ORAL

Misc. Application no.108/2022

New Okhla Development Authority vs. Sanjeev Deewan

31.8.2022

This Miscellaneous Application no.108 of 2022 has been moved by the applicant for recalling order dated 27.4.2022 passed in appeal  no.1222 of 2003.

Heard the learned counsel for the applicant.

None appeared from the side of the opposite party.

We have seen the impugned order dated 27.4.2022. A conditional order was passed regarding deposition of the penalty within 7 days, in default, the appeal shall stand dismissed. The order has not been complied with by the appellant. Hence, the appeal stood dismissed. 

The present application has been moved to recall that order and to restore the appeal on its original number. 

In this regard, We have perused the following case laws relating to such aspect of recalling or setting aside the order.

            In the case of Mr. Reju Thomas vs. The National Insurance, WP(C).No. 37468 of 2004(I), judgment dated 04 August 2008, Hon’ble Kerala High Court has said;

“6. Section 13 of the Consumer Protection Act (hereinafter referred to as the Act) provides the procedure to be complied by the District Forum on admitting a complaint. Sub clause (i) and (ii) of clause (b) of subsection 2 of Section 13 of the Act empowers the District Forum either to dismiss a complaint for default or to pass an exparte order against respondents based on the evidence of the complainant. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed for default or to set aside the exparte order passed under Section 13 (2) (b) of the Act. This omission cannot be ignored. Section 22A of the  Act was inserted by The Consumer Protection Amendment Act (Act 62 of 2002) empowering the National Commission to set aside an exparte order. Section 22A provides that where an order is passed by the National Commission exparte against the opposite party or a complainant, the aggrieved party may apply to

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the National Commission to set aside the said order in the interest of justice. Even when such a power was granted to the National Commission by the Amendment Act, such a power was not given either to the District Forum or the State Forum. It is also important to take note of the fact that Amendment Act 62 of 2002 was introduced subsequent to the decision of the Apex Court in Jyotsana Aravind Kumar Shah v. Bombay Hospital Trust 1999(4) SCC 325 and also the decision in New India Assurance Company Limited v. Srinivasan's case (supra).

7. In Jyotsana Aravinda Kumar Shah's case (supra) the power of the State Commission to set aside an exparte order was considered by the Apex Court. It was held that so long as there is no provision in the Act enabling the State Commission to set aside an exparte order, it cannot set aside an exparte order. Their Lordships held:

          “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 order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation