IMPORTANT POINTS
1. Power of State Commission - State Commission has not been expressly or impliedly conferred with any power or authority to recall any final order passed, be it an ex parte order or an order of dismissal for default, the petitioner cannot be permitted to resort to the procedure under Section 151 CPC.
2. S.22A - Act does not contain any provision, empowering the State Commission either to restore a complaint/appeal that has been dismissed for default or to set aside an exparte order, thus, impliedly such a power has not been given either to the District Forum or the State Commission.

ORDER

R. Subbiah, President.—The above CMPSR filed to restore the appeal in F.A. No.6 of 2015 that was dismissed for default on 01.10.2021, after returned by the Registry for maintainability, has been re-presented on 12.01.2022, and the Registry has thus placed the matter before us on maintainability aspect that the petitioner/appellant has to approach only the National Commission for any remedy and not this Commission, since the Act does not confer any power upon the State Commission to restore a complaint/appeal that was dismissed for default.

2. Learned counsel for the petitioner, by referring to Section 22-A of the Consumer Protection Act, 1986, which runs to the following effect,—

“22-A. 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.”,

would submit that the said provision only relates to ex-parte orders but the subject-matter here is an order of dismissal for default. According to him, in the absence of any specific provision empowering the State Commission to restore a case that was dismissed for default, the aggrieved party, by resorting to the general procedure under Section 151 CPC., can very well seek this Commission for restoration of such case to file. In support of such submission, learned counsel has relied upon a couple of case laws including the Division Bench decision, dated 30.06.2008, of the Madras High Court, in WP No.23379 of 2007, whereby, the complaint dismissed by the State Commission for default, was restored to file, for disposal on merits.

3. Countering the said submission, M/s. V. Balaji and V. Shankar, appointed as Amici Curiae, at the first instance, by relying upon a decision, dated 06.08.2012, of the Apex Court in Cicily Kallarackal vs. Heavy Vehicle Factory – SLP (C) No.24228-24229 of 2012, wherein, it has been categorically held that the orders of the State Commission are incapable of being questioned under the Writ Jurisdiction of the High Court, and by referring to the following text there-from,

“Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.”,

would submit that the Consumer Protection Act has inbuilt provisions in the form of Sec.15/Sec.17 that enables the parties to the complaint to file appeal or revision whichever is applicable before the Commission and any order passed by the Commission could be challenged by the aggrieved person only before the National Commission under Section 19 or 21 by filing Appeal or Revision as the case may be. According to the Amici Curiae, in the light of the said categoric ruling of the Hon’ble Supreme Court, which is subsequent in point of time to the Division Bench Judgment of the Madras High Court cited by the learned counsel for the petitioner, the petitioner can, in no way, advance his case any further, by citing the said case-laws. By relying upon a catena of decisions, they argued that, since no power is expressly or impliedly conferred upon the State Commission to restore either an ex-