioning "DD/CC issued" and the bank delayed in settling the account as a result of which the complainant-opposite party no.1 issued a lawyer‟s notice on 24.10.2013 to which the Bank replied and stated that deduction was made at the instance of the complainant-opposite party no.1 as the amount has been utilized by her husband for taking the insurance policy. Therefore, through several letters, the complainant-opposite party no.1 demanded a copy of the document by which the Bank was instructed to debit an amount from her account stating that her husband had nothing to do with the account of her independent business firm. Such application was filed on 27.01.2014 i.e. more than three years after the money was illegally debited from her account as alleged. Therefore, the complainant-opposite party no.1 filed the aforementioned application seeking for the following relief:
(i) To refund Rs.50,000/- to the complainant with interest @18% from the date of deduction till actual payment.
(ii) To pay compensation of Rs.50,000/- to the Complainant towards the loss of time and money spent in running after the O.P. and his staffs and loss in business.
(iii) To pay a compensation of Rs. 50,000/- to the complainant towards the mental agony and harassment suffered by him in that period.
(iv) To pay Rs.20,000/- to the Complainant against the cost of litigation.
(v) To recover all the award money from the erring officer of the Bank.
(vi) Any other relief(s) the Forum thinks fit."3
3. The petitioner-Bank filed its reply stating that the amount has been debited towards payment of insurance premium in the name of Susant Kumar Nanda, the husband of the complainant-opposite party no.1. The proposal form was duly filled in by the husband of the complainant-opposite party no.1 but as he did not have sufficient credit balance in his account, on the instruction of the complainant-opposite party no.1 the amount has been debited from her account for the Demand Draft No. 801021 dated 30.11.2010. The complainant-opposite party no.1 is also a nominee in the said insurance policy and the husband of the complainant-opposite party no.1 has been paying the insurance premium regularly including the amount so deducted. On 02.12.2010, the husband of the complainant-opposite party no.1 requested for change of date of birth of his wife-nominee.
4. In view of the aforesaid facts and circumstances, since the husband of the complainant-opposite party no.1 is a necessary party without whose presence the case cannot be effectively adjudicated, the opposite party nos. 1 to 3 in the Court below- Bank filed an application on 14.03.2014, seeking leave of the learned District Forum to add the husband of the complainant-
opposite party no.1 as a party. Objection was filed by the complainant-opposite party no.1 vide Annexure-4 stating, inter alia, that there is no provision under the Consumer Protection Act, 1986, hereinafter to be referred to as "the Act", in short, to add a 3rd party, who is neither a „consumer‟ nor a „trader‟. Much emphasis has been laid on the score that the Bank has already admitted that there has been a wrongful deduction after service of notice from the learned District Forum and so there is no necessity to add the complainant‟s husband as a party.
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5. The learned District Forum after considering the contentions raised by complainant-opposite party no.1 as well as the Bank with regard to the application filed on 14.03.2014 to implead the husband of the complainant- opposite party no.1 as a party, passed an order on 10.10.2014 in C.C. No. 10 of 2014 directing the husband of the complainant-opposite party no.1 to be added as a party to the proceeding for just and proper adjudication of the case in hand.
6. Being aggrieved by the said order dated 10.10.2014 passed in C.C. No. 10 of 2014 directing the complainant-opposite party no.1 to implead her husband as party to the proceeding, the complainant- opposite party no.1 invoked the jurisdiction of the learned State Commission with a prayer to set aside the same under Section 17(1)(b) of the Act which was registered as Revision Petition No. 113 of 2014. With the consent of the parties, the said Revision Petition No. 113 of 2014 was disposed of by the impugned order dated 10.11.2014 vide Annexure-6 by which the learned State Commission has taken note of the fact that sum of Rs. 50,000/- was paid towards insurance premium against the policy obtained by the husband of the complainant through D.D. No. 801021 dated 30.11.2010. They have already credited amount to the account of the complainant-opposite party no.1 on 12.02.2014. Therefore, the Bank is entitled to get back the amount from the husband of the complainant-opposite party no.1 but the learned State Commission has held that in absence of relationship of the Bank with the husband of the complainant-opposite party no.1 as „ consumer‟ qua „service provider/trader‟, adding the husband as a party to the consumer dispute is unnecessary. Accordingly, the learned State Commission allowed the Revision petition filed by the complainant-opposite 5 party no.1 by setting aside the order passed by the learned District Forum. Hence this petition.
