Mata Vaishnodevi Construction & Ors vs Kunal Ghosh

MA 280 of 2017 has been filed for restoration of the appeal No.117 of 2016, which was dismissed in default vide order date 4.07.2017. A notice was issued to the respondent and both the learned counsel were heard.

The learned counsel for the respondent objected that MANo.280 of 2017 has been filed without any signature of the appellant and the same has been signed by the counsel of the appellants and therefore, MA is not maintainable. He stated that as per Section 22(A) of the Consumer Protection Act, 1986 this Commission has power to set aside an ex-parte order. The dismissal in default is also an ex-parte order and this can be set aside under the provisions of 22( A) of the Consumer Protection Act, 1986. This Section clearly states that the aggrieved party may apply to the Commission to set aside the ex-parte order. Here the party clearly means the appellants and not the counsel. Learned counsel further mentioned that the provision of Order IX Rules 2, Civil Procedure Code (CPC) also supports his contention.

On the other hand, the learned counsel for the appellants stated that order XLI Rule 1 provides that:

Form of appeal- What to accompany memorandum- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment.

[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment."

He argued that when the main appeal can be filed by a pleader an application for restoration for the same appeal can definitely be filed by the pleader. He also argued that the pleader includes the counsel for the appellants. He further contended that had the appellants signed the application for restoration, the appellants would be submitting an affidavit for the assertion for which he may not be having the complete first-hand knowledge. As the appeal was dismissed due to default on the part of the counsel, it is only the counsel, who can file the right affidavit and therefore, the application has been filed by the counsel. To support his contention he referred to the judgment of Bhupinder Singh Vs. State of Haryana and others, AIR 1968, Punjab and Haryana, 106 (V 55 C91).

I have considered the arguments advanced by the learned counsel for both the sides and have examined the documents. First of all, it is seen that the Order IX Rule 2 of the CPC referred to by the learned counsel for the respondent is related to the dismissal of suit as a consequence of non appearance of the parties. Hence, Order IX Rule 2 of CPC is not connected with the restoration of a suit or an appeal. So far as the Section 22 (A) of the Consumer Protection Act, 1986 is concerned, the power has been given to this Commission to set aside the ex-parte order if an application is moved by the aggrieved party. Here definitely the party means party to the complaint case. Definitely the counsel cannot be considered as a party and therefore, the application under Section 22(A) of the Consumer Protection Act, 1986 cannot be filed by a counsel.

Coming to the provisions in the CPC, it is found that though the provision in order XLI Rule 1 provides that an appeal can be filed by the appellant or his pleader, Rule 19 of the same order clearly states that the readmission of an appeal dismissed in default can be ordered on an application moved by the appellant. This Rules reads as under:-

"19. Re-admission of appeal dismissed for default.- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 , the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."

From the order XLI Rule 19 becomes clear that the application for restoration has to be signed by the appellant. There is no specific mention that the pleader can also file such an application. Moreover, all the provisions of CPC are not applicable to the proceedings under Consumer Protection Act, 1986, particularly where there is any specific provision in the Consumer Protection Act, 1986. Section 22(A) of the Consumer Protection Act reads as follows:-

"22A. Power to set aside ex parte orders- Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice."

From this provision, it is clear that a party can file an application for setting aside the exparte order as there is no separate provision for complaint, appeal or revision petition to be restored. This Section 22 (A) is only provision under which the order for restoration can be passed and this Section allows the application to be filed only by the parties.

Thus, from the specific provision of Order XLI Rule 19 of the CPC and under the provision of Section 22(A) of the Consumer Protection Act, 1986, it is seen that the application for restoration needs to be filed by the party concerned and therefore, the MA for restoration of the appeal which is signed by the counsel, is not maintainable as the same has not been signed by the party concerned. Accordingly the MA No.280 of 2017 is dismissed, however, liberty is provided to the appellants to file the proper application as admissible under Rules.