NAYYAR And COMPANY vs MEDICAL SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, ROHTAK

WHETHER a regular appeal under Section 15 of the Act lies against an order of the District Forum dismissing an application for setting-aside an ex parte order on the complaint earlier? This is the preliminary threshold question in this appeal.

AS is evident the issue aforesaid is pristinely legal and therefore, the facts would pale into relative insignificance and may be noticed with the utmost brevity. Way back on the 9th of December, 1991 the Superintendent of the Medical College Hospital at Rohtak had preferred the complaint before the District Forum giving rise to these proceedings. Despite service and an initial appearance put in on behalf of the appellants they chose to absent themselves subsequently and consequently the District Forum by its order dated the 17th of April, 1992, proceeded against them ex parte. Thereafter, the District Forum in an exhaustive order running into fifteen closely typed pages allowed the complaint and accorded relief to the respondents by order dated the 29th of May, 1992. Nearly a month thereafter, the appellants put in an application for setting-aside the aforesaid ex parte orders against them. This was inevitably contested hotly by the respondents. The District Forum in an equally exhaustive order dated the 26th of August, 1991 found the said application merit less and dismissed the same. Against the said order, the present appeal was preferred on the 30th of September, purporting to inter alia challenge the earlier orders dated the 17th of April, 1992 and 29th of May, 1992 as well. Inevitably the preliminary question of the maintainability of this appeal against the order dated the 29th of May, 1992 has arisen at the very threshold. The learned Counsel for the respondents strenuously took up the stand that herein no appeal is warranted under Section 15 of the Act against an order merely dismissing an application for setting aside the earlier ex parte order.

Mr. Nitin Kumar, the learned Counsel for the appellant faced with a somewhat uphill task had first attempted a flanking movement. It was sought to be contended that the appeal was not only directed against the dismissal of the application on the 26th of August, 1992 but also against the earlier order dated the 17th of April, 1992 and 29th of May, 1992, ordering ex parte proceedings and allowing the complaints ex parte respectively. Somewhat curiously it was submitted that the appeal was a composite one against not one but all the three orders.

WE are unable to find the least modicum of merit in the aforesaid submission. It is somewhat plain that Section 15 visualises an appeal against an order and not a series of orders as such. Apart from the specific language of the said Section, it is otherwise elementary on general principles that a statutory appeal is always to be directed against a specific order and within a prescribed period of limitation from the date thereof. A multiplicity of orders plainly enough cannot be the subject matter of an appeal. Herein, it is further not in dispute that the present appeal was preferred on the 30th of September, 1990 which would be more than five months and four months respectively from the earlier two orders. With the period of limitation under Section 15 pegged at thirty days, any appeal against the saiu two orders on this date of its presentation would be hopelessly barred by time. Not the least justification for the same either appears on the record or could be projected by the learned Counsel. The somewhat evasive argument therefore, must be rejected and it necessarily follows that the present appeal is and can only be against the last order dated the 26th of August, 1992. Coming to grips with the core question Mr. Nitin Kumar had then attempted to base himself on the specific language of Section 15. The submission was that this provision envisages an appeal by a person who is aggrieved by "any order" of the District Forum. With considerable literality (virtually bordering on the hyper technicality), it was the stand that the Section visualises no pre-conditions or limitation, with the result that any other order by the District Forum would become appealable if a grievance is raised by a party against the same. It was pointed out that the dismissal of the application has been made by a considered and exhaustive order which has been labelled as such and therefore, it was within the wide ranging ambit of Section 15. Some tenuous reliance was sought to be placed on Shah Babulal Khimji v. Jayaben D. Kama & Another, AIR 1981 SC 1786, II (1991) CPJ 466, Majestic Auto Ltd. & Others v. Sh. K. Kant, I (1992) CPJ 263, Citi Bank v. Raman Sharma & Another and II (1992) CPJ 513 The New India Assurance Company Ltd. v. Narain Bhali.

AT the very outset one must notice that the question herein though not entirely free from difficulty appears now to be resolvable in view of the decisions on analogous question decided by this Commission. However, there is no gain-saying the fact that the specific legal question is perhaps resintegra because inspite of the opportunity given to the learned Counsel, no decision covering the same on all fours was cited before us. Inevitably, the matter has, therefore to be examined on the larger scheme and language of the Act and on general principles. It is apt to set out the provisions of the basic Section 15 which calls for consideration for facility of reference:- "Section 15 : Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed: Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period."

