(Querist) 22 March 2010
This query is : Resolved
sir pls advise me to set aside the ex-parte order pronounced by District consumer Forum weather BY application under order9 rule 13 C.P.C. or appeal before State commission
Parveen Kr. Aggarwal
(Expert) 22 March 2010
A party which has been proceeded against ex-parte may either file an application seeking setting aside of order whereby it was proceeded against ex-parte showing sufficient reasons for previous non-appearance. In the alternative, an appeal may be filed before the State Commission against the final order of the District Forum.
In AIR 2000 SC 941, it has been held that every Court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the Court or the judicial or quasi judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the Court or, for that matter, of judicial or quasi judicial body. In the 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.
It has also been observed therein quoting from Full Bench Judgment of (1883) ILR 5 All 183,that the Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought in prohibited by the rules of procedure applicable to the Courts of Justice in India.