DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Misc. Case No.1 of 2007
1. Mukesh Pandey, S/o. Basudeb Pandey, At/P.O. Sukha, P.S. Dunguripali,
2. Suchitra Padhan, D/o. Bhakta Charan Padhan,
3. Nibedita Panda, D/o. Dhobai Charan Panda,
4. Pragnya Paramita Sahu D/o. Krushna Chandra Sahu,
Complainant No.2 to 4 R/o. village/P.O./P.S. Dunguripali, Dist. Subarnapur
5. Mitu Seth, S/o. Tika Seth,
6. Bijaya Kumar Behera, S/o. Ganesh Behera, At Chhanchani, P.O. Sargul, P.S. Dunguripali, District – Subarnapur
7. Chumbilal Dwari, S/o. Niranjan Dwari, At Cherupali, P.S. Dunguripali, District – Subarnapur.
………… Complainants
Vrs.
1. Bhagaban Padhan, Branch Manager, Dunguripali College, Department of Computer Science, R/o. Hanumanpali, P.O. B.M.Pur, Dist – Subarnapur
2. Bibhudatta Panda @ Mrutunjaya Panda, S/o. Surya Panda, Instructor Cum H.O.D., AISECT, Dunguripali At present At Champapur, P.O./P.S. B.M.Pur, District – Subarnapur.
3. Santosh Kumar Padhi, District Co-ordinator, JVCEP, At Rajendra College Campus(AISECT), P.O./District – Bolangir
4. Sanjeeb Barik, Teacher/Instructor, AISECT at Dunguripali at present at AISECT, Sonepur College Campus, Sonepur.
5. The Director, AISECT, SCOPE CAMPUS, NH – 12 Bhaironpur (Near Mishroad), Hoshangabad Road, Bhopal – 26 (MP)
6. Principal, Dunguripali College, District – Subarnapur.
7. Secretary, Department of Higher Education, Govt. of Orissa, Bhubaneswar.
………… Opp. Parties
Advocate for the Complainants …………. Sri H.B.Nayak
Advocate for the O.P.No. 3 and 5 …………. Sri S.K.Sandha
Present
1. Sri S.C.Nayak, President
2. Sri A. Mishra, Male Member
Date of Judgement Dt.23.12.2009
J U D G E M E N T
By Sri S.C.Nayak, P.
The complainants through their advocate have filed this Misc. Case to setting aside the order passed by this Forum in C.D.C. No.7/2006 on 2.1.2007.
It is the case of the complainants that since the filing of this case the complainants appeared on all dates but the last i.e. 2.1.2007. According to them they are students of AICT of Dunguripali branch and their allegation is regarding non publication of their result and not providing their original mark sheet and certificates.
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According to them their non appearance on the date of argument was not intentional but due to some bonafide mistake i.e. wrong entry in the diary of the advocate engaged by them. According to them unless the order of dismissal is set aside, the substantive rights of the complainant will be defeated and they will be prejudiced. The O.P.No.3 and 5 have filed objection. The other O.Ps. have not filed objection and they also did not take part in the hearing. The main objection of O.P.No.3 and 5 is that there is no statutory provision for restoration.
We have heard the learned counsel for the complainants as well as learned counsel for the O.Ps. Citing the case of Sri U.P. Chaturbedi Vrs. Deomani Kotedar decided by the Hon’ble M.P. State Commission and the case of New India Assurance Co. Ltd. Vrs. R. Srinivasan decided by the Hon’ble Apex Court learned counsel for the complainant vehemently argued before us that although there is no provision for restoration in the C.P.Act, restoration is also not prohibited by the same Act. Therefore he insisted to restore the same case. Learned counsel for the O.P.No.3 and 5 on the other hand argued to dismiss the petition for restoration as there is no provision for the same in the C.P.Act. We have carefully heard the argument of the learned counsels and also given our anxious thoughts to the points raised by them. Admittedly there is no provision for restoration in the C.P.Act and this has also been fairly conceded by the learned counsel for the complainants in his petition for restoration. It is profitable to quote Section 13 Sub-Section 4 of the C.P.Act, the provision of the said Sub-Section is quoted below :- Section 13 Sub-Section 4 for the purpose of this Section the District Forum shall have the same power as are vested in the Civil Court under the C.P.C. 1908 while trying a suit in respect of the following matters namely ; (i) The summoning and enforcing the attendance of any defendants or witnesses and examining the witnesses on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavit, (iv) the requisitioning the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source, (v) issuing of any commission for the examination of the any witnesses, (vi) any other matter which may be prescribed.
From the above provision it is clear that Order 9 of C.P.C. has not been made applicable to proceedings under the C.P.Act. The provisions of C.P.C. has been made applicable to proceedings under the C.P. Act only to a limited extent.
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In New India Assurance Co. Ltd. Vrs. R. Srinivasan’s case in paragraph 18 of the judgement the Hon’ble Apex Court has held “ in absence of the complainant, therefore the court will be well within its jurisdiction to dismiss the complaint for non prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non appearance of the complainant .”
In the instant case we find that this case has not been dismissed on merit it has been dismissed on a date for default when it was fixed for argument. Since in this case students are involved, taking a lenient view and in the peculiar facts and circumstances of this case, following the legal principle as enunciated by the Hon’ble Apex Court in the above mentioned case we set aside the order of dismissal passed by this Forum in C.D.C. No.7/2006 on 2.1.2007 and restore the said case to its original position.
We clarify that this order shall not be treated as a precedent in any other matter as it is passed in the peculiar facts and circumstances of this case.
We find that C.D.C. No.7/2006 is lingering in this forum since 2006. So parties are directed to appear before this Forum in C.D.C. No.7/2006 on 27.1.2010 for argument. No further notice will be issued in the said C.D.C. bearing No.7/2006. The advocate for complainants is directed to collect copy of this order from this office and copy of this order be sent to the O.Ps. under U.C.P. Petition is allowed.
Dated the 23rd day of December 2009
Typed to my dictation
I agree. and corrected by me.
Sri A.Mishra Sri S.C. Nayak
Male Member President
D.C.D.R.F.(S) D.C.D.R.F.(S)
Dt.23.12.09 Dt.23.12.09