(Passed on 17.10.2015)

Per Mr B A Shaikh, Hon’ble Presiding Member

1.      We have heard Advocate Ms Ramteke appearing for respondent No.1 and Advocate Mr B Mohta appearing for respondent No.2. Advocate of the petitioner forwarded an application through his registered Clerk for adjournment. However, we find that since the issue involved in the revision petition is very short & simple, no adjournment should be granted. Therefore, we proceeded to decide the revision petition on merits.

2.      The Forum below in complaint No. 259/2014 proceeded exparte against the petitioner / O.P.No.2 as per order dtd.01.01.2015 as the petitioner failed to appear on that date before it after service of notice.

3.      The learned advocate of the respondent submitted that this Commission has no power to set aside the exparte order. She relied upon the observations made in the following two cases.

1. T.Gunasundare Vs. B Chitra & Ors., AIR 2005 Madras 181.
2. Jyotsna Arvindkumar Shah & Ors. Vs. Bombay Hospital Trust, (1999) Supreme Court Cases, 325.

          We have gone through the aforesaid decisions, which have laid down that State Commission has no power to recall or to set aside its own exparte order. The said decisions are not applicable to the present case as we are not hearing petition for review so as to recall our own order.

4.      This Commission has power to set aside the exparte order passed by the District Forum, in view of the provisions of Sec.17 (B) of Consumer Protection Act, 1986 under the powers of revision.

5.      It is seen that the impugned exparte order was passed by the Forum on the same date on which the petitioner was expected to appear. It is also seen from the revision petition that the advocate of the petitioner had gone to the Forum to record his appearance in the matter on 01.01.2015. But he found that the complaint was already adjourned till 06.06.2015 and that on 06.06.2015 the said advocate of the petitioner found that exparte order has been already passed on 01.01.2015.  In our view, whatever may be the reasons for non appearance of the petitioner before passing of exparte order on 01.01.2015, the fact remains that the Forum passed the exparte order on first returnable date of the notice and the petitioner through its advocate had also appeared before the Forum on the same date after exparte order was passed. There appears no mala fides or inordinate delay on the part of the petitioner. Therefore, we hold that an opportunity should be given to the petitioner to file reply before the Forum to oppose the complaint, subject to payment of cost of Rs.10,000/- to the respondent No.1.

ORDER

i.        The petition is partly allowed.

ii.       The exparte order dtd.01.01.2015 passed by the District Consumer Forum, in consumer complaint No. 259/2014 is set aside subject to payment of cost of Rs.10,000/- by the petitioner / O.P.No.2 to the complainant. The said cost be paid on or before 17.11.2015 and if the said cost is not paid to the complainant or not deposited with the Forum on or before 17.11.2015, the revision petition shall be treated as dismissed.

iii.      The Forum below shall verify before proceeding with the complaint as to whether the O.P.No.2 has complied with the aforesaid direction of payment of cost on or before 17.11.2015.

iv