1. This application under Article 227 of the Constitution of India is directed against an order dated 22nd June, 2010 passed by the State Consumers Disputes Redressal Commission in RP No. 52 of 2010 setting aside the order dated 18-03- 2010 passed by the District Consumer Redressal Forum, Kolkata Unit-I in CDF Case No. 137 of 2010 at the instance of the petitioner herein.
2. Heard Mr. Banerjee, Learned Advocate, appearing for the petitioner and Mr. Chatterjee, Learned Advocate for the opposite party. Considered the materials on record including the order impugned.
3. Let me now consider as to how far the Learned State Commission was justified in passing the impugned order in the facts of the instant case. A complaint case was initiated by the opposite party herein against the petitioner before the District Consumer Redressal Forum, Kolkata Unit-I. The said proceeding was registered as CDF case No. 137 of 2006. The petitioner was contesting the said complaint case by filing objection therein.
4. The complainant/opposite party submitted his evidence in chief on affidavit before the Learned District Forum. As per the practice prevalent before the Forum, the petitioner herein was required to file the questionnaires in the said proceeding for cross-examination of the complainant/opposite party. Though opportunity was given to him for delivery of such questionnaires to the complainant for his answer but he did not submit such questionnaires in the said proceeding. Instead of submission of such questionnaires, the petitioner herein submitted his affidavit for dealing with the evidence disclosed by the complainant in his chief on affidavit.
5. In this set of facts, the hearing of the said complaint case commenced on 25/01/2010. After commencement of hearing of the argument, the petitioner herein filed an application on 18/03/2010 praying for Forums permission to submit the questionnaires for cross-examination of the complainant.
6. Though the Learned Forum expressed its anguish because of long pendency of the said proceeding as well as for negligent attitude of the petitioner herein in contesting the said proceeding, but ultimately the Forum allowed the petitioner to submit such questionnaires before the Forum subject to payment of cost of Rs.2,000/- within 30th April, 2010, Such permission was granted to the petitioner as the Forum was of the view that in order to render equitable justice, the petitioner should be given such permission.
7. The opposite party herein felt aggrieved by the said order. Hence he filed a revisional application before the State Consumer Disputes Redressal Commission. Since none appeared on behalf of the petitioner herein before the Learned Commission, in spite of due service of notice upon him, the said revisional application was ultimately decided ex parte against the petitioner herein. The said revisional application was ultimately allowed by the Learned Commission. The order which was impugned in the said revisional application was set aside by the Learned Commission. The Learned Commission held that the District Forum was not justified in allowing such belated prayer of the petitioner particularly when the hearing of argument in the said proceeding had commenced. The Forum was thus directed to dispose of the said matter as early as possible but preferably within a period of two months from the date of communication of the said order to the Forum. The Forum was also directed to proceed with the said complaint case from the stage of further hearing as was directed by the Forum itself earlier.
8. The petitioner is aggrieved by the said order. Hence the petitioner has come before this Court with this application.
9. A preliminary objection regarding maintainability of this application under Article 227 of the Constitution of India was raised by Mr. Chatterjee, learned Advocate, appearing for the opposite party who contented that in view of the provision contained in Section 21 of the Consumer Protection Act, 1986, the impugned order being appealable before the National Commission, this application under Article 227 of the Constitution of India is not entertainable by this Court. By referring to the decision of the Honble Supreme Court in the case of Shalini Shyam Setty vs. Rajendra Shankar Palit reported in 2010(4) ICC page 271, Mr. Chatterjee submitted that when the remedy by way of appeal is available under the Statute itself, this Honble Court should not exercise its power of superintendence under Article 227 of the Constitution of India for assessing the correctness of the order of the State Commission. Accordingly, he prayed for dismissal of this revisional application.
10. In reply to such submission of Mr. Chatterjee, Mr. Banerjee, learned Advocate for the petitioner, submitted by referring to the following decisions of the Honble Supreme Court as well as this Honble Court that entertainment of the revisional application by this Court is not totally forbidden because of availability of an alternative forum for redressal of the grievance under the Act:-
(i) In the case of Rabindranath Bag vs- Partha Sarathi bag reported in (2008) 3 WBLR (Cal) 904.
(ii) In the case of Celina Coelho Pareira (Ms) and others vs- Ulhas Mahabaleshwar Kholkar and another reported in (2010) 1 SCC 217.
(iii) In the case of Abdul Razzap (decease) through LRS vs- Mangesh Rajaram Wagle and others reported in (2010) 2 SCC 432.
(iv) In the case of Surya Devi Rai vs- Ram Chandra Rai reported in (2003) 6 SCC 675.
11. Mr. Banerjee further contended that under the scheme of the Consumer Protection Act, though an ex parte order passed by the National Commission can be set aside by the said Commission, provided however the reasons for nonappearance before the said commission on the date of hearing, can be sufficiently explained by the defaulting party, but such a remedy is not available to a defaulting party before the State Commission. In support of such submission he relied upon a decision of the Honble Supreme Court in the case of Jyotsna Arvind Kumar Shah vs- Bombay Hospital Trust reported in (1999) 4 SCC 352.
