* HON’BLE SRI JUSTICE A.GOPAL REDDY + CIVIL REVISION PETITION Nos.3793, 3794, 3939, 3938, 3940, 3941, 3942, 3946, 3947 and 3948 of 2009 %12.08.2010 # Koganti Atchutha Rao and another … Petitioners Vs. $ Koganti Vineeth … Respondent ! Counsel for the Petitioners: Sri C.Ramachandra Raju Counsel for the Respondent: Sri Ch.Venkata Ramana <Gist : >Head Note: ? Cases referred: 1. 2000(3) SCC 242 2. 2003(6) SCC 675 3. 1999(4) SCC 325 4. 2007(7) SCC 667 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION Nos.3793, 3794, 3939, 3938, 3940, 3941, 3942, 3946, 3947 and 3948 of 2009 Between: Koganti Atchutha Rao & another … Petitioners And Koganti Vineeth … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION Nos.3793, 3794, 3939, 3938, 3940, 3941, 3942, 3946, 3947 and 3948 of 2009 COMMON ORDER: - The short question that falls for consideration in these batch of revisions is whether against the dismissal of I.A.SRs filed under Order IX Rule 13 CPC by the District Consumer Forum-II, a revision under Article 227 of the Constitution can be entertained or not? Petitioner in all the revisions is the second opposite party before the District Consumer Forum-II, Vijayawada in C.C.Nos.252 to 255 of 2008, 18, 19, 79, 80, 86 and 93 of 2009 filed by the various respondents/complainants. In the complaint lodged by the 1st respondent/complainant before the District Consumer Forum-II, Vijayawada, an ex parte order was passed on 31.03.2007 for non- appearance of the petitioner and also opposite party No.1 and the said C.Cs. were posted on 03.04.2009 for filing the affidavit of the complainant. On complainant filing the affidavit on the said date, the Forum posted the C.Cs., for orders on 06.04.2009 and accordingly, allowed the C.Cs. on 06.04.2009. Thereby, the petitioner filed I.A. (SR).Nos.1493, 1497, 1461 and 1459, 1401, 1400, 1441, 1481, 1440, 1464 of 2009 in the said C.Cs. respectively, under Order IX Rule 13 CPC to set aside the ex parte order, dated 06.04.2009. The said I.A. (SRs)., were returned stating that the order passed on 06.04.2009 by the Forum is a final order on merits and the remedy of the petitioner is to file an appeal before the State Commission, Hyderabad. On re-presentation, the same were returned stating how the verdict reported in New India Assurance Co. Ltd., R.Srinivasan[1] is applicable to the facts and circumstances of the petition and of the final order at length. Questioning the same, the present revisions under Article 227 are filed. Sri C.Ramachandra Raju, learned counsel for the petitioner contends that under Section 15 of the Consumer Protection Act, 1986 (for brevity, “the Act”), an appeal lies against the final order passed by the District Forum. Since the procedure contemplated under the Civil Procedure Code is made applicable to the Forum while deciding the consumer dispute cases, the applications filed under Order IX Rule 13 CPC should have been entertained and the order returning the I.As so filed, is not appealable under Section 15 of the Act. Therefore, revision is always maintainable. He placed reliance on the judgment of the Supreme Court in New India Assurance Co. Ltd.’s case (1 supra), wherein it was held that the provisions under Order IX Rule 9 are not applicable to the proceedings under the Consumer Protection Act. Where the Court or judicial body or authority, which has a duty to decide a lis between the parties, inherently possesses the power to dismiss a case for default, so also it would have the inherent power and jurisdiction to restore the complaint. By placing reliance on the Judgment of the Supreme Court in Surya Dev Rai v. Ram Chander Rai[2], he contends that the High Court will have supervisory jurisdiction under Article 227 of the Constitution. Therefore, the Forum committed an error in rejecting the I.A.(SRs)., and hence, the same are liable to be set aside. In Surya Dev Rai’s case (2 supra) the Supreme Court held that the power of superintendence conferred on the High Court under Article 227 of the Constitution is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters, which are found in Certiorari jurisdiction. It was further held that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction, but when a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise of its supervisory jurisdiction under Article 227. By creating the consumer disputes reddressal forums under the Act, the hierarchy of the Forums have been created where against the orders passed by the District Consumer Forum, an appeal lies to the State Commission under Section 15 of the Act. Under Section 17 of the Act, the State Commission will