The main legal point established is that the State Commission does not have the power to restore a complaint dismissed for non-prosecution, as settled by the Apex Court and the provisions of the J&K State Consumer Protection Act, 1987.

JUDGMENT

1. The petitioner in the present petition has questioned the order dated 02.04.2013 passed by the J&K State Consumer Disputes Redressal Commission, Jammu in complaint No. 3324/22/09/2011 titled Pal Construction Company Vs. Akona Engineering Private Limited whereby the complaint, which was dismissed on 16.01.2013, has been restored back.

2. The limited question that arises for consideration and on which the present petition has been filed, is as to whether the J&K State Consumer Disputes Redressal Commission, has the power to review its ex parte order and to restore the petition dismissed for non-appearance.

3. Objections to the writ petition have been filed by the respondents, but, none has appeared to argue the matter.

4. The issue involved in the present petition has already been decided by the Hon'ble Supreme Court in its judgment reported in (2011) 9 SCC 541 titled Rajeev Hitendra Pathank and others Vs. Achyut Kasinath Karekar and another. As a matter of fact, initially the Hon'ble Supreme Court had taken a view in Jyotsana Arvind Kumar Shah and others Vs. Bombay Hospital Trust (1999)4 SCC 325 in which it was held that the State Commission did not have power to review or recall its ex parte order, but, in a subsequent judgment reported in (2000) 3 SCC 242 titled New India Assurance Co.Ltd. Vs. R. Srinivasan, the Hon'ble Supreme Court had taken a different view. But subsequently, the issue involved, was referred to the larger Bench to consider the question as to whether the State Commission has the power to recall the ex parte order and the Larger Bench vide its judgment in case reported in (2011) 9 SCC 541 titled Rajeev Hitendra Pathank and others Vs. Achyut Kasinath Karekar and another, has held that District Forums and State Commission had not been given any powers to set aside ex parte orders and power of review and the powers, which have not been especially given by the Statute, cannot be exercised. The relevant paragraph No.10 of the judgment is reproduced as under:-

 10. In the instant case, a two-Judge Bench of this Court vide judgment and order dated 17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as under:

"5. In Jyotsana's case it was observed at para 7 as follows:

"We heard the learned counsel on both sides for quite some time. When we asked the learned counsel appearing for the respondent to point out the provision in the Act which enables the State Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions in the Act. As a matter of fact, before the State Commission the appellants brought to its notice the two orders, one passed by the Bihar State Commission in Court Master, UCO Bank v. Ram Govind Agarwal 1996 (1) CPR 351 and the other passed by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order. The State Commission had distinguished the abovesaid orders on the ground that in those two cases the opponents had not only not appeared but also failed to put in their written statements. In other words, in the case on hand, according to the State Commission, the opponent (respondent) having filed the written statements, the failure to consider the same by the State Commission before passing the order would be a valid ground for setting aside the ex parte order. The State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte ord