12. Mr. Banerjee further contended that since his client was out of station at the relevant time, he was unaware of the said proceeding and/or the date of hearing fixed before the Learned State Commission and as a result, his client could not represent himself before the commission in the said hearing. Mr. Banerjee further contended that since there is no provision for setting aside the ex parte order by the State Commission, his client is unable to approach the said commission for setting aside the said ex parte order passed by the Learned State Commission, even though he can justify the reasons for his non-appearance before the Learned State Commission in course of hearing of the said proceeding.
13. Mr. Banerjee thus contended that under such circumstances, his client has no other option but to approach this Honble Court for assailing such an ex parte order before this Court so that the said revisional application is remanded back to the Learned State Commission for its reconsideration afresh in the presence of both the parties. Some documents were also filed before this Court to show that his client was out of station at that relevant time when the service of notice of the said revisional proceeding was allegedly tendered to his client and the same was allegedly refused by him.
14. Since a preliminary objection regarding maintainability of this application has been raised in the instant proceeding, this Court wants to deal with the said objection first before entering into the merit of this revisional application. It is rightly pointed out by Mr. Chatterjee that the order which is impugned in this revisional application is appealable before the national commission under Section 21(a)(ii) of the said Act. As such the petitioner herein is not remediless. As a matter of fact the scope of the appeal is much more wider than the superintendence jurisdiction of the High Court under Article 227 of the Constitution of India. Even the justification for non-appearance can be much more effectively projected before the Learned National Commission in the appeal. On the contrary, this Court, sitting in this jurisdiction under Article 227 of the Constitution of India, cannot convert itself into a Court of original jurisdiction, for ascertaining the sufficiency of the reason for the non-appearance of the petitioner before the Learned State Commission.
15. Fact remains that the notice which was sent for effecting service upon the petitioner by the State Commission, came back with the postal remark refused. Refusal is a good service. As such this Court holds that the Learned State Commission did not commit any illegality in accepting such service and/or in proceeding with the hearing of the said proceeding ex parte against the petitioner, as he remained absent in spite of such service. The petitioner, however, is now, for the first time, trying to explain the reasons for his nonappearance due to want of his knowledge about the said proceeding by denying such service upon him before this Court. It was contended by him that he was out of station at the relevant time when such notice was allegedly tendered to him and the same was allegedly refused by him. Thus the petitioner, in fact, wants to challenge the correctness of the postal report. In my view, for ascertaining the correctness of such contention of the petitioner, the Court is not only required to take evidence of the parties but the Court is also required to examine the postal peon who recorded such remark of refusal on the postal envelop. There is hardly any scope for adjudication of such a dispute before this Court under Article 227 of the Constitution of India for conducting such a trial on evidence. As such, even if this Court holds that availability of an alternative remedy by way of appeal is not an absolute bar in entertaining an application under Article 227 of the Constitution of India but still then, this Court holds that since the dispute of such nature cannot be conveniently and effectively considered by this Court for the reason ass aforesaid, this Court cannot accept the contention of Mr. Banerjee that supervisory jurisdiction can be exercised by this Court as there is no provision for setting aside the ex parte order by the Learned State Commission under the Statute.
16. That apart this Court cannot be unmindful of the principles laid down by the Honble Supreme Court in the above mentioned decisions, on the question regarding exercise of the High Courts jurisdiction under Article 227 of the Constitution of India. In fact, the following principles were formulated by the Honble Supreme Court as to where and when such jurisdiction can be exercised by the High Court.
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction of High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court of tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Siingh (supra) and the principles in Warayam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to its, within the bounds of their authority.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to its, is a possible view. In other words the jurisdiction has to be very sparingly exercise.
(i) High Courts power of superintendence under Article 227 cannot be curtailed by any statue. It has been declared a part of the basis structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Courts power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as to does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
17. Following the aforesaid decisions of the Honble Supreme Court, this Court holds that when an alternative statutory mode of redressal is provided in the statute by way of appeal before the Learned National Commission, this Court does not feel any justification to interfere with the impugned order, particularly when this Court does not find any perversity therein, even though this Court agrees with the submission of Mr. Banerjee that the High Courts power of superintendence under Article 227 of the Constitution of India cannot be curtailed by any statute.
18. On perusal of the order passed by the Learned District Forum, this Court finds the said Forum after commencement of the hearing of the argument permitted the petitioner to deliver the questionnaires for cross-examination of the complainant/opposite party by holding inter alia that equitable justice demands grant of such permission. This Court cannot agree with such findings of the Learned District Forum, as a party, cannot be permitted to cross-examine the witness of his adversary after commencement of hearing of argument. If such permission is granted, the effect of the argument advanced by the opposite party will practically lose its importance as the defaulting party will get sufficient opportunity to cross-examine his adversarys witness for demolishing the effect of the argument of its adversary.
19. Thus this Court holds that if such permission is given to the petitioner at this stage of the complaint case, the trial of the said proceeding will be totally frustrated. As such this Court agrees with a findings of the Learned State Commission to the effect that such permission cannot be granted to a defaulting party in a part heard proceeding and the payment of cost as a condition for grant of such leave cannot be an appropriate compensation to the opposite party herein in such a situation.
20. Accordingly, this Court does not find any justification to interfere with the impugned order. This revisional application, thus, stands rejected. The Learned District Forum is thus directed to dispose of the said proceeding by following the direction passed by the Learned State Commission, as early as possible but preferably within two months from the date of communication of the order. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.