- (1.) THE opposite party-appellant has filed this appeal under s. 15 of the Consumer Protection Act, 1986 (No. 68 of 1986) (which for the sake of brevity hereinafter will be referred to as "the Act") against the order dt. 12-6-89 passed in Complaint Case No. 49/89. THE District Forum, Udaipur by its order dt. 12-6-89 held that the preliminary objection raised by the opposite-party cannot be accepted and, therefore, the preliminary objection is overruled. THE District Forum further directed by the same order to pay to the complainant Rs. 500/-as costs to meet the expenses of coming and going for he had come to attend the hearing of the case. Against this order the appeal has been filed. THE appellant has not mentioned the specific provision of the Act under which this appeal has been filed against the order overruling the preliminary objection and awarding costs. It is not necessary to make a detailed probe into the question whether this appeal is maintainable under s. 15 of the Act against the interim order passed during the pendency of the complaint which is not a final order under s. 14 of the Act. We have treated such appeals as revisions under s. 17 (b) of the Act. We propose to decide this appeal treating it as a revision.
(2.) THE appellant has not appeared before us. It has been provided in rule 8 (6) of the Consumer Protection (Raj.) Rules, 1987 ("the Rules") that on the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State Commission. Material part of rule 8 (6) of the Rules for the present purpose is as follows : "if appellant or his authorised agent fails to appear on such date, the State Commission may decide the appeal on the merits of the case. If respondent or his authorised agent fails to appear on such date, the State Commission shall proceed ex-parte and shall decide the appeal ex-parte on merits of the case. " In the absence of any provision in the Rules in regard to revision, the same procedure in regard to the appeals is mutatis mutandis applicable to revisions. We, therefore propose to decide this appeal (treating it as a revision) on merits in the absence of the appellant. It is not necessary to recount the facts leading to this appeal (revision) in view of the short question involved in it. A perusal of the order dt. 12-6-89 shows that it is signed by the President of the District Forum, Udaipur. The order is conspicuously silent as to the presence of the other two members constituting the Bench of the District Forum when the order dt. 12-6-89 was passed. There is nothing in the order to suggest that they participated in the proceedings dt. 12-6-89. It is also not mentioned in the order that the other two members concurred with order which has been passed by the President of the District Forum. It needs to be mentioned here that there are two order-sheets of 12-6-89. First order-sheet recites that arguments on the preliminary objection relating, the jurisdiction were heard and the case may be put up for orders on 13-6-89. This order-sheet is signed by one of the members of the District Forum. May he be its President. The second order sheet is of the same date and it contains the order appealed against. After examining the relevant provisions of the Act and the Rules, we have held in Rajasthan State Electricity Board Vs. Kanchan Singh Verma (Appeal No. 16/89 decided on July 7,1989) as under - "bearing in mind the above principles of interpretation and the object and the intendment of the legislation in promulgating the Act and the law laid down by the Supreme Court in the aforesaid judgment, we will determine validity or otherwise of the order. There is no provision for fixing the quorum, if one member out of the three members including the President is unable to attend a sitting of the District Forum, the orders affecting the rights of the parties (complainant and opposite-party) passed would not be rendered invalid as majority of members would constitute quorum for a sitting of the District Forum. We are of opinion that any order of the District Forum affecting the rights of the parties, i. e. , the complainant and opposite-party which is passed during the pendency of the complaint should be pronounced and signed by atleast two members of the District Forum constituting the Bench, for, this is permissible under the provisions of rule 4 (5) and rule 3 (8) of the Rules as two members atleast constitute the Bench of the District Forum. In this case, as stated above the order is signed by one member, viz. the President of the District Forum, alone and there is nothing in the order to show that the other members or member participated in the proceedings and concurred in the order passed by the President of District Forum. The District Forum, while passing the order under appeal has exercised its jurisdiction illegally or at any rate with material irregularity , when the interlocutory order dated March 28, 1989 was passed by the single member (President) and, therefore, it has to be set aside. " It has not been disputed before us by the complainant-respondent that the order dt. 12-6-89 appealed against does affect the rights of the parties (complainant and opposite-party ). The order appealed against has affected the rights of the opposite-party-appellant inasmuch as the District Forum has held that the preliminary objection of the opposite-party-appellant raised under s. 2 (c) (4) of the Act is not maintainable and it is overruled. Not only this a direction for payment of costs of Rs. 500/- has also been made in favour of the complainant-respondent and against the opposite-party-appellant. We are of opinion that the District Forum while passing the order under appeal has exercised its jurisdiction illegally or at any rate with material irregularity when it passed the order dt. 12-6-89, affecting the rights of the opposite party-appellant as it was passed by the single member (President) and, therefore, it has to be set aside. Treating this appeal as revision, we allow this revision and set aside the order dt. 12-6-89. As the appellant has not appeared, there will be no order as to costs. This order, however, will not preclude the District Forum from passing any fresh order in respect of the same subject matter in accordance with law during the pendency of the complaint, if the facts and circumstances of the case so warrant. .
(3.) ORDER pronounced on August 9, 1989. .;