Case Note & Summary
The petitioner, Arun Modale, had filed a First Appeal No. 481/2009 before the Maharashtra State Consumer Dispute Redressal Commission (State Commission) against an order of the District Forum. On 21-11-2013, the State Commission dismissed the appeal in default (DID) due to the absence of the appellant and his counsel. The petitioner contended that he attempted to file an application for recalling the DID order on the same day, but the office of the State Commission did not accept it. He then obtained a certified copy of the DID order and filed the present writ petition before the Bombay High Court, seeking quashing of the DID order and restoration of the appeal. The respondents opposed the petition, arguing that the petitioner was negligent and that the law should not assist a sleeping litigant. However, the respondent No. 2's counsel fairly submitted that the State Commission has no power to recall a DID order. The High Court, after hearing the parties, observed that the State Commission does not have inherent powers to recall its own order dismissing an appeal in default, as the Consumer Protection Act, 1986 does not provide for such power. The Court noted that the petitioner had shown sufficient cause for his absence, as his advocate did not appear, and he had attempted to file a recall application promptly. The Court held that in the interest of justice, the DID order should be set aside and the appeal restored to the file of the State Commission for fresh hearing on merits. The Court directed the State Commission to decide the appeal expeditiously, preferably within six months, and granted liberty to the respondents to raise all contentions. The writ petition was allowed, and the rule was made absolute with no order as to costs.
Headnote
A) Consumer Law - Appeal Dismissed in Default - Power to Recall - State Commission - The State Commission under the Consumer Protection Act, 1986 has no inherent power to recall or set aside an order dismissing an appeal in default, as the Act does not confer such power. The remedy lies in filing a revision before the National Commission or invoking the writ jurisdiction of the High Court. (Paras 3-8)
B) Consumer Law - Writ Jurisdiction - Restoration of Appeal - High Court - The High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution, can set aside an order of dismissal in default passed by the State Commission if the appellant was prevented by sufficient cause from appearing. In this case, the petitioner's absence was due to his advocate's non-appearance, and the petitioner had attempted to file a recall application on the same day, which was not accepted. The High Court restored the appeal to the file of the State Commission for fresh hearing on merits. (Paras 9-10)
Issue of Consideration
Whether the Maharashtra State Consumer Dispute Redressal Commission has the power to recall or set aside an order dismissing an appeal in default, and whether the High Court can interfere under writ jurisdiction to restore such an appeal.
Final Decision
The High Court allowed the writ petition, set aside the order dated 21-11-2013 dismissing the appeal in default, and restored First Appeal No. 481/2009 to the file of the Maharashtra State Consumer Dispute Redressal Commission, Circuit Bench at Aurangabad, for fresh hearing on merits. The State Commission was directed to decide the appeal expeditiously, preferably within six months from the date of receipt of the order. No order as to costs.
Law Points
- Consumer Protection Act
- 1986
- Section 15
- Section 17
- Section 19
- Section 24A
- Section 27
- inherent powers
- restoration of appeal dismissed in default
- power to recall
- State Commission
- High Court writ jurisdiction
Case Details
2014 LawText (BOM) (04) 14
WRIT PETITION NO. 10144 OF 2013
Mr. Ram S. Shinde for petitioner, Mr. V.D. Gunale for respondent No. 1, Mr. S.S. Manale for respondent No. 2
Sangmeshwar Tractor Authorized dealer Ahmedpur through its proprietor Dhanraj vainath Chaware and The Branch Manager Mahesh Urban Co-operative Bank Ltd., Jalkot
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Nature of Litigation
Writ petition challenging the order of the Maharashtra State Consumer Dispute Redressal Commission dismissing the petitioner's first appeal in default.
Remedy Sought
The petitioner sought quashing of the order dated 21-11-2013 dismissing his appeal in default and restoration of the appeal to the file of the State Commission for fresh hearing.
Filing Reason
The petitioner's appeal before the State Commission was dismissed in default due to the absence of the appellant and his counsel. The petitioner attempted to file a recall application on the same day but it was not accepted by the office.
Previous Decisions
The State Commission dismissed First Appeal No. 481/2009 in default on 21-11-2013.
Issues
Whether the State Commission has the power to recall or set aside an order dismissing an appeal in default.
Whether the High Court can interfere under writ jurisdiction to restore an appeal dismissed in default by the State Commission.
Submissions/Arguments
Petitioner: The appeal was dismissed in default due to non-appearance of his advocate; he attempted to file a recall application on the same day but it was not accepted; the State Commission has no power to recall the order; hence the High Court should set aside the DID order and restore the appeal.
Respondent No. 1: The petitioner was negligent and careless; he deserves no sympathy; the law should not assist a sleeping litigant.
Respondent No. 2: Supported respondent No. 1 but fairly submitted that the State Commission has no power to recall a DID order.
Ratio Decidendi
The State Commission under the Consumer Protection Act, 1986 does not have inherent powers to recall or set aside an order dismissing an appeal in default. However, the High Court, in exercise of its writ jurisdiction, can set aside such an order if the appellant shows sufficient cause for his absence. In this case, the petitioner's absence was due to his advocate's non-appearance, and he had promptly attempted to file a recall application, constituting sufficient cause. Therefore, the DID order was set aside and the appeal restored.
Judgment Excerpts
The issue raised by the petitioner in this petition is with reference to an order of the Maharashtra State Consumer Dispute Redressal Commission, Mumbai, Circuit Bench at Aurangabad (hereinafter referred to as the 'State Commission' for brevity).
The petitioner had filed a First Appeal No. 481/2009, before the State Commission. On 21-11-2013, the State Commission dismissed the appeal in view of the appellant as well his Counsel remaining absent.
The petitioner further contends that he attempted to file an application on the same date before the State Commission for filing of his Vakil Patra and recalling of the order of dismissal in default (DID) passed by the State Commission. However, according to the petitioner, the said application was not accepted by the office of the State Commission.
Shri Manale, learned Advocate for respondent No. 2, supports the contention of the respondent No. 1. However, he has very fairly conveyed to the Court that an order of dismissing the appeal in default cannot be recalled and the order of DID, cannot be set aside by the State Commission, since it has no powers to do so.
Procedural History
The petitioner filed a complaint before the District Forum which was decided against him. He then filed First Appeal No. 481/2009 before the Maharashtra State Consumer Dispute Redressal Commission, Circuit Bench at Aurangabad. On 21-11-2013, the State Commission dismissed the appeal in default due to the absence of the appellant and his counsel. The petitioner attempted to file a recall application on the same day but it was not accepted. He then obtained a certified copy of the order and filed the present writ petition before the Bombay High Court on an unspecified date. The High Court heard the matter on 2nd April 2014 and allowed the petition, restoring the appeal.
Acts & Sections
- Consumer Protection Act, 1986: Section 15, Section 17, Section 19, Section 24A, Section 27
