REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4307 OF 2007

Rajeev Hitendra Pathak & Others

... Appellants

Versus

Achyut Kashinath Karekar & Another

... Respondents

WITH

CIVIL APPEAL NO.8155 OF 2001

M.O.H. Leathers

... Appellants

Versus

United Commercial Bank

... Respondents

J U D G M E N T

Dalveer Bhandari, J.

1.

These appeals emanate from the order dated 16.11.2005

in Revision Petition No.551 of 2005 and order dated 12.7.2001

in Miscellaneous Petition No.1 of 2001 in Original Petition

No.110 of 1993 passed by the National Consumer Disputes

Redressal Commission, New Delhi.

2.

The main question which arises for consideration is

whether the District Consumer Forums and the State

Commissions have the power to set aside their own ex parte

orders or in other words have the power to recall or review

their own orders?

3.

The questions of law involved in both the appeals are

identical, therefore, we deem it appropriate to dispose of both

these appeals by a common judgment.

4.

Brief facts necessary to dispose of these appeals are

recapitulated as under:

CIVIL APPEAL NO.4307 OF 2007

5.

Smita Achyut Karekar was admitted to Ashirwad Nursing

Home as she was suffering from the ailment of slip disc. The

operation was performed on 8.10.1997. It was noticed, at

about 3.45 pm on that day, that her blood vessels had

ruptured accidentally during the surgery. She was declared

dead at 5.35 pm.

6.

The complainants issued a legal notice on 24.7.1999.

Reply to the legal notice was sent on 7.8.1999. The

complainants filed complaint alleging deficiency in service and

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claimed compensation of Rs.15,00,000/-. The complainants

did not take necessary steps to remove objection and to

complete procedure under the Consumer Protection Act, 1986.

The State Commission, Maharashtra issued notice to the

opposite parties/appellants herein on 10.02.2004. On

9.9.2004, the State Commission dismissed the complaint for

want of prosecution. On 04.11.2004, the complainants filed

an application for recalling 9.9.2004 order and consequently

the State Commission recalled the order dated 9.9.2004 and

restored the complaint.

7.

The appellants aggrieved by the said order preferred a

Revision Petition No.551 of 2005 before the National

Consumer Disputes Redressal Commission, New Delhi. The

appellants in the revision petition made two main arguments

before the Commission : firstly, that the State Commission did

not have the power to restore the complaint and, secondly,

that the State Commission restored the complaint without

issuing notice to the appellants. The National Commission

dismissed the revision petition which has been challenged by

the appellants before this Court.

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8.

The appellants relied on the judgment in the case of

Jyotsana Arvind Kumar Shah & Others v. Bombay

Hospital Trust (1999) 4 SCC 325. In this case, the Court

held that the State Commission did not have the power to

review or recall its ex parte order.

9.

In New India Assurance Co. Ltd. v. R. Srinivasan

(2000) 3 SCC 242, this Court took the contrary view and held

that the State Commission could review or recall its ex parte

order.

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 Commissi