IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/04/2004
CORAM
THE HONOURABLE MR JUSTICE K.GNANAPRAKASAM
Civil Revision Petition No.1695 of 2003
and
VCMP.No.2883 of 2004, CMP.No.17744 of 2003
Manimalan ... Petitioner
-Vs-
K.Subrayan ... Respondent
Civil Revision Petition filed against the order dated 21.10.2003 made
in CMP.No.25 of 2003 in C.O.P.No.31 of 2003 on the file of the District
Consumer Disputes Redressal Forum, Namakkal.
!For petitioner : Mr.T.Dhanyakumar
^For Respondent : Mr.S.Devika
:O R D E R
This Civil Revision Petition is directed against the order dated
21.10.2003, made in CMP.No.25 of 2003 in C.O.P.No.31 of 2003, on the file of
the District Consumer Disputes Redressal Forum, Namakkal.
2. The respondent herein preferred a complaint before the District
Consumer Disputes Redressal Forum, Namakkal and during the pendency of the
complaint, the respondent filed an application to amend the name of the
revision petitioner herein and the same was allowed. Aggrieved by the same,
this revision has been filed.
3. Originally, the respondent herein filed the complaint against
Manimalan in his individual capacity and thereafter he filed the application
to change the petitioner as Managing Partner of the company and the said
application was allowed and the same is challenged in this civil revision
petition.
4. Heard the learned Advocate for the revision petitioner and the
respondent.
5. The learned Advocate for the revision petitioner would contend
that the Tribunal has no power to order amendment and therefore the order
passed is vitiated.
6. On the contrary, the learned Advocate for the respondent would
contend that though there is no express provision for the amendment of the
complaint, but there is no prohibition also in the Act for amending the
complaint.
7. Now let us consider whether the Tribunal has got power to allow
the amendment sought for.
8. The Consumer Protection Act, 1986 (Act 68 of 1986) was enacted to
provide for entire protection of the interest of the consumers and for that
purpose to make provision for their establishment of consumer counsel and
other authorities for the settlement of Consumer Disputes and matters
connected there with. As far as the procedure of dealing with the complaint
is concerned, Section 13 of the Act prescribed certain procedures. Sub
Clause(4) and (5) of Section 13 states that Civil Procedure Code, 1908 (5 of
908), would be applicable as far as certain matters are concerned which are,
13. Procedure on admission of complaint-
(1)……
(2)……
(3)……
(4)For purposes of this, the District Forum shall have the same powers
as are vested in Civil Court under the Code of Civil Procedure, 19 08 (5 of
1908), while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing attendance of any defendant or witness
and examining the witness on oath;
(ii) the discovery and production of any document or other material
object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or
test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed.
(5) Every proceedings before the District Forum shall be deemed to be
judicial proceedings within the meaning of Sections 193 and 228 of the Indian
Penal Code (45 of 1860), and the District Forum shall be deemed to be a Civil
Court for the purposes of Section 195, and Chapter XXVI of the Code of
Criminal procedure, 1973(2 of 1974).
9. As there is no specific provision in this Sub section also, it is
argued on behalf of the respondent that the District Forum has got a power to
order amendment. A similar question arise for consideration by the Honourable
Supreme Court in the case of M/s.Fair Air Engineers Pvt. Ltd., & another Vs.
N.K.Modi (1996 (II) CTC 664), and the Supreme Court in dealing with the matter
had observed that:
“Section 13 provides for the procedure after receipt of complaint and
for disposal thereof. The details thereof are not material except
sub-sections (4),(5) and (6) thereof which having cutting edge as material in
this behalf. Sub-Section (4) postulates that for the purposes of that
Section, the District Forum shall have the same powers as are vested in a
civil court under the Codes of Civil Procedure, 1908 , while trying a suit in
respect of the enumerated matters, namely, (i) summoning and enforcing the
attendance of any defendant or witness and examining the witness on oath, (ii)
discovery and production of any document or other material object producible
as evidence, (iii) the reception of evidence on affidavits, (iv) the
requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source, (v) issuing of any
commission for the examination of any witness, and (vi) any other matter which
may be prescribed under the Rules framed under the Act. District Forums have
got power to prescribe the procedure of collecting and discovering evidence.
