ORAL

Misc. Application no.235/2023

Pooja Mishra vs. Dr. Archana Masey

ORDER

29.9.2023

Per Mr. Rajendra Singh, Member: This Miscellaneous Application no.235 of 2023 has been moved by the applicant for recalling order dated 2.5.2023 passed in complaint   no.342 of 2018.

Ld. counsel for the applicant Sri Nitin Kumar Mishra has moved an adjournment application which is rejected.

None appeared for the opposite party.

We have seen the impugned order dated 2.5.2023. On that date none appeared for the complainant. Ld. counsel for the OP Sri Ambrish Kaushal was present.  Hence, the complaint has been dismissed in default of the complainant.

The present application has been moved to recall that order and to restore the complaint 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 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

(2)

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