IMPORTANT POINT
Ex-parte Orders – State Commission or District Consumer Forum have no power to set aside their own ex parte orders.

ORDER

Manojit Mandal, President—This revision petition under section 17(i)(b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) has been filed against the order No. 22 dated 05.09.2023 passed by the Learned District Consumer Disputes Redressal Commission, Howrah in connection with M.A. application being No. M.A./37/2018 arising out of complaint case No. CC/316/2017 whereby the Learned District Commission has been pleased to dismiss the prayer for setting aside the ex parte order and for accepting the written version filed by the revisionist / opposite party

No. 1.

2. The revisionist has made the following prayers:-

“To issue a Rule calling upon the Respondents herein to show cause as to why the impugned order being Order No. 22 dated 05.09.2023 passed by the Hon’ble District Consumer Disputes Redressal Commission, Howrah in M.A. Case No. 37/2018 filed in CC/316/2017 be not set aside and / or quashed and upon hearing the parties, cause being shown and / or if no cause shown to make the Rule absolute and / or to pass such other further order / orders as Your Lordships may fit and proper.”

3. The only issue in this case relates to foreclosure of rights of the opposite party to file written version. Case of the parties, therefore, need not be discussed.

4. Heard the Learned Advocate appearing for the revisionist and carefully perused the record.

5. Learned Advocate appearing for the revisionist has submitted that the impugned order dated 05.09.2023 is bad in law and in facts and the Learned District Commission below erred in holding that there is no scope to set aside the ex parte order.

6. Learned Advocate appearing for the revisionist has prayed for setting aside the impugned order. In the issue of filing written version the law is very categorical.

7. The Hon’ble Apex Court in Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another in (2011) 9 SCC 541 held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35, 36, 37, 38 & 39 of the said judgment are relevant which are reproduced as under:-

“35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.

36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

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 Section 22 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.

38. In our considered opinion, the decision in Jyotsana’s case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.

39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After 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. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law”.

8. The same issue was also there before the Hon’ble Supreme Court in judgment of case Lucknow Develop