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Judgment
MA No.382 of 2017 has been filed in the Revision Petition No.1615-1616 of 2016 with the request that the final order passed in Revision Petition No. 1615-1616 of 2016 dated 3.7.2017 be set aside as this was an ex parte order against the petitioner.
Heard the learned counsel for the applicant/petitioner. Learned counsel stated that this Commission has got power to set aside the ex parte order under Section 22A of the Consumer Protection Act, 1986. Accordingly, this MA No.382 of 2017 has been moved for setting aside the ex parte order against the petitioner. Learned counsel contended that Section 22A gives wide powers to this Commission to set aside any ex parte order passed in any complaint case, appeal or revision. Thus, the petitioner is entitled for fresh hearing in the matter after this Commission sets aside the order dated 3.7.2017. Learned counsel referred to the following judgment of the Hon'ble Supreme Court to support his contention that this Commission can set aside an ex parte order.
"Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another, Civil Appeal No.4307 of 2007 dt. 19.8.2011, wherein it has been observed:
"37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
In view of xxxxxxxxxxxxxxxxxxxxxAfter the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. xxxxxxxxx"
On the necessity of being heard, the learned counsel stated that after the passing of the order of the State Commission as well as by this Commission now the dealer is pressing for purchase of the car though the car prices have gone up many times and he is not ready to refund the amount of Rs.1 lakh deposited by the petitioner/complainant alongwith interest. The petitioner agreed that originally the complaint was filed for directing the dealer to handover the car at the price of booking date. However, both the Commissions have now decided that car can only be handed over if the complete price as prevailing on the date of handing over the car is paid by the complainant, though, this Commission has allowed interest on Rs.1 lakh deposited by the complainant for booking of the car to be adjusted in the price of the car.
I have given a careful consideration to the arguments of the learned counsel for the applicant and again examined the material on record.
First of all, Section 13(2)(C) of the C.P. Act, 1986 allows the Forum either to dismiss the complaint for default or decide it on merits if the complainant does not appear on the date of hearing fixed before the Forum. Section 13(2)( C) of the C.P. Act, 1986 reads as under:
"Where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits."
Section 22(1) of the Consumer Protection Act, 1986 states that Sections 12,13,14 will be applicable to the proceedings before the National Commission as well. Therefore, this Commission was fully empowered and justified in deciding the revision petition filed by the petitioner. The other party was present and that party was heard. Thus, there is no illegality in passing of this order disposing the revision petition. This order has now attained finality under Section 24 of the Consumer Protection Act, 1986 as no appeal has been filed against this order.
Now, coming to the Section 22A of the C.P. Act, 1986, this Commission has held the view that this power to set aside the ex parte order is only in respect of the original complaints which are filed before this Commission and this power is not to be exercised in respect of the appeals or revision petitions filed before this Commission. This view of the Commission is reflected in the following recent cases:
(1). Haryana Urban Development Authority (HUDA) Vs. Wing Commander Suren Yadav (Retd.), M.A. No.140 of 2018 in R.P. No.1048 of 1999, decided on 11.4.2018 (NC). It has been held that::
"In my opinion, the use of the words "Opposite Party" and "Complainant " in the aforesaid Section clearly indicate that this provision applies only to an original complaint instituted before this Commission and not to a revision petition or an appeal. If an ex parte order is passed in a consumer complaint instituted originally in this Commission, that can be set aside in exercise of the powers conferred upon this Commission u/s 22A of the Consumer Protection Act. therefore, the application would not be maintainable in respect of a final order passed in a revision petition instituted before this Commission."
(2). Sri V.V. Ramanarsaiah and others vs. M/s. Abheestha Finance Company Ltd. and others, MA No.605/2016 & MA No.60-609 of 2016 in R.P. No.2138-2142 of 2009, decided on 30.1.2017 (NC), it has been observed as under:
"5. I have carefully considered the arguments advanced by both the sides and have gone through the record. Section 22A 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 the language of this Section and from the fact that it is coming after Section 22 where the applicability of the Sections 12,13 and 14 have been prescribed for National Commission as well, it seems that Section 22A is applicable mainly for complaint cases coming before the National Commission as the words used are 'opposite party' and the 'complainant'. Such power has neither been given to the State Commission nor to the District Forum. Perhaps, this may be so because the orders passed by the District Forum or the State Commission are appealable within the Consumer Disputes Redressal agencies. However, the order passed by the National Commission is appealable in the Hon'ble Supreme Court. Therefore, I am of the view that Section 22A shall not be applicable to the final orders passed in revisions or appeals. Obviously, if any ex-parte order is passed within the pendency of the dispute even in revision petition or appeal, the same may be set aside if the party wants to join the proceedings before the final judgment is passed.
Moreover, the above view is also substantiated by Section 24 which deals with finality of orders, which reads as follows:-
"24. Finality of orders- Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final."
No party informs that any appeal has been filed against order dated 22.09.2016 of this Commission. Hence, the order has also become final. In this situation, no question of recalling the order can arise."
The learned counsel has relied upon the judgment of the Hon'ble Supreme Court in Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another (supra). However, the main emphasis of that judgment is that the District Forum and State Commission do not have power to review their own orders or even to set aside the ex parte orders and this power is exclusively with the National Commission. It is also seen from the record that the original complaint was filed for getting the vehicle from the dealer on the rates prevailing on the date of booking. This request has been turned down by the State Commission as well by this Commission. However, this Commission has allowed interest on the original booking amount of Rs.1 lakh to be adjusted against the total price of the vehicle. Now the complainant wants a fresh relief of refund of the booking amount of Rs.1 lakh from the dealer alongwith the interest. Petitioner has not produced any request letter given to the dealer for refund of this amount which perhaps would be refunded by the dealer as per their own policy. Obviously, if a purchaser does not want to purchase a car even after booking of the car and after paying some booking amount, theoretically he has right to ask for the refund and if he is not satisfied with the response of the OP, he has every right to file fresh complaint for refund.
So far as the present MA No.382 of 2017 is concerned, from the above discussion, it is clear that the order dated 3.7.2017 passed by this Commission has attained finality and the powers under Section 22A of the C.P. Act, 1986 are to be exercised only in respect of consumer complaints filed before this Commission and not with regard to appeals or revision petitions. In this background, the M.A. No. 382 of 2017 is not maintainable and is accordingly dismissed.