Ex parte order set aside application.


Facts:

1. Petitioner got an exparte decree in consumer forum after the respondent and his lawyer appeared for three dates and stopped appearing after that without filing any written statement. Even cost was slapped by consumer forum for delay in WS which was never paid.

2. Now they have filed application to set aside ex parte order within 30 days of decree.

3. The plea taken is advocate's fault. That advocate misguided and assured the respondent that he has filed WS and case is proceeding fine.

4. They have also filed complaint to Bar council against lawyer and attached it alongwith ex parte order.

Questions:

Please guide what should be the strategy/grounds to get their application dismissed?

Please provide citation on similar cases. Is this ground enough to get it set aside? Isn't responsibility on party also to follow the case?

How can I get detailed report from Bar Council about the complaint to get the version/defense of lawyer also on record? Because lawyer may have stopped appearing because of non-payment of fees or as per instructions from other party? In which case fault will be on respondent's.

 
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When vakalat has been filed by counsel and doe not appear in court it is bound to issue notice to party concerned before setting defendant exparte.  This is a settled law.  One more settled law is that by engaging counsel party is not relieved of his duties and obligations.  If he fails to have contact with counsel he commits default, negligence. 


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Can you please provide some precedents in similar matters before HC and SC?

 
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District Consumer Forum and State Commission can not set aside their orders and also have no jurisdiction to review their orders.

Recently S.C in civil Appeal no 936/2013 arising out of SLP{C}no 19556/2012 decided on 5 2 2013 titled as Lucknow  Development  Authority vs Shyam Kapoor held 

  Consumer Protection Act Ss 22&22A Ex-Parte orders&Review District Forums and State Commissions have no power to set aside ex parte orders and to review orders .Such orders are assailable only before  the National Commission.{2013{2 } civil court cases 209{ S .C} Also see  2011 {3} Apex court Judgments 236 {S.C}

 so cite  the above judgments and get dismissed the application.


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Thanks Mr Bhartesh,

I have gone through this judgement and also the judgement refered as follows-

Rajeev Hitendra Pathak & Ors. v. Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, wherein this Court clearly concluded, that neither the District Forum nor the State Commission had power to review its “ex parte” orders. 

As per me, the judgement means that district and state forum does not have power to set aside ex parte order passed by itself.

So, there are two cases at state commission level:

1. To set aside ex parte order passed by state commission.

2. To set aside ex parte order of district commission.

For Case 1, the judgement will be useful, but not in second case, is what I gathered from the judgement.

Because the ACT, has expressly given powers to state commission to review decisions of district commission.

Please let me know if my interpretation is wrong.

 
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