7. Mr. S.K. Das, learned counsel for the petitioner-Bank in the present proceeding states that against the order passed by the learned State Commission under Section 17(1)(b) of the Act, no second revision lies. Therefore, this Court has got jurisdiction to entertain the writ petition. Apart from the same, it is urged that the husband of the complainant-opposite party no.1 being a necessary party to the proceeding itself, the learned District Forum has not committed any error by directing the complainant-opposite party no.1 to implead her husband as a party to the proceeding. As such, the order so passed by the learned District Forum does not suffer from any of the vices so as to be interfered with by the learned State Commission in exercise of revisional power vested on it and that the order so passed under Annexure-6 is liable to scrutiny under Article 227 of the Constitution of India, 1950. To substantiate his contention, he has relied upon the judgments in The Managing Director, Nadippisai Pulavar K.R. Ramaswamy Sugar Mills v. A. Fareed Bewa and others, AIR 1997 MADRAS 204; M/s Megacity Builders, v. A.P. State Consumer Dispute Redressal Commission, Hyderabad and another, AIR 2004 Andhra Pradesh 49; and in Anil Kumar Singh v. Shivnath Mishra and Gadasa Guru, 1995 (3) SCC 147.
8. Per contra Mr.A. Mishra, learned counsel appearing for the complainant-opposite party no.1 urged that this Court has no jurisdiction to maintain writ petition while there is availability of efficacious alternative remedy under the Act. It is also urged that the learned District Forum has committed error by directing impletion of the husband of the complainant-opposite party 6 no.1 as a party to the proceeding and therefore, the learned State Commission is justified in passing the impugned order. Consequently, this Court should not interfere with the same. To substantiate his contention, he has relied upon the judgments in Shiv Sakti Cooperative Housing Society, Nagpur v. Swaraj Developers and others, AIR 2003 SC 2434; Surya Dev Rai v. Ram Charan Rai and others, AIR 2003 SC 3044; and in Surya Prasad Shukla v. M.P. State Consumer Redressal Commission and others AIR 2006 MP 81.
9. From the above facts pleaded by the parties, two questions emerge for consideration.
(i) Whether the writ petition is maintainable against the order passed under Section 17(1)(b) of the Consumer Protection Act, 1986?
(ii) Whether the husband of the complainant is a necessary party to the proceeding before the learned District Forum for just and proper adjudication of the case.
10. Section-17 of the Consumer Protection Act deals with jurisdiction of the State Commission. Section 17(1)(b) reads as follows:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction„ Xx xx xx
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."
11. On perusal of the above mentioned provision, it is clear that the learned State Commission shall have jurisdiction to call for the records and pass 7 appropriate orders in any consumer dispute which pending before or has been decided by any district forum within the State, where it appears that i. Such District Forum has exercised a jurisdiction not vested in it by law; or ii. has failed to exercise a jurisdiction so vested; or iii. has acted in exercise of its jurisdiction illegally; or iv. with material irregularity.
12. "Consumer Dispute" as spelt out in Sub-Section(b) of Section 17(1) of the Act has been defined in Sub-Section (e) of Section 2, which reads as follows:
„consumer dispute„ means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.
Therefore, in the consumer dispute which is pending or has been decided by the learned District Forum, the learned State Commission has jurisdiction to entertain the application under Section 17(1)(b) of the Act provided the learned District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
13. Section 19 of the Act deals with "Appeal" to mean any person aggrieved by any order made by learned State Commission in exercise of its power conferred by sub-clause(i) of clause(a) of Section 17 of the Act may prefer an appeal against such order to the National Commission.
