The Supreme Court has in Rajeev Hitendra Pathak & Ors. Vs Achyut Kashinath Karekar & Ors, (2011) 9 SCC 541 held that the power of review/recall of its order has been only given to the National Commission under Section 22A of the Consumer Protection Act, 1986 (Act). The above judgement has been a bone of contention in many cases pending before the consumer forums.
In Rajeev Hitendra, the complaint was dismissed for want of prosecution and therefore the same amounts to a final order. District Forums as well as the State Commissions have wrongly interpreted the judgement to include within its ambit ex parte interim orders. This interpretation has caused injustice to parties who have been proceeded ex -parte at the District or the State level. The District Forum or State Commissions have been unwilling to set aside the ex parte order citing lack of powers under the Act. Such an interpretation cannot be accepted for the following reason:
1. Regulation 17 of the Consumer protection Regulations, 2005
Regulation 17 : "Any ex-parte interim order issued by the Consumer Forum shall stand vacated after 45 days if in the meanwhile the objections to the interim order are not heard and disposed of."
Regulation 17 implies that a party can bring objections to an ex parte interim order in the Consumer forum which passed the said order.
If Rajeev Hitendra was to include ex parte interim orders, the same would be contrary to Regulation 17.
2. Judgement in Grinlays Bank Limited Vs Central Government Industrial Tribunal, 1980 (Supp) SCC 420
In Grinlays Bank Limited, the Supreme Court distinguished between procedural review and review on merits and held that it is only when the review is on merits that the statue should specifically provide for it. Power of procedural review is inherent or implied in a Court or Tribunal. The Court has stated that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
In order to harmoniously construct the judgement of Rajeev Hitendra and Grinlays Bank the correct interpretation of Rajeev Hitendra would be that it does not apply to procedural review and in such cases the District Forums and State Commissions cannot refuse to exercise their review powers by claiming that the Act does not provide for the same.
The National Consumer Dispute Redressal Forum has tried to clarify the position. In M/S Competent Dyestuff & Allied Products Pvt. Ltd. Vs M/S ICICI Lombard General Insurance Co. Ltd., Revision Petition No. 4052 of 2014, the Commission held that if a consumer forum passes an interim order against the party to the complaint in the absence of such a party and later on the party against whom the interim order is made appears and brings such facts to the knowledge of the Forum which would persuade the forum to hold that the interim order was not justified, it would be open to the concerned forum to vacate or modify the order and that would not amount to review of the interim order passed by it.
However, much to the agony of the litigants, some District Consumer Forums as well as State Commissions are continuing to misinterpret the ratio of the judgment in Rajeev Hitendra which has led to contrary decisions. We need clarification from the Apex Court in order to bring uniformity in the law and prevent arbitrariness.
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