In this interpretative exercise, the larger approach to the question seems not only to be important but indeed crucial. It has to be recalled that the rigour and the technicalities of the earlier strict rule of grammatical construction have now been considerably mellowed down by, what is called the schematic approach to the construction of a statute. The larger object and purpose of the Consumer Protection Act is not to be lost sight of by myopically focusing oneself on a single provision thereof as if it stood alone. We are inclined to the view that the somewhat brief provisions of Section 15 have to be viewed in the larger mosaic of the earlier provisions to the Section preceding and following the same. With the aforesaid broader approach in mind one has to read Sections 13, 14 and 15 together and construe them harmoniously. It is unnecessary to refer in great detail to the somewhat exhaustive contents of the earlier two sections and it suffices to mention that Section 13 provides for the procedure on the receipt of a complaint by the District Forum. Then follows the crucial Section 14 and as its very heading shows, it provides us some detail, for the findings of the District Forum in its final order after complying with the procedure prescribed. It is in this sequence that Section 14 immediately follows and lays down that any person aggrieved by an order made by the District Forum may prefer an appeal against it to the State Commission. The reference to the order under Section 14 though not explicit, is implicit in this provision. The intention of the Legislature seems to be somewhat clear that the substantive right of appeal conferred by Section 15, is directed against an order made by the District Forum under Section 14 thereof. Even if Section 15 is viewed with strictitude and in relative isolation, the same result would, in essence, ensue. The said section refers to an order made by the District Forum and not to any or every order made by it. It bears repetition that such an order has a contextual reference to the earlier Section 14 containing the findings of the District Forum on merits in a complaint preferred before it under Section 12. To construe "an order" as employed in Section 15 as "any order" therein when carried to logical lengths, would lead to an obvious absurdity. If it were to be so, then every order, whether interlocutory, interim or one merely giving a date and granting an adjournment or summoning or declining to summon witnesses etc., by the District Forum would come within the sweep of Section 15. That could hardly be the intent of the framers of the statute and Parliament, it is otherwise well-settled that even where two interpretations are possible, the one which leads to absurd or mischievous results, has to be necessarily avoided on sound canons of construction. Therefore, to read Section 15, as laying down that any and every order of whatever nature passed by the District Forum would become appealable there under appears to us as running contrary to both reason and the basic principles of statutory construction.

APART from the language of the statutory provisions and principles, it appears to us that the view we are inclined to take, receives considerable if not conclusive support from the earlier considered decisions of this Commission in II (1991) CPJ 429, Kohinoor Carpets, Panipat & Others v. Mr. Rajinder Arora. Therein, the closely analogous question that arose was whether an appeal was maintainable against an order imposing a penalty by the District Forum under Section 27. On indepth consideration of the issues involved it was categorically held as under:- "18. To conclude, the answer to the question posed at the outset is rendered in the negative and it is held that no appeal under Section 15 lies against the imposition of penalty by the District Forum in exercise of its power under Section 27 above."

IN view of the aforesaid supporting ratio, it seems unnecessary to traverse the identical ground over again. It remains to advert to the somewhat strained reliance of the learned Counsel for the appellants on precedents. A bare perusal of the judgment of their Lordships in Shah Babulal Khimji v. Jayaben D. Kania & Another (supra), would show that the same is totally off the mark from the question which is under consideration herein. The primal ratio of that judgment pertains to the specific and detailed provisions of Section 104 of the Civil Procedure Code read with Order 41 Rule 1 thereof. That is not even remotely the situation herein. In the alternative, their Lordships has considered the scope, meaning, and the purport, of the word ''Judgment'' and the context in which it was to be made appealable under the letters patent applicable to the High Courts. This consideration is again wholly alien to the present case. It bears repetition that the Civil Procedure Code is not applicable to the proceedings under the Act except for the very marginal and limited provisions specified in Sub-section (4) of Section 13. In our considered view, this judgment is not at all attracted to the present situation. Mr. Nitin Kumar''s reliance on Majestic Auto Ltd. & Others v. Sh. K. Kant (supra), is equally untenable. In the said case, the Delhi State Commission had come to the conclusion that despite the absence of any specific provision in the Act an application for setting-aside an ex parte order before the District Forum was maintainable. A perusal of the said order would show that the question whether an appeal against an order dismissing such an application would lie under Section 15 was not even raised remotely far from being adjudicated upon. This case is consequently of no aid to the appellants. The same appears to be the case with regard to City Bank v. Raman Sharma & Another (supra). All that has been held in the very short order therein of the Delhi State Commission is that the question whether the service was effected on the appellant or not is a question of fact which has to be determined by the Forum which passed the order after recording evidence and, therefore, an appeal against such an order is not a proper remedy. Far from helping the appellants, this observation may indeed tend to boom rang on their stand. Lastly, we are also unable to see how The New India Assurance Co. Ltd. v. Narain Bhati (supra) is in any way relevant or germane to question before us.

To finally conclude, the answer to the question posed at the outset is rendered in the negative. It is held that no appeal under Section 15 lies against an order of the District Forum dismissing an application for setting-aside an ex parte order in the complaint earlier.

IN view of the aforesaid ratio, the present appeal therefore, must be held as not maintainable at the very threshold. Appeal dismissed.