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Judgment
THE applicant is the original appellant who had filed an appeal before this Commission. When the appeal was called out the learned advocate of the appellant was not present and one Mr. J.R. Parikh who was representative of the Department was present but he had no instructions and, therefore, this Commission has passed an order as under: "When called out the advocate for the appellant was not present. Mr. J.R. Parikh, representative of the Department was present. THE Court has permitted Mr. Parikh to argue. However, Mr. Parikh refused to make any argument, since he had no instructions. We, therefore, dismiss the appeal for default. With no order as to costs."
THE appeal having been dismissed for default, the applicant has made this application for the restoration thereof, even by paying cost.
MR. B.B. Shah, the learned Advocate appearing on behalf of the Respondent has resisted this application and submitted that the Commission having passed order for ''dismissed for default'' has become functus officio and has no jurisdiction to entertain such an application. According to MR. Shah the only remedy is to file a revision and/or appeal before the Hon''ble National Commission. MR. Shah has relied upon the decision of the State Commission of Madras in the case of T. Subramaniam v. T. Periamma and 3 Ors. reported in 1991 (2) C.P.R. 376. We have heard the learned Advocates of the applicant at length as well as other advocates, who were also interested in other matters. We have also heard the learned Advocate of the respondent and have minutely perused the judgment of the Madras Commission.
We have gone through the whole judgment and in our opinion this judgment does not help Mr. Shah since the point at issue in this judgment is totally different. In that case the Court had passed an ex-parte order against the opposite party who was absent when the case was called out. Subsequently the opposite party appeared and filed an application to set aside the ex-parte order. The District Forum allowed the application of the opposite party and being aggrieved by that order the complainant had filed an appeal.
IN the appeal the complainant advanced an argument that District Forum had the powers of the Civil Court only as enumerated under Section 13(4) of C.P. Act, and the power to set aside ex-parte order is not included in the said provisions and hence the District Forum had no jurisdiction to setaside an exparte order. The Commission while agreeing that the provisions of Section 13(4) of the C.P. Act does not include the power to set aside an ex-parte final order, and order to hear the matter ex-parte. IN the former case the Forum becomes functus officio having passed the final order and does not posses the jurisdiction to set aside a final ex-parte order whereas in the latter case the Court is seized of the matter and case is not finally disposed of and hence Forum as a judicial body has inherent power to set aside an order setting aside the ex-parte order. This is merely an observation made by the State Commission and that too in respect of an ex-parte final order. The case before the State Commission was in respect of an ex-parte order passed against an opposite party and not a case of dismissal of a complaint on account of non-appearance.
IN the instant case we have not passed any ex-parte final order but merely dismissed the complaint on account of default and hence this case, to our opinion, is not applicable to the facts and circumstances of the present case. Again, the procedure provided for the original complaint, has to be followed by the Commission while hearing the appeal also and ultimately the Commission has to pass any one of the orders contemplated under Section 14 of the Act. If we peruse Section 14 minutely, it refers to passing of an order on merits by granting any of the reliefs which are enumerated in Section 14 of the Act. However, the legislature anticipated that sometimes a situation might arise where one of the parties may not remain present before the Redressal Forum or may not adduce any evidence whatsoever to enable the Redressal Forum to come to a conclusion on merits and obviously in such a case it is not possible to pass a judgment on merits. But the Redressal agency cannot wait indefinitely for one of the parties to come and produce evidence. Rule 6 of Gujarat Rules therefore provided as under: Rule 6(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State Commission. If appellant or his authorised agents fail to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or decide it on merits of the case. If respondent or his authorised agents fail to appear on such date, the State Commission shall proceed ex-parte and shall decide the appeal on merits of the case." It will be therefore seen that only in the case where the respondent does not appear the Commission is obliged to proceed ex-parte and decide the appeal on merits. When the appellant or his advocate remains absent discretion has been given to the State Commission either to decide the appeal on merits or dismiss the same for default.
NOW, there is no substantive provision for ''dismissal for default in the Act, whereas under the procedural rules such a power is given to the Commission to adopt one or the other course and in the instant case when the representative of the Department was present and was unable to argue the matter the Commission has adopted the normal course of dismissing the same for default and not on merits..
THE only question therefore remains to be decided is whether, in a case where there is no compulsion to decide the matter on merits, if the Commission proceeds to dismiss the same for default so as to give one chance to the parties to restore their matter showing sufficient grounds for not attending the Commission cannot do the same on the ground that the Commission has become functus officio? If we read Section 14 minutely, it leaves us no doubt that the Commission or Redressal Agencies has a power and also an obligation to decide each matter on merits on the basis of evidence. Unless the Redressal Agency exhausts that power by exercising of power under Section 14, it cannot be said that the Redressal Agency has become functus officio, in the sense that it has already exhausted its powers and that nothing remains to be exercised. When a matter is dismissed for default, the Redressal Agency is not passing any order under Section 14 because the order that can be passed under Section 14 is the order based upon evidence and merits, and till, according to our opinion, such an order is passed, it will be highly unfair to the claimants or appellants, as the case may be, to say that the Commission''s power having been exhausted, the Commission will not redress the grievances for which the Commission has been established. In any view of the matter we are of the opinion that a party who approaches the Redressal Forum has a right under the statute to get a decision on merits provided he follows the procedures as laid down in the statute. If the appellant or the complainant does not make an application for restoration the dismissal order will remain on the file.
There is a second point which also requires consideration. If the provisions of Order 9 of the CPC have no applicability to the proceedings before the Redressal Forum then if a matter is dismissed for default and not on merits there is no prohibition either for the complainant or for the appellant to file a fresh complaint or appeal before the Redressal Forum. It may be possible to argue for the appellant that on account of pendency of the application for restoration before the Commission the time for filing a fresh appeal may be condoned. This will unnecessarily increase the litigation if there is no prohibition in filing an appeal or complaint. In the aforesaid view of the matter and circumstances we are of the opinion that the Redressal Agency will become functus officio only when an order under Section 14 is passed by the consumer agency which is the last step under the statute. Till then according to our opinion all the orders are to be treated as interim orders subject to further orders in appropriate cases by the Redressal Agency.
WE have passed restoration orders in several matters because such a point was never raised before us and the parties considered that the provisions of CPC so far the restoration is concerned is a well-known principle and must be followed by the Redressal Agencies since as provided in Section 3 of the Act the provisions of the Act are in addition and not in derogation of other law. We, therefore, are of the opinion that there are sufficient reasons in this case to restore and we do so subject to payment of cost which we quantify at Rs. 300/-. Appeal allowed.