- (1.) The appellant which is a Co-operative House Building Society had filed a complaint against the respondent which was allowed by the District Forum by its judgment and order dated 7-2-1996/15-2-1996 against which the respondent filed an appeal which was dismissed by the State Commission by its judgment dated 17-10-1996. The respondent filed a revision before the National Commission which was dismissed in default on 8-12-1998. The respondent thereafter filed an application under Order IX, Rule 9 read with Section 151 of the Code of Civil Procedure for recalling the order dated 8-12-1998 by which the revision was dismissed in default. This application was allowed by order dated 21-1-1999 and the order dismissing the revision in default was recalled and the revision was restored to its original number. It is against this order that the present appeal has been filed.
(2.) The principal contention raised by the learned counsel for the appellant is that there is no provision under the Consumer Protection Act, 1986 or the rules made thereunder for restoration of a revision which is dismissed in default. Reliance for this purpose was placed on the decision of this Court in Jyotsana Arvindkumar Shah v. Bombay Hospital Trust, (1999) 4 SCC 325. Learned counsel for the respondent on the other hand has contended that the revision was dismissed on account of the mistake of the Commission itself and the Commission shall be deemed to possess the inherent power to correct its mistake in recalling the order and restoring the revision to its original number. It is contended that the act of the Court will not prejudice any party is the basic principle of the administration of justice. It is contended that in this case as the facts set out in the application would indicate that the Commission and its office had committed a mistake in not intimating the counsel, engaged by the respondent, of the date fixed for hearing of the revision and, therefore, the counsel could not appear on that date and the revision was dismissed in default. It is also stated that even in the cause list the name of the counsel was not shown.
(3.) In order to appreciate the contention of the parties we may set out the facts mentioned in the application for restoration as under:- "2. That the brief facts for deciding the present application are given below:- i) 15-10-98:That the present case was earlier fixed on 15-10-98 before this Hon'ble Commission for hearing and was adjourned for filing replies and rejoinder by the parties without fixing any particular date of next hearing, as per the practice of this Hon'ble Court that the next date of hearing is always intimated to the counsel of both the parties by the Registry of this Hon'ble Court by post. It may be clarified here that in fact, the petitioner-Improvement Trust, Ludhiana initially engaged Ms. Indira Jaisingh, Sr. Advocate and Mr. Nikhil Nayyar as their Advocates at the time of filing of the present Review Petition No. 1359/96 but since Ms. Indira Jaisingh, Sr. Advocate had not appeared on the last date of hearing i.e. 15-10-98 and refused to appear in the present case due to other engagements, therefore, the Petitioner-Trust decided to change its Advocate in the present case and accordingly after taking no objection certification from their previous counsel, engaged a new counsel Sh. Pardeep Gupta, Advocate in the present case and vide letter dated 29-10-98 authorised Sh. Pardeep Gupta, Advocate to appear in the present case on behalf of Improvement Trust. ii) 2-11-98:That on 2-11-98 Sh. Pardeep Gupta, Advocate filed Power of Attorney before the Registry of this Hon'ble National Commission on behalf of the petitioner Improvement-Trust along with his address written on the Power of Attorney and the Registry of this Hon'ble Commission duly acknowledged/stamped the duplicate copy of the index of filing Power of Attorney. A copy of the said acknowledgement dt. 2-11-1998 given by this Hon'ble Commission to the new Advocate Sh. Pardeep Gupta is annexed hereto with this application as Annexure A-1. iii) That since as per the well-known practice of this Hon'ble National Commission, in each and every case, every next date of hearing is being intimated by post to the Counsel of both the parties, so accordingly Sh. Pardeep Gupta, Advocate was awaiting the letter from Registry of this Hon'ble Commission to appear on the next date of hearing. It is specifically mentioned here that till date neither Sh. Pardeep Gupta, Advocate, nor the petitioner-Improvement Trust, Ludhiana was informed by the Registry of this Hon'ble Commission about the date, in question, fixed i.e. 8-12-98. It may also be clarified here that the earlier counsel of the Petitioner-Improvement Trust had also not informed about the next date of hearing to the petitioner-Trust nor to their newly appointed counsel Sh. Pardeep Gupta, Advocate. iv) Hence, the non-appearance of Sh. Pardeep Gupta, Advocate counsel for the petitioner for the date fixed i.e. 8-12-98 is solely due to the fact that he was not informed by the Registry of this Hon'ble Commission about the said date fixed nor Sh. Pardeep Gupta, Advocate was aware about the said date fixed by any source. v) It may also be clarified here that though two other Review Petitions Nos. 729 and 730 of 1998 were also fixed for hearing on the same day i.e. 8-12-98 filed by the petitioner- Trust in a different case but since the petitioner-Trust was to seek time for filing the rejoinder in the said cases, so accordingly, Sh. Pardeep Gupta, Advocate requested his associate Advocate Sh. Rattan Lal to make a request on his behalf before this Hon'ble National Commission for adjournment of these two Review Petitions Nos. 729 and 730 of 1998 and accordingly the said request was accepted and the said cases were adjourned. Since two other following cases of Sh. Pardeep Gupta, Advocate, were fixed before the Hon'ble High Court of Delhi i.e. in Court No. 2 Item Nos. 2 and 3 Court No. 5, Item No. 30 so as per the planning Sh. Pardeep Gupta, Advocate straightway rushed to the High Court to attend those cases and Sh. Rattan Lal, Advocate, was requested to appear before this Hon'ble National Commission for attending the above mentioned two Review Petitions Nos. 729 and 730 of 1998. In these two cases, the Registry of this Hon'ble Court sent a letter about the said date fixed i.e. 8-12-98 to the counsel for the petitioner-Trust i.e. Sh. Pardeep Gupta, Advocate but no letter was sent for the present case, in question. It may also be mentioned here that even in the Daily List put up on the Notice Board, the name of the newly appointed counsel Pardeep Gupta was not shown and the name of the earlier counsel Mr. Nikhil Nayyar was shown. Moreover, the parties name i.e. of the respondent was not shown in full i.e. instead of The Shaheed Bhagat Singh Co-op. Housing Society Ltd., the list stated "The Shahdeed Co-op. House Building Society Ltd." Secondly, in the absence of intimation about the date fixed i.e. 8-12-98 to the newly appointed counsel of the petitioner-Trust i.e. Sh. Pardeep Gupta, Advocate, the absence of the petitioner or his counsel is bona fide one and not intentional one. If Sh. Pardeep Gutpa, Advocate, would have come to know about the date fixed i.e. 8-12-98, in the present case, he would have certainly instructed his Associate Sh. Rattan Lal to appear in the present case also as he was appearing in other cases before this National Commission on the same date i.e. 8-12-98. Hence, the non-appearance is a genuine one and not intentional." ;