QAMAR JAHAN AN DANOTHERversusNISAR AHMAD TYAGI AND OTHERS

                     [2015] 3 S.C.R. 793



                QAMARJAHANANDANOTHER                             A
                                v.
              NISARAHMAD TYAGI AND OTHERS·
                (Civil Appeal Nos. 76-77 of2011)
                        MARCH 24, 2015.                          B
         [KURIAN JOSEPH AND R.K. AGRAWAL, JJ.]
      Consumer Protection Act, 1986- s. 13(4)(iiQ- Complaint
before National Commission - The Commission closed the
right to file rejoinder and also right to file affidavit in chief C
examination on the ground of delay in filing rejoinder and
dismissed the complaint for want of evidence - Held: The
question of affidavit in chief examination arises only after
the pleadings are complete - Due to non-filing of the rejoinder,
the National Commission, at best could have forfeited the D
permission to file rejoinder and should have granted
opportunity to lead the evidence holding that in absence of
the rejoinder, the pleadings would be deemed to be complete
- Therefore, though the complainants are not entitled to file E
rejoinder, THEY are entitled to lead evidence and hence can
file the affidavit in terms of s.13(4)(iii)-Appeals allowed.

    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 76-
77 of 2011.
                                                                 F
    From the Judgment and Order dated 26.07.2010 in 0. P.
No. 102 of 2000 and order dated 29.10.2010 of the National
Consumer Disputes Redressal Commission, New Delhi in
Miscellaneous Application No. 859 of2010 in Original Petition
No. 102 of2000.                                               G

     Qamar Jahan (Appellant-In-Person).

   Vinay Garg, Tanmay Agarwal, Uday Singh, for the
Respondents.                                                     H
                      793
794         SUPREME COURT REPORTS                 (2015) 3 S.C.R.



A         The following Judgment of the Court was delivered

         1. The appellants filed a complaint (Original Petition No.
      102 of 2000) before the National Consumer Disputes
      Redressal Commission, New Delhi (for short 'National
B     Commission').

        2. The issue pertains to the alleged medical negligence
  in treating the husband of the first appellant. It is seen, that
  respondent nos. 1 and 2 in the complaint had filed their
c response to the complaint, and the appellants have also filed
  rejoinder thereto. As far as respondent nos. 3 and 4 are
  concerned, it appears, notice of the complaint was served on
  them only towards the end of the year 2009. They have filed
  their reply on 14.1.2010. Thereafter, several opportunities were
D given to the appellants to file rejoinder to the reply filed by
  opposite party nos. 3 and 4 in the complaint. Finally, on
  26.07.2010, the National Commission, vide its impugned
  order, dismissed the complaint for want of evidence. The
  operative part of the impugned order reads as under:
E
        "Complaint was filed in the year 2000 and despite
        repeated orders passed on the said dates the
        complainants have failed to file rejoinder to the written
        version of Ops 3 and 4 and their affidavits of evidence.
F       It is a case of medical negligence, Sri Pattjoshi states
        that further time may be allowed to the complainants
        to do the needful. However, we are not inclined to
        grant further time to the complainants. Right to file
        rejoinder and affidavits of evidence is closed. Since
G
        there is no evidence in support of the complaint the
        complaint is dismissed for want of evidence. There
        is hardly any occasion to allow Sri Pattjoshi to argue
        the complaint. No order as to costs."
H
         QAMAR JAHAN V. NISARAHMAD TYAGI                             795


    3. Thereafter, the appellants filed miscellaneous A
application no. 859 of 2010 requesting the National
Commission to recall the aforesaid order dated 26.7.2010.
That application was also dismissed vide order dated
29.10.2010. The said order reads as under:
                                                            B
    "Complainants have filed this application for recalling
    the order dated 26. 7 .2010 whereby the complaint was
    dismissed which is being contested by opposite
    parties no. 3 and 4. We have heard the parties counsel
    and have been taken through the order dated             C
    26.7 .2010. This order would showthatfor the reason
    disclose in details in the order itself the evidence of
    the complainant was closed and the complaint was,
    therefore, dismissed for want of evidence. For the
     reasons recorded in the order itself, we are not       D
     inclined to recall the said- order and restore the
                                ~

     complaint to its number.
              Application is accordingly dismissed."
     4. Hence, these appeals have been filed before this Court E
at the instance of the appellants under Section 23 of the
Consumer Protection Act, 1986, assailing the impugned orders
passed by the National Commission dated 26.7.2010 and
29.10.2010.
                                                               F
     5. Respondent nos. 1 and 2 are not represented before
this Court. However, respondent nos. 3 and 4 are duly
represented.

    6. We have heard Srimati Qamar Jahan, appellant no.1              G
appearing in person, and Mr. Vinay Garg, learned counsel
representing respondent nos. 3 and 4.

     7. It can be seen from the order dated 26.7 .2010 that the
right to file rejoinder was closed, and right to file affidavit in    H
 796          SUPREME COURT REPORTS                    [2015] 3 S.C.R.



 A  chief examination was also closed. The question of affidavit
    in chief examination arises only after the pleadings are
"   complete. On the date of passing the impugned order dated
    26.7.2010, apparently, the pleadings were not complete.
    Therefore, on that day, the National Commission could have,
  B at best, forfeited the permission to file rejoinder or passed an
    order to the effect that in the absence of any rejoinder,
    pleadings are deemed to be complete, and then an opportunity
    should have been granted to the appellants to lead evidence.
  C Even thereafter, in case, there is no evidence, instead of
    dismissing the appeal for want of evidence, an opportunity of
    hearing to the appellants on the basis of the material already
    available on the record of the case should have been given by
    the National Commission, and then should have decided the
  o complaint on merits. No doubt, the complaint is of the year
    2000 but the fact remains that service was effected on
    respondent nos. 3 and 4 only towards the end of the year 2009,
    and they filed their written statement on 14.1.2010.

 E           7. In the peculiar facts and circumstances of the case, ends
       of justice would require that the appellants be given an
       opportunity to lead evidence in the matter. As rightly held by
       the National Commission, the appellants will not be entitled to
       file rejoinder to the reply filed by respondent nos. 3 and 4.
 F
         8. That being the position, orders dated 26.7.2010 and
   29.10.2010 passed by the National Commission are hereby
   set aside and the complaint filed by the appellants is restored
   to its original number. The appellants are free to file their
 G affidavit in terms of Section 13(4)(iii) of the Consumer
   Protection Act, 1986, within two weeks from today. The parties
   shall appear before the National Commission on 30.04.2015.
   It will be open to the appellants either to appear in person or
   through a counsel on their behalf. We make it clear that in
 H
          QAMAR JAHAN V. NISARAHMAD TYAGI                        797


case the affidavit in evidence, as permitted by this Court, is A
not filed within two weeks from today, that opportunity shall
s~and forfeited. It is further made clear, that in case the
appellants do not appear either in person or through a counsel
before the National Commission on 30.04.2015, the
complaint( Original Petition No.102 of 2000) shall stand B
dismissed. In case, the appellants appear before the National
Commission on the appointed date, either in person or through
a counsel, the matter shall be proceeded further depending
on the steps taken by the parties thereafter.
                                                                  c
    9. The appeals are allowed in the aforesaid terms. No
costs.

Kalpana K. Tripathy                           Appeals allowed.
                                                                  D