K.S.E.B. vs Madhavan Nair

WHEN this appeal came up for hearing today, the learned Counsel for the appellant highlighted the fact of serving of notice on the first appellant only on 12.4.2002 and also the fact of not serving notice on the second appellant for challenging the correctness of the impugned order passed by the Forum below.

THE Forum below declared the appellants ex parte on 12.4.2002 and the case was posted for recording ex parte evidence to 16.4.2002. On that day ex parte evidence was not recorded and the case was posted to 29.4.2002. Application was moved on 16.4.2002 by the complainant/respondent to advance the hearing of the case and the Forum below advanced hearing of the case to 17.4.2002. Ex parte evidence was taken on 17.4.2002 and the case was disposed of on 22.4.2002.

From the materials available on record it is explicitly clear that second appellant was not served with notice and without serving notice on the 2nd appellant the impugned ex parte order has been passed by the Forum below against him. We wonder how it is possible for the Forum below to pass an ex parte order against a party who was not served with any notice and who was not aware of the filing of complaint against him. When no notice was served on a party we cannot proceed on the assumption that party was aware of filing the complaint and posting of the case to a particular date. It is not the case of any of the parties that 2nd appellant evaded notice or returned the notice unclaimed or refused to accept the notice. We refrain from making any comment on the slipshod manner of disposal of the matter by the Forum below.

IT is also clear from the materials on record that notice was served on the first appellant only on 12.4.2002 which was the very date fixed for 1st appellant''s appearance and naturally it was not possible for the 1st appellant to make arrangement for contesting the case on that date. The impugned order is a glaring example of the indifferent or callous attitude of the Forum below, in disposing of cases. We feel it necessary to draw to the attention of the Forum below the following observation made by the Supreme Court in Topline Shoes Ltd. v. Corporation Bank, II (2002) CPJ 7 (SC)=IV (2002) SLT 235=2002 (3) CPR 91 (SC), Supreme Court observed thus: "It is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guide line, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well."

SUPREME Court further held in the decision cited supra that Forum may refuse to extend time beyond 15 days, in view of Section 13(2)(a) of the Act but exceeding the period of 15 delays of extension, would not cause any fatal illegality in the order. Supreme Court also held in the above cited decision that the power to extent time under Clause (a) is with a rider that the extension may not exceed 15 days. We have however already held that the provision saying that the extended time may not exceed 15 days is directory in nature. That the Forum below utterly disregarded the principles of natural justice and passed the impugned order in violation of the principles of natural justice is evident from the fact that the 1st appellant was served with notice only on 12.4.2002 and it was not possible for the appellant to contest the claim by filing version and adducing evidence.

THIS Commission on earlier occasions also set aside the ex parte orders passed by Thiruvananthapuram Forum on the ground of not giving opportunity to opposite party or parties to file version and contest the claim and thereby flagrantly violated the principle of natural justice. Undue haste appears to have been shown by the Forum below, which is conferred or invested with quasi-judicial powers, in passing the impugned ex parte order without keeping in mind principles of natural justice.

IN fact no opportunity was given by the Forum below to the first appellant, also to file version and contest the claim made by the complainant. There is sufficient ground to set aside the ex parte order passed by the Forum below and to remit the matter to the Forum below for giving opportunity to the appellants herein to file version and contest the claim. Hence, the order under attack is set aside and the matter is remitted to the Forum below for giving the appellants opportunity to file version and adduce evidence in support of appellant''s case. Learned Counsel for the appellants submitted that no fresh notice need be issued from the Forum below to the appellants and the appellants will appear before the Forum below on 10.3.2003. The Forum below is directed to issue notice to the complainant to appear on 10.3.2003. Appeal allowed.