Under Sub-section (5), every proceedings before the District Forum shall be
deemed to be a judicial proceedings within the meaning of Sections 193 and 228
of the Indian Penal Code and shall be deemed to be a civil court for the
purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973. Sub-section (6 ) provides that where the complainant is a consumer
referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2,
the provisions of Rule 8 of the Order 1 of the First Schedule to the Code of
Civil Procedure, 1908 shall apply subject to the modification that every
reference therein to a suit or decree shall be construed as a reference to a
complaint or the order of the District Forum thereon. The finding of the
District Forum is envisaged under Section 14 of the Act. If any person feels
aggrieved by the order of the District Forum there is a right of appeal
provided under Section 15 to the State Commission.”
After having observed so, it was further held:
“Thus, it would be seen that the District Forums, State Commission and
National Commission have all the trappings of a civil court and judicial
authority. The proceedings before them are legal proceedings. Similar
controversy was considered by this Court in The Bharat Bank Ltd., Delhi v.
The Employees of the Bharat Bank, 1950 (1) SCR 459 and in Associated Cement
Companies Ltd., v. P.N.Sharma & Another 1965 (2 ) SCR 366. In Sarojini
Ramaswami v. Union of India, JT 1992 (4) SC 1; 1992(4)SCC 501, K.Ramaswamy, J
had dealt with this aspect of the matter and held thus:
“The parliament while considering the motion for removal of the judge
for deciding whether to adopt the motion or not takes into consideration the
report as well as the dissenting opinion, if any, of the third member of the
Inquiry Committee in case the majority opinion is that the Judge is guilty,
along with the entire evidence received by in Inquiry Committee on which the
finding of guilt of the Inquiry Committee is based. No doubt, the Parliament
does not substitute its finding for that of the Inquiry Committee or supersede
it in case it decides not to adopt the motion by the requisite majority so
that the motion for removal of the Judge fails and the proceedings terminate
but in doing so it does take the decision to not adopt the motion because it
declines to accept and act on the finding of guilty recorded in the report of
the Committee after debating the issue on the basis of the material before
it.”
10. The Supreme Court had also taken into consideration the various
other cases namely, Canara Bank v. Nuclear Power Corporation of India Ltd., &
Ors., J.T.1995, (3) SC 42, and Lucknow Development Authority v. M.K.Gupta, JT
1993(6) SC 307 = 1994 (1) SCC 243 and ultimately held that the power of the
District Forum is wide enough to use even to application for filing an
amendment and as a matter of fact by allowing such an amendment, no prejudice
has been complied of and in that view of the matter also, I do not find any
impediment in entertaining an application for the amendment, even though there
is no specific provision for amendment. As it has been rightly submitted by
the learned Advocate for the respondent, though there is no specific
provision, there is also no bar in allowing this petition and that therefore,
I do not find any error in the said order passed by the District Forum.
11. That apart, the learned Advocate for the respondent contended as
against the order passed by the District Forum, the petitioner has got a
remedy to prefer appeal before the State Forum as provided under Section 17
which deals with the jurisdiction of the said Commission.
17. Jurisdiction of the State Commission:- (1) Subject to the other
provisions of this Act, the State Commission shall have jurisdiction,–
(a) to entertain –
(i)……..
(ii) appeals against the orders of any District Forum within the
State.
The provision is so clear if the petitioner is aggrieved, he should
have filed an appeal before the State Forum and petition under Section 227 of
the Constitution is not maintainable. When an alternative and efficacious
remedy is available, the person aggrieved has to choose the alternative remedy
available without referring to the Article 22 7 of the Constitution of India.
This is the view taken by this Court in the case of D. Roja and 7 others v.
Commissioner, Corporation of Madras, Madras-3 and others (1998(I) CTC 338),
wherein it was held;
” It is settled law that the powers under Article 227 of the
Constitution of India should not be invoked if there is an effective
alternative remedy. When the National Forum is given such power, it is better
the petitioners invoked the statutory remedy.”
12. Here, the State Commission has got ample power to entertain an
appeal as against the order passed by the District Forum and therefore, the
petitioner should have resorted to the said remedy and without doing so, has
filed this petition which according to me is not sustainable.
13. In the result, the Civil Revision Petition is dismissed.
Consequently, connected VCMP and CMPs are closed. No costs.
ksr
Index:Yes
Internet:yes
To
1. The District Consumers Disputes Redressal
Forum, Namakkal.