14. Sub-Section (1)(a) of Section 17 of the Act stipulates that the State Commission shall have jurisdiction to entertain complaints where the 8 value of the goods or services and compensation, if any, is claimed. Therefore, as against final order passed in exercise of jurisdiction under Section 17(1)(a)(i) of the Act by the State Commission, appeal lies under Section 19 of the Act to the National Commission and no appeal lies against an order passed in exercise of power under Section 17(1)(b) of the Act.
15. Section 21 of the Act deals with jurisdiction of the National Commission, which reads as follows:
"S.21: Jurisdiction of the National Commission Subject to the other provisions of this Act, the National Commission shall have jurisdiction„
(a) to entertain„
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds 1[rupees one crore]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."
Therefore, the order of the State Commission is appealable before the National Commission as per Section 19 of the Act which clearly stipulates that any person aggrieved by any order made by the State Commission in exercise of power conferred on it by sub-clause(i) of clause(a) of Section 17 may prefer an appeal before the National Commission. Sub-clause (i) of clause(a) of Section- 17 empowers the State Commission to hear original complaints. Thus, only the order passed by the learned State Commission while hearing the complaint petition under Section 17(1)(a)(i) is appealable before the National Commission under Section 19 of the Act. The revisional power of the National Commission in sub-section (b) of Section 21, which provides that subject to other provisions of the Act, the National Commission shall have jurisdiction to call for the records 9 and pass appropriate order in any consumer dispute, which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Therefore, the National Commission can exercise revisional power in a consumer dispute case against the order passed in a complaint case, which is pending or finally decided by the State Commission if it suffers from the vices of Section 21 (b) of the Act.
16. Section 26 of the Act stipulates "Dismissal of frivolous or vexatious complaint". Section 27 of the Act deals with „penalties‟. As per Section 26, where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous and vexatious, it shall for reasons to be recorded in writing dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding Rs.10,000/- as may be specified in the order itself. Section 27 states that where a trader or a person against whom a complaint is made, fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term, which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both.
17. In M/s. Megacity Builders(supra), the Division Bench of Andhra Pradesh High Court held as follows :
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"20. A conspectus and a conjoint reading of the provisions would in unmistakable terms reveal that the proceedings initiated under Sec. 27 of the Act cannot be equated to that of a "complaint" nor it is equated to that of an 'consumer dispute" within the meaning of Sec. 27 of the Act. Therefore, no remedy as against the order passed by the State Commission under Sec. 17(b) of the Act is available. The remedy under Sec. 21 is not available against the order passed under Sec. 17(b) of the Act by the State Commission.
21. Even if it is to be held that the petitioner had an alternative remedy to challenge the order passed by the State Commission, the jurisdiction under Art. 226 of the Constitution of India to entertain writ petition against the order passed by the State Commission in appropriate cases is always available. It is fairly well settled and needs no re-statement in our hands that availability of an alternative remedy to an aggrieved person does not bar the jurisdiction of this Court under Art. 226 of the Constitution of India. It is a different matter altogether that this Court may not exercise its discretion and issue any writ in case of availability of any alternative remedy. The availability of an alternative remedy is one of the factors that may have to be taken into consideration in the matter of granting writs. It is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law. The Court in exceptional cases can always issue a writ such as a writ of Certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice.
23. When an order complaint of is illegal and ultra vires, this Court in appropriate cases can entertain the writ petition and adjudicate the same on merits. That on the facts and in the circumstances, we are not inclined to dismiss the writ petition on the ground of availability of alternative remedy at this stage of hearing after its admission by this Court for its consideration and disposal on merits.
