Petition seeking to set aside ex-parte order before forum.

A.R. LAKSHMANAN, J.

The above civil revision petition has been filed by the Manager, Indian Bank, High Court Extension Counter, Madras, on his behalf and on behalf of the Indian Bank, under Article 227 of the Constitution of India against the order dated 8.4.1991 in O.P. No. 86 of 1991 passed by the District Consumer Disputes Redressal Forum, Madras (hereinafter referred to as the Forum), refusing to entertain the petition filed by the Indian Bank for setting aside the order passed on 1.4.1991 setting the petitioners ex parte.

2. The 2nd respondent filed a complaint before the Forum alleging wrongful dishonouring of a cheque issued by him on his personal S.B. Account No. 5891/25 with the Indian Bank, High Court Extension Counter, Madras. The said cheque was drawn in favour of M/s. Kilburn Reprographics Limited for Rs. 10, 762.11 on 3.9.1990. Aggrieved by the dishonouring of the cheque dated 3.9.1990, the 2nd respondent filed O.P. No. 86 of 1991 before the Forum to award a sum of Rs. 30, 000/- with interest @ 18% per annum from the date of plaint till the date of realisation or such other sum as compensation for the injury suffered by him due to the negligence of the Indian Bank authorities, and also for costs and other reliefs.

3. On receipt of the complaint, the Forum issued a notice to the Indian Bank fixing the date for enquiry as 29.3.1991 at 10.30 a.m. The petitioners were directed to appear before the Forum either by themselves or through their authorised agents alongwith evidence, documents, etc., failing which the Forum will proceed to settle the dispute in question on the basis of the evidence produced by the complainant/2nd respondent and on merits.

4. According to the petitioners, the Indian Bank Manager alongwith their Advocate went to the Forum premises on 29.3.1991 and the Forum was found to be locked as that day was declared to be a holiday on account of Good Friday. The next working day was 1.4.1991. The petitioners' counsel by way of abundant caution went to the Forum office at 12.00 noon on 1.4.1991 to verify the exact date of hearing. He came to know that the petitioners were set ex parte and the complaint was posted for hearing on 4.4.1991 for filing an affidavit of service. Immediately thereafter the matter was mentioned in the open Court and a request was made to set aside the order setting the petitioners ex parte. Thereafter, again time was granted to the 2nd respondent to file affidavit of service and the matter was adjourned to 4.4.1991. Again, on 4.4.1991, the petitioners' counsel requested the Forum to set aside the order passed on 1.4.1991. However, the matter was adjourned to 8.4.1991 as both parties were not present for the hearing. On 8.6.1991, the petitioners' counsel again pleaded for setting aside the order dated 1.4.1991 and filed a petition for setting aside the order dated 1.4.1991 setting the petitioners ex parte.

5. It is also stated that 1.4.1991 was closing of the financial year since 31.3.1991 happened to be a holiday and the Nationalised Banks did not transact business and all the petitioners were very busy with the closing of accounts for the financial year. Thereafter, it is contended, that the absence of the petitioners and their counsel on 1.4.1991 before the Forum was neither wilful nor wanton. The petition filed by the petitioner for setting aside the order dated 1.4.1991 was taken up for hearing on 8.4.1991 and the same was returned with the following observations :

"1. There is no provision under the Consumer Protection Act, 1986, to maintain this petition for setting aside the ex parte order in question and also Code of Civil Procedure is not applicable to it.

2. The averments in the petition cannot be looked into for want of power to this Forum." *

Aggrieved by the aforesaid order of returning the petition to set aside the ex parte order, the petitioners have approached this Court under Article 227 of the Constitution.

6. It is contended by the learned counsel for the p