Darshan Khurana Vs. Smt. Pushpa Lata and Others - Court Judgment

Lokeshwar Prasad, President:

1. Since the above mentioned petitions, filed by the petitioner, under Section 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act) are directed against a common order have common facts and also raise common questions for consideration, the same with the consent of the learned Counsel for the petitioner, have been heard together and are being disposed of by this common order.

2. The facts, relevant for the disposal of the above mentioned petitions lie in a narrow compass. The respondents, in the above mentioned petitions, had filed separate complaints under Section 12 of the Act before the District Forum alleging deficiency in service on the part of the petitioner. The complaints, so filed by the respondents, were allowed by the District Forum. Since the petitioner did not comply with the order passed by the District Forum on the complaint filed by the respondents, the respondents had filed separate applications under Section 27 of the Act for the implementation of the orders. The order being impugned in the present proceedings has been passed by the District Forum whereby the District Forum has directed for the issue of non-bailable warrant of arrest against the petitioner.

3. Feeling aggrieved, the petitioner has filed the above mentioned petitions under Section 17(1)(b) of the Act.

4. We have heard the learned Counsel for the petitioner at length on the question of admission of the above mentioned petitions and have also carefully gone through the documents/material on record. As already stated the above mentioned petitions have been filed by the petitioner under Section 17(1)(b) of the Act which reads as under :

“Jurisdiction of the State Commission—(1) Subject to the other provisions of this Act the State Commission shall have jurisdiction—

xxx           xxx     xxx     xxx

xxx           xxx     xxx     xxx

xxx           xxx     xxx     xxx

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.       (Underlined by us)

5. On a bare perusal of the above provision, it is apparent that the power under Section 17(1)(b) of the Act are extraordinary powers and the same can be exercised by this Commission only in the circumstances/situations specified in Clause (b) of Sub-section (1) of Section 17 of the Act and in no other circumstance/situation. In other words, the scope of a petition filed under Section 17(1)(b) of the Act is limited one. Analogous provision exists in the Civil Procedure Code, 1908 (hereinafter referred to as ‘the CPC), in Section 115 dealing with ‘Revisions. Even before the amendment, effected in the CPC, by the amending Act of 1976, Section 115, CPC, as it existed prior to the amendment, had been subjected to a large number of judicial decisions and the scope and ambit of Section 115, CPC has been dilated upon by various Courts including the Honble Supreme Court. In case Pandurang Dhondi Chougule and Others v. Maruti Hari Jadhav and Others, AIR 1966 SC 153, Their Lordships of the Honble Supreme Court, while examining the ambit and scope of Section 115, CPC, have held :

“The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceeding instituted before subordinate Courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.”       (Emphasis Supplied)

Thereafter in case M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379, it was held by Their Lordships of the Honble Supreme Court that the jurisdiction of the High Court under Section 115 of the CPC is of a limited character and the provisions contained in Section 115, CPC are not directed against conclusions of law and fact in which question of jurisdiction is not involved. In the case of M.L. Sethi (supra), the Honble Supreme Court, referred with approval, the decision of the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh, (1884) II Ind. App. 237 (PC), and in case Balakrishna Udayar v. Vasudeva Aiyar, AIR 1917 PC 71, the Honble Supreme Court quoted what the Privy Council had stated in case N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156. It was held that Section 115 empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have exercised jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, i.e., in breach of some provisions of law, or with material irregularity, i.e., by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision and if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate Courts on questions of fact or law.

6. The operative portion of the order being impugned in the above proceedings reads as under :

“O.P. Shri Darshan Khurana has failed to comply the order dated 27.3.2002. The appeal filed before the Delhi State Consumer Disputes Redressal Commission by the O.P. has also been withdrawn and stands dismissed. The O.P. has been seeking time again and again for making payment but he has intentionally failed to do so. The cheques issued by the O.P. to the complainants have been dishonoured for want of funds. The police has also failed to execute the warrant and has reported that the O.P. Shri Darshan Khurana is absconding to evade his arrest. Hence issue fresh non-bailable warrant against Shri Darshan Khurana and also issue attachment order of the property of the O.P. as provided under Section 25 of the Consumer Protection Act, 1986. Fixed 7th July, 2003 for further proceedings. “

7. On a perusal of the above order it is apparent that the petitioner time and again intentionally sought time for making payment but even the cheques issued by the petitioner to the respondents had been dishonoured for want of funds. The authorities of the police have reported that the petitioner was absconding. In the above situation the learned District Forum was fully justified in ordering for the issue of non-bailable warrant of arrest so as to secure the presence of the petitioner. If the criteria as per settled law is applied to the above mentioned petitions, it cannot be stated that, in the given facts, the District Forum while passing the impugned orders has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with any material irregularity.

8. In view of the above discussion, the above mentioned petitions, filed by the petitioner, are devoid of substance. The same merit dismissal. Accordingly, the same are dismissed in limine with no order as to costs.

Petitions dismissed.