IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 561 of 1999 BETWEEN: Sri Surya Hatcheries Rep. by its Partner R. Venkata Subbaiah S/o Venkataswamy, R/o Tangutur, Tangutur Mandal, Prakasham District. ... PETITIONER AND 1 M/s Sree Udyog, Proprietor, B.N.Yadav, Navajeevan Industrial Estate, Oshiwara,Jogeswari (West), Bombay-400 012 2 M/s Prawan Grow Services, Proprietor Y.N.Rao, Room No.10, Block-C, Proprietor, Y.N. Rao, 2nd Floor, Udyog Bhavan, Sripuram, Visakhapatnam-530 003 3 The A.P.State Consumer Redressal Commission Rep. by its Registrar, Hyderabad A.P. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate Writ or order or direction under Article 226 of the Constitution of India, particularly one in the nature of Writ of MANDMUS, declaring the orders of the A.P. State Consumer Dispute Redressal Commission, Hyderabad, (third respondent herein) passed in F.A.I.A.No.1025/98 in F.A.No.732/1997 on 8-10-1998 as unfair, unjust and illegal after calling for the records and to pass such other orders that this Honourable Court may deem it fit and proper. Counsel for the Petitioner: MR.PRATTIPATI VENKATESWARLU Counsel for the Respondents: GP FOR CIVIL SUPPLIES The Court made the following: ORDER: (per Hon’ble Sri Justice V. Eswaraiah) Petitioner questions the order of the Andhra Pradesh Consumer Disputes Redressal Commission – third respondent dated 08.10.1998 passed in F.A.I.A.No.1025 of 1998 in F.A.No.732 of 1997 in dismissing the said application filed to set aside the order of the third respondent dated 29.06.1998 in dismissing the appeal in F.A.No.732 of 1997 for default on the ground that the third respondent has no power to set aside the order of dismissal for default as there is no provision in the Consumer Protection Act, 1986 (for short ‘the Act’). 2. Petitioner is the complainant, who filed O.P.No.141 of 1996 against respondents 1 and 2 claiming certain damages for the alleged deficiency of service and the said OP was allowed to the extent of payment of compensation of Rs.20,000/- along with interest. Aggrieved by the said order in disallowing the part of the claim, the petitioner preferred the aforesaid appeal and the same was dismissed not only for default but also on the ground that the second opposite party – second respondent herein was not effected service. 3. We have perused the provisions of the Act and we are also of the opinion that there is no provision under the Act to set aide the default order made by the State Commission and such provision is conferred only on the National Commission under Section 22-A of the Act. Whenever an appeal has been dismissed for default the only course open to the aggrieved party is to file either an appeal or revision, as the case may be and also there is no bar to approach this Court under Article 226 of the Constitution of India. 4. We are not inclined to express any opinion with regard to the merits of the case but as the State Commission has rightly dismissed the said application on the ground that there is no provision in the Act conferring such power to State Commission and as application of Code of Civil Procedure is to the limited extent, it cannot be said that the aggrieved party has no remedy. We, however, feel that since both the respondents are served in the writ petition and there is no opposition to set aside the impugned order, the impugned order is set aside and the appeal in F.A.No.732 of 1997 stands restored. We remit the matter to the State Commission to effect fresh service of notice on the respondents and thereafter hear and determine the appeal in accordance with law. The writ petition is accordingly allowed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J February 11, 2009 DSK