Full Judgment
A.P. Chowdhri, President:
1. This order would dispose of appeals A-372 and A-401 of 1994, as common question of law has been raised therein. In various complaints detailed in the order of the District Forum, the opposite parties failed to appear and were proceeded ex-parte. The complaints were disposed of ex-parte. On behalf of the opposite parties, applications for setting aside the ex- parte order were moved. The same were contested : The various applications were dismissed by the District Forum by its order dated 16.8.94 on the ground that the District Forum had no power to set-aside the final order passed. Aggrieved by the order, both these appeals have been filed.
2. We have heard Mr. Virender Bhatt, Advocate, for the appellants and Mr. Vivek Srivastava, Advocate for the respondents.
3. It would be convenient to notice the facts in appeal No. A. 401/94, The complaint was instituted in the District Forum in 1992. The opposite party failed to appear and the complaint was allowed by order dated 27.4.92. An application for setting aside the ex-parte order was made before the District Forum on 29.10.92. The main ground taken was that no service had been effected in the complaints. The application was, however, dismissed, as already stated.
4. The contention of Mr. Vivek Srivastava is that the Fora constituted under the Consumer Protection Act had been vested with only limited powers laid down in Sub-section 4 of Section 13 of the Act. He further submitted that under Clause (vi) the Fora is invested with powers which are laid-down in the rules framed under the Act. In Rule 4(8) of the Delhi Consumer Protection Rules, 1987 the only power vested in the Fora is to decide the complaint ex-parte where the opposite party or its authorised agent fails to appear on the date of hearing. In other words, there is no power given to set-aside the ex-parte order. In the absence of any such power having been vested the Fora did not have jurisdiction to set-aside the ex-parte order and the order under appeal called for no interference. Mr. Srivastava has placed reliance on a number of decisions.
5. The contention of Mr. Virender Bhatt, on the other hand, is that the power to set-aside an ex-parte order final order deciding the case ex- parte must be held to be implied or incidental to the power to proceed ex-parte. Mr. Bhatt further submitted that this was a case where there was no service of notice and it would be a travesty of justice that the appellant should have been condemned unheard. The District Forum proceeded on the assumption that the registered notice had not been received back undelivered and the ordinary presumption was that the opposite party had been served. It was submitted that the presumption of service is are but table one and in the present case it had been pleaded that the opposite party had not been served at any stages.
6. We have carefully considered the respective submissions. Recently we examined the question whether the District Forum had power to restore the complaint dismissed for default. We have held in DBA v. B.K. Malhotra A-505/ 94 decided on 28.11.95 that the District Forum had such a power. The main reason for the said conclusion was that the Supreme Court had laid- down in Grindleys Bank v. Central Government Industrial Tribunal, AIR 1981 SC 606 that by rule of statutory construction a Tribunal is endowed with such ancillary and incidental powers as are necessary to discharge it functions effectively for the purpose of doing complete justice between the parties. .The power to proceed ex-parte or decide a matter ex-parte therefore includes power to set-aside the same, in other to do complete justice between the parties. We are of the view that the aforesaid authority of the Supreme Court clearly applies to the present case. The Supreme Court was dealing with the question of setting- aside ex-parte award given by the Central Government Industrial Tribunal. It was conceded that neither Industrial Disputes Act nor the rules framed there under conferred any power on the Tribunal to set-aside an ex-parte award. In this context the Apex Court observed that although the Tribunal or other authorities specified in Section 11 of the Industrial Disputes Act were not Courts but they had trappings of a Court and they exercised quasi-judicial functions. It was also observed that all these authorities being quasi-judicial in nature, were expected to determine matters referred to them objectively and to exercise their discretion in a judicial manner without caprice and according to the general principles of law and rules of natural justice. The Supreme Court also laid-down that there was no finality attached to an ex-parte award because it was always subject to its being set-aside on sufficient cause being shown.
7. We may briefly deal with the authorities reported on by Mr. Srivastava. In Ravi Kant v. Kailash Chand, III (1992) CPJ 74 (NC) the question for consideration was restoration of appeal dismissed for default by the National Commission itself. The question of incidental powers to recall such an order was expressly left open. Moreover, the application for restoration was dismissed on merits as no case for restoration was made out.
8. In A.P. State Electricity Board v. A.P. State Electricity Consumer Association, I (1992) CPJ 148 (NC) it was observed by the National Commission that there cannot be any concept of inherent powers. This authority does not advance the case of the respondent. There is a clear distinction between inherent powers and incidental powers and their Lordships of the Supreme Court were dealing with case of incidental powers as distinguished from inherent powers.
9. In Sunil Blood Bank and Transfusion Centre v. Naresh Kumar, First Appeal No. 114/91 decided by the National Commission on 19.1.92, the National Commission laid-down that the State Commission should not have imported hypertechnical procedure of debarring a party from filing his written statement and adducing his evidence in opposition to the complaint/ petition on the ground that he was absent on an earlier date of hearing and had been proceeded ex-parte. To adopt such a procedure, it was observed, would constitute denial of natural justice. This authority supports the stand of the appellant rather than helping the respondent. Lastly, in Lal Chand Pokharna v. United India Insurance Company Ltd., II (1995) CPJ 87 the opposite party entered appearance in a complaint case. On a later date, the opposite party failed to appear and a final order was passed. The application for setting-aside the ex-parte order was dismissed by the Rajasthan State Commission. The significant observation made was that the only remedy of such a party was to prefer an appeal. Moreover, the State Commission did not find any case on merits. In our view, and for the reasons herein above mentioned, the authorities relied on by Mr. Srivastava do not advance his case.
10. For the foregoing reasons, we allow the appeals, set-aside the impugned order dismissing the application for setting-aside the ex-parte award. Admittedly, the District Forum has not dealt with the merits of the application for setting-aside the ex-parte order. We, accordingly remit the case in both the appeals to District Forum for disposal of the application for restoration according to law no merits on the footing that the District Forum has the power to set-aside the ex-parte order, if sufficient cause is made out for doing so.
11. As considerable time has elapsed since the complaint was initially filed, we further direct the District Forum to dispose of the matter by giving it priority over other cases. The parties, through their Counsel, are directed to appear before the District Forum on 31.5.96 for further proceedings according to law. A copy of this order be communicated to both the parties as well as District Forum.
Appeal allowed.