Jammu & Kashmir High Court
Kewal Krishan Kohli Age 77 Years S/O Late … vs J& K State Consumer Dispute Redressal … on 26 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 21.08.2025
Pronounced on:26.08.2025
WP(C) No.3186/2023
Kewal Krishan Kohli age 77 years S/o Late Sh. Shanti Saroop Kohli
R/o Proper Banihal, Tehsil Banihal District Ramban.
...Petitioners(s)
Through:- Mr. R.K.S.Thakur, Advocate
Versus
1. J& K State Consumer Dispute Redressal Commission, Jammu
2. Bajaj Allianz General Insurance Company Ltd., GE Plaza
Airport Road, Yarawad Pune-411006
3. General Manager, Bajaj Allianz General Insurance Company
Ltd., Canal Road, Jammu
4. The Jammu and Kashmir Bank Ltd. through its Branch Office,
Banihal.
...Respondent(s)
Through:- Mr. Sunny Mahajan, Advocate for R-2
and 3
Mr. Raman Sharma, Advocate for R-4
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjeev Kumar “J”
1. Instant petition under Article 226 of the Constitution of India is
instituted by Sh. Kewal Krishan Kohli to assail an order dated
15th June, 2023 passed by the Jammu & Kashmir State
Consumer Disputes Redressal Commission, Jammu [“the
Commission”] in MA No.955 of 2018 titled Kewal Krishan v.
Bajaj Allianz and others, whereby the Commission has
WP(C) No.3186/2023 2
dismissed the miscellaneous application filed by the petitioner
seeking restoration of appeal titled Kewal Krishan v. Bajaj
Allianz and others, dismissed in default on 28th November, 2018,
on the ground that the Commission constituted under the Jammu
and Kashmir Consumer Protection Act, 1987 [“the Act of 1987”]
did not contain any provision for reviewing, setting aside of an
ex-parte order or restoration of appeal dismissed for non-
prosecution.
2. Before we advert to the grounds of challenge urged by Mr.
R.K.S.Thakur, learned counsel appearing for the petitioner, to
throw challenge to the impugned order passed by the
Commission, a brief look at the factual antecedents leading to
the filing of this petition would be desirable.
3. The petitioner, who had allegedly suffered damage in his shop,
which along with other adjoining shops got gutted in fire due to
electrical short-circuit on the intervening night of 11th/12th of
June, 2004, approached the respondent-Insurance Company
claiming an amount of Rs.3,61,900/- in terms of the Insurance
Policy, he had obtained in respect of the shop and the goods
stored therein. When the claim was not settled by the
respondent-Insurance Company, the petitioner filed a complaint
before the Divisional Consumer Forum, Jammu under the Act of
1987. The complaint was dismissed by the Divisional Consumer
WP(C) No.3186/2023 3
Forum, Jammu on merits. The judgment passed by the
Divisional Consumer Forum was assailed by the petitioner by
way of an appeal before the Commission. Since the appeal was
belated, as such, separate application was filed by the petitioner
for condonation of delay. The Commission vide its order dated
24th February, 2010, dismissed the application for condonation
of delay and also held the appeal filed by the petitioner meritless.
4. The petitioner challenged the judgment of the Commission dated
24th February, 2010 before this Court in OWP No.590/2010,
which was allowed by a Division Bench of this Court vide
judgment dated 29th May, 2018. The delay in filing the appeal
was condoned and the matter was remanded to the Commission
for deciding the appeal of the petitioner on merits.
5. On remand, the appeal was taken up by the Commission and
when the Commission found that the parties had not been
appearing in the matter and had lost interest, it passed an order
dated 28.11.2018 consigning the file to record. Immediately, the
petitioner filed an application for restoration of the appeal on
26th December, 2018, which was taken up by the Commission
along with similar other applications. The Commission
dismissed the application for restoration in terms of the order
impugned not on merits but on pure question of law that the
Commission had no competence to restore the appeal once
WP(C) No.3186/2023 4
dismissed in default or consigned to record. It is in this
backdrop, the petitioner has approached this Court invoking
extraordinary writ jurisdiction vested in this Court under Article
226 of the Constitution of India to quash and set aside order
dated 15th June, 2023.
