Karnataka High Court
M/S Alpine Housing Development vs Sri Sachin Nair on 4 September, 2012
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF SETEMBER 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.24676/2012(GM-CON),
WRIT PETITION NO.24825/2012(GM-CON) &
WRIT PETITION NO.25127/2012 (GM-CON)
BETWEEN
M/S.ALPINE HOUSING DEVELOPMENT
CORPORATION LTD., A COMPANY
REGISTERED UNDER THE PROVISIONS
OF THE COMPANIES ACT
HAVING ITS OFFICE AT NO.302
"ALPINE ARCH", 10, LANGFORD ROAD
BANGALORE-560 027, REP BY ITS
MANAGING DIRECTOR SRI.S.A.KABEER
... PETITIONER
(COMMON)
(BY SRI ABHINAV .R, ADV., FOR M/S.KUMAR &
KUMAR, ADVS.,)
AND
W.P.NO.24676/2012
1. SRI SACHIN NAIR
S/O K.S.RAMACHANDRAN NAIR
AGED ABOUT 31 YEARS
R/O PTA 004
GOLDEN BLOSSOMS
OPP. SAI BABA ASHRAM
KADUGODI
BANGALORE-560 067
2. SMT. DHANYA NAIR
W/O SACHIN NAIR
2
AGED ABOUT 28 YEARS
R/O PTA 004
GOLDEN BLOSSOMS
OPP. SAI BABA ASHRAM
KADUGODI
BANGALORE-560 067
...RESPONDENTS
W.P.No.24825/2012
SRI HEM SHANKAR JHA
AGED ABOUT 32 YEARS
S/O CHANDRA SHEKAR JHA
204, "A' WING
LAKSHMIDEVI ENCLAVE
1ST "C" MAIN, GANGANAGAR
BANGALORE-560 032
...RESPONDENT
(BY SMT.PRAMILA NESARGI, SENIOR COUNSEL A/W
SRI HEMANTH KUMAR, ADV., FOR M/S.PRAMILA
ASSOCIATES, ADVS.,)
W.P.No.25127/2012
1. SRI SUNIL G KULKARNI
S/O GOVIND RAO KULKARNI
AGED ABOUT 43 YEARS
R/O SHRIRAM SHRISTI
BLOCK-A, FLAT NO.208
SSA ROAD, ANANDNAGAR
HEBBAL, BANGALORE-560 032
2. SMT VANI KULKARNI
W/O SUNIL KULKARNI
AGED 37 YEARS
R/O SHRIRAM SHRISTI
BLOCK-A, FLAT NO.208
SSA ROAD, ANANDNAGAR
HEBBAL, BANGALORE-560 032
... RESPONDENTS
(BY SMT.PRAMILA NESARGI, SENIOR COUNSEL A/W
SRI HEMANTH KUMAR, ADV., FOR M/S.PRAMILA
ASSOCIATES, ADVS.,)
3
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED 19.04.2012
PASSED BY THE KARNATAKA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION AT ANNEXURE-C IN
COMPLAINT NOS.37/2011, 39/2011 AND 38/2011
RESPECTIVELY AND ETC.,
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE
MADE THE FOLLOWING:
ORDER
Vikramajit Sen, CJ (Oral) These Writ Petitions assail the order passed by the Karnataka State Consumer Disputes Redressal Commission refusing to set aside the ex-parte orders against the Petitioner under Order IX Rule 7 read with Section 151 of CPC. The Commission relied on the decision in Rajeev Hitendra Pathan vs Achyut Kashinath Karekar, 2012(1) CPR 78 (SC) to arrive at the conclusion that the Commission did not possess powers to set aside ex-parte orders.
2. We have perused the judgment in Rajeev Hitendra Pathan and are of the view that it has not been correctly appreciated. In the said case, what was challenged was an order of the National Commission holding that the State Commission has the power to restore 4 the complaint which was dismissed for default. In that case, what was also considered was a final order which had been passed in another case, which order contained reasons for coming to a particular conclusion. It seems to us that it was only incidental that the said order had been passed ex-parte. The reasoning of the Hon'ble Supreme Court was that after a decision has been given on merits by a Forum or a Commission, as the case may be, it is rendered functus officio and does not have the power to review or reconsider such an order. The remedy which is made available in the matter of consumer disputes is by way of a Revision before the National Commission. This is not the position that obtains in the Petitions before us. The matter is still pending adjudication. Evidence by way of Affidavit has been filed, but the matter is now fixed for arguments. In these circumstances, resort to Order IX Rule 7 of CPC is not ruled out. A perusal of the entire Consumer Protection Act, 1986 would disclose that the provisions of the Code of Civil Procedure, 1908 have not been excluded. Generally speaking, the Code of Civil Procedure only codifies in one code what may generally be viewed as general principles of law concerning procedure which are considered to be a handmaid to justice. If the 5 Commission had the power to set ex-parte any person before it, while it is still seized of the dispute, it would also have the inherent power to also recall or reverse such an Order or also restore the complaint on good cause being shown if it is dismissed for default. In any event, reliance on Rajeev Hitendra Pathan does not inescapably come to the conclusion that the Commission or the Forum is bereft of such powers. In these circumstances, the Writ Petitions are allowed. Parties are directed to appear before the Commission, which shall now consider the Petitioner's Applications for recall or setting aside of the ex-parte orders on merits. There is no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv