Kerala High Court
Anil Kumar Sreedharan vs Jayesh Valappilakkandy on 12 June, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 5859 OF 2024
PETITIONER:
ANIL KUMAR SREEDHARAN
AGED 54 YEARS
S/O. SREEDHARAN, MANAGING DIRECTOR, BROWNARCH BUILDERS,
RESIDING AT KOTTOOR CHARUVILA VEEDU, PERUMPUZHA PO,
KUNDARA, KOLLAM., PIN - 691501.
BY ADVS.
C.RAJENDRAN
B.K.GOPALAKRISHNAN
R.S.SREEVIDYA
MANU M.
RESPONDENTS:
1 JAYESH VALAPPILAKKANDY
AGED 40 YEARS
MUMDAYEL, PARAPRAM PO, THALASSERY, KANNUR, REPRESENTED
BY HIS POWER OF ATTORNEY HOLDER, SATHEBA, W/O. JAYESH
VALAPPILAKKANDY, AGED 47 YEARS, MUMDAYEL, PARAPRAM PO,
THALASSERY, KANNUR, PIN - 670741.
2 THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
KOLLAM, NH 66, CIVIL STATION, KOLLAM, PIN - 691013.
BY ADVS.
MOHAN LAL B
P.S.PREETHA(K/883/1998)
ASWIN V. NAIR(K/1019/2017)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 5859 OF 2024
2
T.R. RAVI, J.
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W.P.(C) No.5859 of 2024
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Dated this the 12th day of June, 2024
JUDGMENT
The writ petition has been filed challenging
Exts.P3(a), P4 and P7 orders of the 2 nd respondent and for
a direction to the 2nd respondent to conduct a denovo trial
of Ext.P1 petition permitting the petitioner to participate
in the proceedings. The case arises from a complaint filed
before the Consumer Disputes Redressal Commission,
Kollam. From Ext.P3, it can be seen that the complaint
was filed on 03.11.2022 and it was posted on 28.11.2022
for appearance of the parties. On 28.11.2022 the
complainant and the opposite party were present and an
expert report was also filed. The opposite party entered
appearance by filing vakalath through a counsel. On
28.11.2022, the opposite party was directed to file their
version within time and also file objection to the expert
WP(C) NO. 5859 OF 2024
report and the case was posted on 07.01.2023. On
07.01.2023 the complainant as well as the opposite party
were represented through counsel and the Commission
adjourned the case for filing of version and objection to
the expert report to 15.02.2023. On 15.02.2023, since
there was no sitting, the case was adjourned to
29.03.2023. On 29.03.2023, the complainant was
represented and the opposite party filed their version. It is
seen from the proceedings that the complainant objected
on the ground that the version has been filed beyond the
statutory period. On that day, the Commission set the
opposite party ex parte and posted the case for
complainant's evidence to 31.05.2023. The grievance of
the petitioner is that the proceedings whereby the
petitioner was set ex parte is not in consonance with
Section 38(3)(b) of the Consumer Protection Act, 2019.
The provision reads thus:
"(b) if the opposite party, on receipt of a
copy of the complaint, referred to him under
WP(C) NO. 5859 OF 2024
clause (a) denies or disputes the allegations
contained in the complaint, or omits or fails
to take any action to represent his case
within the time given by the District
Commission, it shall proceed to settle the
consumer dispute--
(i) on the basis of evidence brought to
its notice by the complainant and the
opposite party, if the opposite party denies
or disputes the allegations contained in the
complaint, or
(ii) ex parte on the basis of evidence brought
to its notice by the complainant, where the
opposite party omits or fails to take any
action to represent his case within the time
given by the Commission."
It is thus evident that as per the Statute a person
can be set ex parte if he fails to take action to be
represented within the time granted by the Commission.
This is a case where the opposite party was represented
as early as on 28.11.2022 and on the day on which he was
set ex parte, he had also filed a version to which an
objection was raised. Even if the Commission was of the
WP(C) NO. 5859 OF 2024
opinion that the objection cannot be accepted on file, that
could not justify setting the opposite party ex parte since
there is no such authority under Section 38(3)(b) which
stipulates the situations in which the party can be set
ex parte. The case thereafter, proceeded without the
opposite party/petitioner. Since the entire procedure is
bad in law and not in consonance with the specific
provision contained in Section 38(3)(b), this Court is
constrained to set aside the proceedings. It is true that
the version was filed beyond the time limit. However, it is
also seen that the version was filed on the next sitting day
of the Commission.
In the above circumstances, the writ petition stands
allowed. The orders Exts.P3(a), P4 and P7 are set aside.
The 2nd respondent shall proceed from the stage at which
the case was on 29.03.2024 retaining the opposite party
in the party array and without setting him ex parte. The
Commission shall endeavour to complete the proceedings
WP(C) NO. 5859 OF 2024
thereafter within three months of the date of appearance.
The parties are directed to appear before the Commission
on 20.06.2024.
Sd/-
T.R.RAVI
JUDGE
mpm
WP(C) NO. 5859 OF 2024
APPENDIX OF WP(C) 5859/2024
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE COMPLAINT IN CC NO.
342/2022 ON THE FILE OF THE DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
KOLLAM.
Exhibit P2 A TRUE PHOTO COPY OF THE OBJECTION FILED
BY THE PETITIONER IN THE CC NO.342/2022
ON THE FILE OF THE DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM, KOLLAM.
Exhibit P3 A TRUE COPY OF THE ENTIRE PROCEEDINGS OF
THE CC NO.342/2022 ON THE FILE OF THE
DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM, KOLLAM.
Exhibit P3(a) A TRUE COPY OF THE EXPARTE ORDER IN CC
NO.342/2022 ON THE FILE OF THE DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED 29/03/2023.
Exhibit P4 A TRUE PHOTOCOPY OF THE ORDER DATED
10/05/2023 IN IA NO.116/2023 IN CC
NO.342/2022 OF THE DISTRICT CONSUMER
DISPUTES REDRESSAL COMMISSION, KOLLAM.
Exhibit P5 A TRUE PHOTO COPY OF THE CHIEF
EXAMINATION OF THE 1ST RESPONDENT DATED
10/05/2023.
Exhibit P6 A TRUE PHOTO COPY OF THE CHIEF
EXAMINATION OF THE EXPERT COMMISSIONER
WHO IS EXAMINED AS CW1 DATED 10/05/2023.
Exhibit P7 A TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT IN CC NO.342/2022 OF THE
DISTRICT CONSUMER DISPUTES REDRESSAL
COMMISSION, KOLLAM DATED 25/08/2023.
Exhibit P8 A TRUE PHOTOCOPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WP (C) NO. 35252/2023
DATED 23/01/2024.