6. Having heard learned counsel for the parties and perused the
material on record, the question that squarely falls for
consideration in this petition can be set out in the following
manner:
“Whether the Commission, constituted under the Act of
1987, has the power and competence to restore an appeal
dismissed by it for non-prosecution?” Allied with it is
another question that is, “what is the difference between a
matter dismissed in default and a matter consigned to
record?”
7. The Commission is undoubtedly created and constituted under
the Act of 1987 and, therefore, its functioning, jurisdiction,
power or competence is governed by the provisions of the Act of
1987 and the Rules framed thereunder. Unlike Civil Courts,
which possess inherent powers to act ex debito justitiae, the
Commission exercises the power and jurisdiction conferred upon
it by the Statute under which it is created.
WP(C) No.3186/2023 5
8. Section 13 of the Act of 1987 makes a provision for filing appeal
by the aggrieved person against an order made by the District
Forum before the Commission and prescribes a limitation of
thirty days to file such appeal in such form and manner as may
be prescribed. The Government has, in the exercise of power
conferred by Section 24 of the Act of 1987, framed Rules known
as The Jammu and Kashmir Consumer Protection Rules, 1987
[“the Rules of 1987”]. Rule 10 of the Rules of 1987 lays down
procedure for hearing the appeal by the Commission, for facility
of reference, relevant portion of which is set out below:
“10. Procedure for hearing the appeal.
…………………………..
…………………………..
………………………….
(vi) On the date of hearing or on any other day to
which hearing may be adjourned, it shall be
obligatory for the parties or their agent to appear
before the State Commission. If appellant or his
agent fails to appear on such date, the State
Commission may, on its discretion, either dismiss
the appeal or decide ex-parte on merits. If the
respondent or his agent fails to appear on such date,
the State Commission shall proceed ex-parte and
shall decide the appeal on merits of the case.”
9. From a reading of Clause (vi) of Rule 10, it is evident that if on a
date fixed by the Commission in the appeal for hearing, the
appellant or his agent fails to appear, the Commission has a
discretion either to dismiss the appeal or decide it ex-parte on
merits. The Commission is also conferred the power to proceed
ex-parte and decide the appeal on merits, if the respondent or his
agent fails to appear on the date fixed by the Commission for
WP(C) No.3186/2023 6
hearing of the appeal. There is, however, no provision either in
the Act of 1987 or the Rules framed thereunder conferring upon
the Commission the power to re-admit/restore the appeal
dismissed in default of appearance of the appellant or his agent.
There is also no power conceded to the Commission to set aside
either ex-parte proceedings or the decision taken ex-parte in the
appeal.
10. As is clarified herein above, the Commission being a creature of
the Statute i.e. the Act of 1987, exercises only such powers, as
are specifically conferred upon it by the Act, and does not enjoy
the inherent powers which are enjoyed by the Courts of law to
act ex debito justitiae. In the view we have taken, we are
supported by a judgment of the Supreme Court in Rajeev
Hintendra Pathak and others v. Achyut Kashinath Karekar
and another, 2011 (9) SCC 541. The question that was posed
for consideration before the Supreme Court in the aforesaid case
was, whether District Consumer Forums or State Commissions
have the power to set aside their own ex-parte order or, in other
words, have the power to recall or review their own orders.
After considering the case law on the subject including the
judgments rendered by it in the cases of Jyotsana Arvind
Kumar Shah and others v. Bombay Hospital Trust, 1999(4)
SCC 325 and New India Assurance Company Ltd. v. R.
WP(C) No.3186/2023 7
Srinivasan, 2000 (3) SCC 242, in paragraph Nos. 35 and 36 of
the judgment, the Supreme Court concluded thus:-
“35. We have carefully scrutinized the provisions of
the Consumer Protection Act, 1986. We have also
carefully analyzed the submission and the cases
cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act,
it is abundantly clear that the Tribunals are creatures
of the Statute and derive their power from the
express provisions of the Statute. The District
Forums and the State Commissions have not been
given any power to set aside ex parte orders and
power of review and the powers which have not
been expressly given by the Statute cannot be
exercised.”
11. In view of the clear dictum of law laid down in the case of
Rajeev Hitendra Pathak (supra), it is no more open to argue
that the Commission enjoys inherit powers other than those
conferred upon it expressly by the Statute. In the aforesaid
judgment, the contrary view taken by the Supreme Court in the
case of R.Srinivasan (supra) was not approved.