27. Neither of the decision holds that availability of an alternative remedy in any manner affects the jurisdiction of this Court under Article 226 of the Constitution of India.We accordingly over-rule the preliminary objection raised by the learned counsel for the 2nd respondent. We hold that the writ petition against an order passed by the State Commission under the provisions of the Consumer Protection Act, 1986 is maintainable. But it is always for the Court to exercise its discretion as to when and under what circumstances to entertain the writ petition. The self imposed restriction, cannot operate as an obstacle in the matter of exercise of jurisdiction by this Court in appropriate cases. We accordingly hold that the writ petition filed by the petitioner is maintainable."11
18. The learned Single Judge of Madras High Court in The Managing Director, Nadippisai Pulavar K.R. Ramaswamy Sugar Mills (supra) taking into consideration the judgments in Trimbak v. Ramachandra, 1977 SC 1222, Mohd. Yuynus v. Mohd.Mustaquim, AIR 1984 SC 38 and V.Savarimuthu v. Special Director of Enforcement, AIR 1987 Madras 11 has held as follows :
"It is also well established that it is only when an order of a tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution."
Accordingly, the learned Single Judge of Madras High Court has interfered with the order passed by the State Commission in exercise of the power conferred under Article 227 of the Constitution of India.
19. Reliance was placed on Surya Prasad Shukla (supra) by the learned counsel for the complainant-opposite party no.1 in which reference was made to Shiv Sakti Cooperative Housing Society, Nagpur (supra) where the learned Single Judge of Madhya Pradesh High Court held that the writ application is not maintainable in view of availability of efficacious and alternative remedy. But the factual matrix of the said case is totally different from than that of the present one inasmuch as the learned Single Judge of Madhya Pradesh High Court has taken into consideration the order passed by the State Consumer Dispute Redressal Commission, Bhopal in Appeal Case No. 710 of 2004 in which the learned State Commission reversed the order passed by the District Consumer Dispute Redressal Forum, Rewa in Case No. 253 of 2003. The order has been assailed by the petitioner in various grounds enumerated in the writ petition. In that context, the learned Single Judge taking into consideration the law laid down by the apex Court referred to supra holding 12 that since the petitioner is having efficacious alternative remedy by way of filing revision against the impugned order and the National Forum constituted under the Act is having jurisdiction to deal with the matter in exercise of powers under Section 21 of the Act, did not entertain the same and granted liberty to the petitioner to file revision against the impugned order. The other judgments relied upon by the learned counsel for the opposite party has no application to the present facts and circumstances of the case.
20. In R.B.Upadhyay v. State Commission for Consumer Disputes, Mumbai, AIR 2010 Bombay 139, the Division Bench of Bombay High Court has held in paragraphs 18, 19, 21, 23 and 25 as follows:
"18. Section 27 on the other hand is a penal provision which provides for penal consequences for breach or failure to comply with the provisions of any order passed under the Act. In other words apart from conferring powers on the Tribunal to make its orders effective the power to punish is to uphold the rule of law or the Majesty of law. This aspect will have to be borne in mind while considering the expression "any order" in Section 27. The two Sections, therefore, operate in two different fields, one for enforcement of the order and the second a penal provision for failure to comply with the order.
19. Would, therefore, because there is a provision for enforcement of an interim order under Section 25, exclude the application of Section 27 on the ground that it does not expressly refer to an interim order. Section 25(1) and (2) provide for enforcement of interim orders by way of attachment. Subsection (3) deals with enforcement of final orders. Section 25, therefore, has to be seen in the context that it is a provision for enforcement of both interim orders and final orders and it is in that context that the Legislature has chosen to use the two expressions interim order and order, in contradistinction to each other, though both are orders. The procedure for enforcement of the interim order is distinct than for enforcement of a final order. This is so because of the nature of the orders. In that context the distinction in the choice of words for the purpose of Section 25 becomes apparent.
