J.B. Koshy, J.

Petitioner is the Director of a Hospital. First respondent filed a complaint against the hospital before the Consumer Disputes Redressal Forum, Kannur regarding the treatment of his wife late Simi. A notice was issued on 17.2.1999 to the hospital showing the posting date of the case as 14.4.1999. But 14.4.1999 was declared as a holiday and the case was taken up on 16.4.1999 and the petitioner was declared exparte. Aggrieved by the above, petitioner filed an application for setting aside the exparte order under O. IX R.7 of the Code of Civil Procedure. That was rejected by the Consumer Disputes Redressal Forum, Kannur by Ext. P6. Against the above order this Writ Petition is filed under Arts.226 and 227 of the Constitution of India. Since the order challenged in this petition is the order of the Tribunal, Art.227 will only apply in this case. The procedure in respect of a complaint is specifically mentioned in S.13 of the Consumer Protection Act. There is no power for the Forum to declare exparte or pass an order or take a decision exparte under the above S.13 of the Consumer Protection Act. But power is given to the District Forum to decide the complaint exparte if the opposite party or his agent fails to appear by R.4 sub-r.8 of the Kerala Consumer Protection Rules thereinafter referred to as the rules) which is as follows:

(8) If during the proceedings conducted under S.13 of the Act, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorised agent to appear before the District Forum on such date of hearing or any other date to which hearing could be adjourned. Where the complainant or his authorised agent fails to appear before the District Forum on such day, the District Forum may in the discretion either dismiss the complaint for default or decide it on merit. Where the opposite party or its authorised agent fails to appear on the day of hearing, the District Forum may decide the complaint ex parte".

So what the Rule says is that if the complainant or the authorised agent fails to appear, the District Forum can dismiss the complaint for default or decide it on merit. It also says that if the opposite party or his authorised agent fails to appear, District Forum similarly can decide the complaint exparte and if a decision is taken exparte, the only remedy of the opposite party is to file an appeal. Powers regarding setting aside of an ex parte order as provided under 0.9 of the Code of Civil Procedure is not given to the Consumer Disputes Redressal Forum under S.13(4) of the Consumer Protection Act and therefore the view of the Consumer Redressal Forum that no petition will lie under 0.9 of C.P.C. to set aside exparte decision cannot be questioned as decided by the Supreme Court in Jyotsna Arvind Kumar Shah & Ors. v. Bombay Hospital Trust UT 1999 (5) SC 228).

2. In this case no exparte decision has been taken by the District Forum. It is true that the District Forum has declared the petitioner as exparte. The power under R.4(8) is to decide the complaint ex parte. Here the complaint is not yet decided ex parte. When the case called on 16.4.1999 the opposite party was absent and without taking ex parte decision, Forum adjourned the matter. Opposite party is free to attend and agitate in the next hearing date. The word 'ex parte' is given the meaning in Black's Law Dictionary (7 th Edition at page 597) as without notice to or argument from the" adverse party and exparte proceeding is defined as a proceeding in which not all parties are present or given the opportunity to be heard. Therefore here the District Forum adjourned the matter to a subsequent date without hearing the petitioner. Nothing else happened.

3. The meaning of the expression 'ex parte' has been considered by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425 at 431). Referring to a judgment of Wallace, J. in Venkatasubbiah v. Lak