CONSUMER FORUM DO NOT ENJOY RE-VIEW POWER OF ITS OWN ORDER 

 The above prohibitory version is the consequential result of amendment 2002 wherein ,special powers to review  its own order was given to the National Commission vide sec 22(2) of the act . Prior to this amendment ,SC in its  landmark judgement  in the matter of New India Assurance Co.V R.Srinivasan discussed two vital  issues  in great detail :

1] Whether consumer forums can restore back the case dismissed in default

2] Whether the consumer forums can set aside its ex-parte order

3]Whether a party can institute suit /file a complaint a fresh in case it was dismissed in default without dealing it on merits and not restored back by the court to its original stage

            It was as back as in the year 2000 when the SC held vide their judgement in the above  matter of New India Assurance Co. Ltd .V R.Srinivasan AIR 2000 SC 941,2000(2)BLJR 1059 pronounced by Justice S S Ahmad , D Wadhwa

 Held on the fist issue

“ in the absence of the complainant ,therefore the court or judicial body will be well within the jurisdiction to dismisss the complaint for non –prosecution .So also ,it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for non-appearance of the complainant ” meaning thereby that court or judiciary body can dismiss the complaint in default and also restore it back if non-appearance is justified  

            On the second issue ,the SC took the view and held that State Commission could review or re-call its ex-parte order

            On the issue of filing afresh complaint on the same subject by the same parties when dismissed in default ,the SC held that prohibition under order 9 rule9(!) is not been made applicable to CP Act which prohibits the petitioner to file a fresh suit on the same subject by the same parties.Hence when matter has not been dealt on merits and is dismissed in default,consumer may file a fresh case .

            After a long interval of more than ten years and after an amendment to the act in 2002 ,situation is significantly changed.There was no provision for the redressal agencies to review its own order, neither there was a prohibtion too for the same because   order 9 rule 9(!) is  not made applicable to this act  which is a prohibtory clause.

                        Now after the amendment 2002 ,Honourable SC in its recent judgement in the matter of Rajeev Hitendra Pathak & others V Achyut Kashinath karekar &others along with other Civil Appeal in the matter of M.O.H Leathers V United Commercial Bank has discussed the issue as to whether Consumer forum or State commission have got the jurisdiction to set aside its own order. Supreme court has discussed a range of aspects and number of earlier judgements including the above case of New India Assurance Co. Ltd for coming to a reasoned conclusion and held that consumer fora or State Commission has no power to review its own order.There has been a special clause added to the act empowering the national commission to review its own order as spelled out through amendment as hereunder;

Sec22(2) of consumer protecton act ;

            “without prejudice to the provisions contained in sub-section (1),the National Commission shall have the power to review any order made by it when there is an error apparent on the face of record”

Further ,sec 22A provides:

“where an order is passed by the National Commission ex- parte against the opposite party or a complainant as the case may be ,the aggrieved party may apply to the commission to set aside the said order in the interest of justice ”

The above new inserted provisions clearly give powers to review its order,to set aside ex-parte order against opposite party and also can consider the application of a complainant also to set aside order passed in his absence . This permission clause automatically prohibits consumer foras and State commissions to exercise these powers because legislature means so and intends so.

Here the important thing to note is that the act as well as the judgement passed by the SC in the case referred above on 29^th August 2011 talks about ex-parte order and not about ex-parte proceedings .By saying ex-parte order means final order and not interim order .Before the amendment 2002,consumer redressal forums/commissions did not enjoy the power of interim orders .Now since power of interim order is vested with the forums and commissions ,the stage of the proceedings is very important For example :

!)A stage very initial ,pleadings not filed ,dismissed in default without going into merit -complainat may file the complaint again on the same issue by the same person because the act does not prohibits expressly any where by statute or by rules .Provisions of CPC are applicable to the limited extend specifically mentioned in the Regulation  26(!) of the act as under;

“in all proceedings before the consumer forum ,endeavour shall be made by the parties and their counsels to avoid the use of provisions of code of civil procedure 1908  provided that provisions of CPC be referred to in the act or in the rules made thereunder “

Now coming to the provisions of sec 13 of the act ,it has been specifically mentioned under section 13 that for certain puposes provisions of CPC as referred to under sec 13 ,sub-sec4,5 &6., be applied and not otherwise. Order 9,rule9(!) does not come in the way as not made applicable to this act.

.!!) Further ,distinction between ex-parte final order and ex-parte proceedings is also to be made with thin demarcation line .In a case where  opposite party  remained absent and matter is closed for him to proceed further but complainant is still participating and filing evidence or case is yet to be argued by him on merits,case has not reached to finality and only proceedings are ex-parte .In such a situatioin ,case is not closed as yet with final order .In other words  order in the case is yet not made. It is surely an interim stage. Since now forums/commissions have the power to pass interim order ,this is in a way an interim order and there is no bar to revoke back interim order .In fact the concept of interim order is, an order for the time being as interim relief or till further order .Hence as per this latest order ,ex-parte proceedings can be set aside as it is not a final order which is termed as review of its own order.

Dr Prem lata ,Member CDRF-Delhi

      

 

 

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