21. Do interim orders of District Forum, State Commission or National Commission lose their finality in respect of that part of the proceedings if they are challenged and the challenge is not upheld and/or if no appeal is preferred. This will have to be interpreted in the context that such interim orders can also be executed. Once an interim order is passed it must be obeyed. When a party is given notice of the proceeding for hearing of the application for interim 13 relief and the concerned forum passed an order disposing of those proceedings after hearing both the parties or ex-parte, if the Respondent had notice of the hearing and did not participate that part of the proceedings stands disposed of. Thus the expression interim order would be the final disposal of the interim proceedings before the forum. It is now settled law that interim orders once passed unless there be subsequent events cannot be varied during the pendency of the complaint or the main proceedings. To that extent there is any element of finality to such orders. Such interim orders passed during the pendency of the proceedings can be executed in terms of Section 25. Once these orders are capable of execution under Section 25(1) because there is a finality to them and if the object of Section 27 is to penalise a trader or a person against whom complaint is made for failure to comply with the order, then why should these orders which can be executed be excluded from the purview of Section 27 which provision no doubt is penal in character. If such orders can be enforced by execution then why cannot they be the subject-matter of a complaint like the final order. Why must then the expression "any order" in Section 27 be classified into orders passed at an interim stage or orders passed at final stage. Was it the intent of the Legislature to exclude a class of orders from the expression 'any order'. Wherever the legislature prescribes a duty and a penalty for a breach of it, it must be assumed that the duty is prescribed in the interest of the community or some part of it and the penalty is prescribed as a sanction for its performance. In such matters a rational approach and not a technical approach is the mandate of law. In matters pertaining to consumer protection the law must be interpreted in favour of the consumer. Section 27 only provides what Order 39, Rule 2-A provides under the C.P.C., with a provision for imprisonment if ultimately the offence is proved. No doubt the sentence of imprisonment may be harsh, but that the respondent must suffer for failure to comply with the orders. As the Supreme Court in Viswabharti House Building Co-op. Society (AIR 2003 SC 1043) (supra) has noted that Section 27 is an additional power on the forums to execute its orders.
In the matter of interpreting the provisions of Section 14(2A) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, Chandrachud, C. J., said "considering the object and purpose of this provisions which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature" See Bhagirath Kanoria v. State of M. P. (1984) 4 SCC 222: (AIR 1984 SC 1688). All such orders are equally binding irrespective of the point of time or at a stage of the proceedings when they are made. The Legislature if that be its intention could have while conferring power to grant interim relief could have excluded such 'interim order' from the expression 'any order'.
23. So viewed, in our opinion, merely because the expression "any order" under Section 27 specifically does not use the expression interim order, is irrelevant. Section 27 is an additional remedy to ensure that orders passed are not breached and the party who fails to obey the order has to suffer the penal consequences. It is in the nature of deterrence, to ensure that orders, interim or final are complied and that the consumer is entitled to specific relief. As the Supreme Court has observed in Vishwabarathi House Building Co-op. 14
Society (supra), Section 27 is another mode of execution of orders. It is no doubt true that the consequences being penal, the provisions must be strictly construed. At the same time Courts normally consider the literal interpretation of the language of the provisions unless that interpretation results in an absurdity or does not reflect the intent of the Legislature. If the object is to penalise for failure to comply with any order, we find no absurdity in applying the literal rule of construction. In Babaji Kondaji Garad v. Nasik Merchants Co-op. Bank Ltd. and Ors., (1984) 2 SCC 50 : (AIR 1984 SC 192) :-
"10. Before going in search of any external aids of construction, let us look at the language employed by the Legislature because no canon of construction can be said to be more firmly established than this that the Legislature uses appropriate language to manifest its intention."
The law pertaining to Consumer Protection Act, 1986 as its object and reasons clause would show is meant for better protection of the interest of the consumers and as the statement of objects and reasons to the Amendment Act 2002 would show, that it is meant to provide a simple, inexpensive and speedy justice to the consumers, on complaints against defective goods, deficiency in service and unfair trade practice or the restrictive trade practice and conferring power of the Judicial Magistrate, First Class on the Consumer Dispute Redressal Agencies with a view to try the offences under the Act. It is a benevolent piece of legislation providing for an alternative system of consumer justice by a summary trial, See Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668 : (AIR 2000 SC 3138).
