RAJEEV HITENDRA PATHAN AND ORS. versus ACHYUT KASHINATH KAREKAR AND ANR.

Citation: [2007] 9 S.C.R. 1057 · Decided: 17-09-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Matter referred to larger bench

Judgment (excerpt)

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RAJEEV HITENDRA PA THAN AND ORS. 
A 
v. 
ACHYUT KASHINATH KAREKAR AND ANR. 
SEPTEMBER 17, 2007 
(DR. ARIJIT PASA Y AT AND LOKESHW AR SINGH P ANTA, JJ.] 
B 
Consumer Protectio,, Act, 1986: s. 22(A)-Power of State Commission 
to restore complaint which was dismissed for default-Divergent view of 
coordinate benches-Matter referred to larger bench to consider the issue. C 
The question which has arisen for consideration in the present appeal 
is whether the National Commission was right in holding that the State 
Commission has the power to restore-the complaint which was dismissed for 
default. 
In appeal to this Court, appellant contended that the view contrary to 
r 
what has been stated in *New India Assurance's case has been taken in 
**Jyotsana's case. Further, Consumer Protection Act, 1986 was amended in 
2003 and by the newly introduced Section 22A, National Commission was 
given power of restoration but no such power was conferred on the State 
Commission. 
Referring the matter to the larger bench, the Court 
HELD: In the latter case i.e. *New India Assurance's case, reference 
was not made to the earlier decision in **Jyotsana's case. Further the effect 
D 
E 
of the amendment to the Act in 2003 whereby s. 22(A) was introduced has the F 
effect of conferment of power of restoration on National Commission, but not 
to the State Commission. In view of the divergence of views expressed by 
coordinate Benches, the matter is referred to larger bench to consider the 
question whether the State Commission has the power to recall the ex-parte 
order. (Para 7) (1060-C) 
G 
.,,;. -
*New India Assurance Co. Ltd. v. R. Srinivasan, (2000) 3 SCC 242; 
**Jyotsana Arvindkumar Shah and Ors. v. Bombay Hospital Trust, (1999) 4 
sec 325, referred to. 
1057 
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1058 
SUPREME COURT REPORTS 
[2007] 9 S.C.R 
A 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4307 of2007. 
B 
·C 
D 
E 
F 
G 
H 
From the Judgment and Order dated 16.11.2005 oftheNational Consumer 
Disputes Redressal Commission, New Delhi in Revision Petitio No. 551 of 
2005. 
Siddharth Bhatnagar and V.D. Khanna for the Appellants. 
Ravindra Keshavrao Adsure for the Respondents. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASA Y AT, J. 1. Leave granted. 
2 .. Challenge in this appeal is to the order passed by the National 
Consumer Disputes Redressal Commission, New Delhi (in short 'National 
Commission') holding that the State Commission has the power to restore the 
complaint which was dismissed for default. For coming to the aforesaid 
conclusion the National Commission relied upon the decision of this Court 
in New India Assurance Co. Ltd. v. R. Srinivasan, {2000] 3 SCC 242. 
3. Learned counsel for the appellant submitted that the view contrary 
to what has been stated in New India Assurance's case (supra) has been 
taken in Jyotsana Arvindkumar Shah and Ors. v. Bomb<fY Hospital Trust, 
[ 1999] 4 SCC 325. Further, Consumer Protection Act, 1986 (in short the 'Act') 
was amended in 2003 and by the newly introduced Section 22A, National 
Commission was given power of restoration but no such power has been 
conferred on the State Commission. 
4. Learned Counsel for the respondents on the other hand submitted 
that the National Commission has referred the case to the factual position 
. and, therefore, held that restoration was permissible. 
5. In Jyotsana's case (supra) it was observed at para 7 as follows: 
"We heard learned Counsel on both sides for quite some time. When 
we asked the learned Counsel appearing for the respondent to point 
out the provision in the Act which enables the State Commission to 
set aside the reasoned order passed, though ex parte, he could not 
lay his hands on any of the provisions in the Act. As a matter of fact, 
before the State Commission the appellants brought to its notice the 
two orders, one passed by the Bihar State Commission in Chief 
J. 
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RAJEEV HITENDRA PATHAN v. ACHYUT KASHINATH KAREKAR [PASAYA I, J.Jl059 
.>,-
Manager, UCO Bank v. Ram Govind Agarwal, (1996) I CPR 351 and A 
the other passed by the National Commission in Director, Forest 
Research Institute v. Sunshine Enterprises, (1997) I CPR 42 holding 
that the redressal agencies have no power to recall or review their ex 
parte order. The State Commission had distinguished the above said 
orders on the ground that in those two cases the opponents had not B 
only not appeared but also failed to put in their written statements. 
In other words, 

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