12. This brings us to the argument of Mr. R.K.S.Thakur, learned
counsel for the petitioners, that in the instant case the
Commission, in terms of its order dated 28 th November, 2018,
had not dismissed the appeal in default but had simply consigned
it to records and, therefore, what was sought for by the petitioner
in his application made before the Commission was not the
restoration of the appeal rather it was only for revival of a
WP(C) No.3186/2023 8
pending appeal simply consigned to records. To appreciate this
argument, we deem it necessary to set out order dated 28th
November, 2018 herein below:
“28.11.2018.
None is present for the parties.
File be consigned to records.”
13. The expression “consigned to record” needs to be understood
before we embark upon analyzing the argument of Mr. Thakur.
“Consigned to record”, as is understood in common parlance
would generally mean that a file or case is being sent to the
designated record room for storage and preservation, often after
a legal case has been concluded. Such consignment of a pending
case to record may also be resorted to when because of an appeal
or revision pending before the higher Court/Forum, it is not
possible to conduct proceedings in the matter by the trial Court.
Instead of keeping the matter pending and listing it time and
again, it is thought desirable to consign such case to record to be
revived only after the decision of a pending appeal or revision
before the higher Court/Forum.
14. The expression “consign to record” is neither traceable to the
Code of Civil Procedure nor is the expression used anywhere in
the Act of 1987. The expression “consign to record” in reference
to a file is like closing the file for statistical purposes or for the
WP(C) No.3186/2023 9
purposes we have explained above. The proceedings in the file,
therefore, do not terminate when the file is consigned to record.
15. In the instant case, the Commission in terms of its order dated
28th November, 2018 noted that the parties had failed to appear
and thus, consigned the file to record. The expression used by
the Commission was, essentially, in lieu of dismissing the file
for non-prosecution and then consign it to record room. It is not
the phraseology used by the Commission that really matters but
the sum and substance of the order that is material. Whatever be
the terminology used, it is for the Court to ascertain the true
import having regard to the circumstances under which a
particular order has been made. Whether the Court intended to
finally terminate the proceedings or it did not intend to do so is a
question to be seen in the context in which the order has been
made.
16. Viewed, thus, we are of the considered opinion that the order
dated 28th November, 2018 was, essentially, an order dismissing
the appeal for the failure of the appellant to appear on the date
fixed for hearing by the Commission. Such dismissal of an
appeal in default of appearance of the appellant is traceable to
the provisions of Rule 10(vi) of the Rules of 1987, which we
have reproduced herein above.
WP(C) No.3186/2023 10
17. In the absence of any procedure for consigning the file to record
and without there being any provision for revival of such matter,
it is difficult for us to accept the argument of Mr. R.K.S.Thakur,
Advocate that the Commission has the power to consign pending
cases to record in lieu of and in place of dismissing them under
Clause (vi) of Rule 10 of the Rules of 1987.
18. A Division Bench judgment of this Court in the case of Tabeen
Mineral Water Private Limited v. National Insurance Company
Limited, FAO(D) No.02/2023 decided on 01.09.2023 is
distinguishable on its facts. In the aforesaid case what was
dismissed by the Commission was a complaint and not the
appeal and, therefore, the provisions of Rule 10 of the Rules of
1987 were not applicable. Indisputably, under the Act of 1987,
there is no power given to the Commission/Divisional
Forum to dismiss a complaint in default whereas in the case of
an appeal, such power is specifically conferred by Clause (vi) of
Rule 10 of the Rules of 1987.
19. In the case of Akona Engineering Private Ltd. v. Pal
Construction and another, OWP No.680/2013 decided on 15 th
December, 2022, a Division Bench of this Court has
categorically held that the Commission under the Act of 1987 is
devoid of any power to restore the complaint dismissed for non-
prosecution. This judgment which was rendered on 15th
WP(C) No.3186/2023 11
November, 2022 appears to have escaped the attention of
Division Bench, which decided the case of Tabeen Mineral
Water Private Limited (supra) on 1st September, 2023.
20. For the foregoing reasons and the conclusion arrived at herein
above on the questions of law framed, we are of the considered
opinion that the impugned order passed by the Commission is in
tune with the settled legal position and does not call for any
interference.
21. The writ petition is, therefore, found to be without any merit and
the same is, accordingly, dismissed.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
26.08.2025
Vinod,PS Whether the order is speaking : Yes
Whether the order is reportable: Yes
[ad_1]
Source link