25. We, therefore, have no hesitation to hold that Section 27 which uses the expression 'any order' must include within its sweep not only final orders, but all orders including interim orders which are also capable of execution under Section 25. Section 27 makes no distinction between order and final order, it involves any order. In our opinion, therefore, we cannot agree with the view expressed either by the Consumer Forum or by the State Commission."
21. In view of the aforesaid facts and circumstances, from the clear and literal language of Section 21(b) of the Act, it can be construed that revisional jurisdiction can only be exercised if some dispute is pending or has been decided by the State Commission. In other words, the National Commission would have no jurisdiction if the impugned order is passed in exercise of the appellate power or revisional power exercised by the State Commission under Section 17(1)(b). The power under Section 21(b) is in respect of complaint filed before the State Commission. Therefore, "any order"
as mentioned in section 27 must include within its sweep not only final orders, 15 but all orders including interim orders, which are also capable of execution under Section 25. Section 27 makes no distinction between an „order‟ and "final order" it involves "any order". In that view of the matter, this Court is of the considered opinion that the writ petition is maintainable and issue no.(i) is answered accordingly.
22. The question of necessary party under Order- 1, Rule 10, CPC has been considered by the Apex Court in Amit Kumar Shaw and another v. Farida Khatoon & another, AIR 2005 SC 2209: (2005) 11 SCC 403, wherein it is held that a person may be added as a party in two cases viz. (a) if he ought to have been joined as a party to the suit and has not been so joined; and (b) if the suit cannot be decided without his presence. The Apex Court in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 has held that the Court can suo motu or on the application of the party add or implead a proper party for settling the dispute. Similar view has also been taken in Munshi Ram, v. Narsi Ram and another, AIR 1983 SC 271.
23. In Kasturi v. Iyyamperumal and others, (2005) 6 SCC 733, the apex Court held that for determining whether a party is a necessary party or not, two facts are to be satisfied, namely, (i) there must be a right to same relief against such party in respect of the controversies involved in the proceeding; and (ii) no effective decree can be passed in absence of such a party. In Savitri Devi v. District Judge, Gorakhpur and others, AIR 1999 SC 976: (1999) 2 SCC 577, the apex Court has held that Order 1, Rule 10 enables the Court to add any person as a party, if necessary for effective and 16 complete adjudication and settlement of all questions involved in a suit and to avoid multiplicity of proceeding.
24. The Apex Court in Anil Kumar Singh (supra) stated that "necessary parties are persons who ought to have been joined as a party to the suit, a necessity to the constitution of the proper suit without whom no relief or order can be passed". In order that a person may be considered a necessary party, defendant to the suit, the conditions precedent must be (1) that there must be a right to some relief against him in respect of the dispute involved in the suit; (2) that his presence should be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Therefore, taking into consideration the parameters laid down by the apex Court under Order-1 Rule 10 CPC, read with the judgment in Anil Kumar Singh (supra), this Court is of the opinion that the husband of complainant- opposite party no.1 being a necessary party to the proceeding, the learned District Forum has not committed any error apparent on the face of record in directing his impletion justifying interference by the learned State Commission by passing the impugned order in Annexure-6 and the interference by the State Commission on the ground that there is no relationship of „consumer‟ qua„ service provider/trader‟ between the husband of the complainant-opposite party no.1 and the Bank is misconceived one. The learned State Commission has committed a gross error by holding that the husband of the complainant- opposite party no.1 has no relationship of „consumer‟ qua „service provider/trader‟ and as if a party against whom the relilef is claimed should only be added either as a necessary or proper party. Therefore, the impugned order in Annexure-6 cannot be sustained in the eye of law and the same is quashed. 17 Consequently, the order dated 10.10.2014 passed by the learned District Consumer Redressal Forum, Angul in C.C.No.10 of 2014 is affirmed.
25. With the aforesaid observation and direction, the writ petition is allowed. No cost.
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Dr. B.R.Sarangi, J.
Orissa High Court, Cuttack The 10th September, 2015/Ajaya/PKSahoo