also have jurisdiction to entertain the complaints where the value of goods or services or compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and the appeals against the order of the District Consumer Forum. Under Section 17(1)(b) of the Act, the State Commission will also have the supervisory and revisional jurisdictions to call for the records and pass appropriate orders in any consumer dispute, which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum exercised the jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested and has acted in exercise of its jurisdiction illegally or with material irregularity. Under Section 19 of the Act, an appeal is provided to the National Commission against any order passed by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 17 of the Act and also the revisional jurisdiction under Section 21(b) of the Act to call for the records and pass appropriate orders in any consumer dispute pending before or has been decided by any State Commission, similar to Section 17(1)(b) of the Act. In view of the elaborate procedure laid down for filing of the complaint and its disposal under the Act, which is a special statute enacted by parliament for better protection of the interest of consumers and a wholesale mechanism has been put in place for adjudication of consumer disputes, the remedy of revision available to a person aggrieved by an order of the District Forum can be treated as an effective alternative remedy. I n Jyotsana Arvind Kumar Shah and Others v. Bombay Hospital Trust[3] the Supreme Court held that the Act does not empower the State Commission or the District Forum to set aside an ex parte order passed by it and only an appeal lies against the said order. But without noticing the same, the Supreme Court in New India Assurance’s Case (1 supra) held that the Forums will have inherent power and jurisdiction to restore the complaint or set aside the ex parte orders passed by it. Noticing the contrary views expressed by the two co-ordinate Benches, the Supreme Court in Rajeev Hitendra Pathan v. Achyut Kashinath Karekar[4] noticing the effect of the amendment to the Act in 2003 whereby Section 22-A was introduced, has the effect of conferment of power of restoration on the National Commission, but not to the State Commission and that in view of the divergence of views expressed by co-ordinate Benches, referred the matter to a larger Bench to consider the question whether the State Commission/District Forum will have the power to recall the ex parte order. It is fairly well settled that the High Court can exercise judicial review in exercise of the Certiorari jurisdiction under Article 226 of the Constitution against final orders passed by the statutory Tribunal or quasi judicial authority, but not against interlocutory order which will have the effect of finally adjudicating the lis before them. {See L.Chandra Kumar v. Union of India (AIR 1997 SC 1125)} Admittedly, in the case on hand, if the petitioner is aggrieved by the order passed by the District Forum against the final order viz., the ex parte order passed in the C.Cs., on 06.04.2009, the remedy is to file an appeal before the State Commission or if he is so aggrieved by the order in not entertaining the I.As., filed under Order IX Rule 13 CPC for setting him ex parte, the remedy, if any, is only to file a revision under Section 17(1)(b) of the Act. A bare perusal of the same would demonstrably make it clear that a specific alternative remedy is provided by way of revision to the State Commission to the party aggrieved against any order passed by the District Forum either pending the consumer case or decided finally. When an effective alternative remedy is available under the special enactment, the High Court will not exercise its extra ordinary power under Article 227 of the Constitution, unless the remedy is exhausted. In view of the effective alternative remedy available to the petitioner, the present revisions under Article 227 of the Constitution cannot be entertained and the same are liable to be dismissed. Accordingly, the Civil Revision Petitions are dismissed granting liberty to the petitioner to avail the alternative remedy available under Section 17(1)(b) of the Act. There shall be no order as to costs. _____________________ A.GOPAL REDDY, J 12-08-2011 Note:- L.R.Copy to be marked {B/o} lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CIVIL REVISION PETITION Nos.3793, 3794, 3939, 3938, 3940, 3941, 3942, 3946, 3947 and 3948 of 2009 Dt:- 12-08-2011 lmv [1] 2000(3) SCC 242 [2] 2003(6) SCC 675 [3] 1999(4) SCC 325 [4] 2007(7) SCC 667