RAJEEV HITENDRA PATHAK & OTHERSversusACHYUT KASHINATH KAREKAR & ANOTHER

                                          -
                    [2011) 10 S.C.R. 513


         RAJEEV HITENDRA PATHAK & OTHERS                          A
                              v.
      ACHYUT KASHINATH KAREKAR & ANOTHER
           (Civil Appeal No.4307 of 2007)
                    .AUGUST 19, 2011
                                                                  B
 [DALVEER BHANDARI, DR. MUKUNDAKAM SHARMA
            AND ANIL R. DAVE, JJ.]

     CONSUMER PROTECTION ACT, 1986:
                                                                  c
     Sections 12, 13 and 14 - Power of review and to set aside
ex parte orders - Held: District Consumer Forums and 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.      0
     Section 22 (as amended in 2002) read with ss. 12, 13
and 14 ands. 22-A (as introduced in 2002) - Power and
procedure applicable to National Commission and power to
set aside ex parte orders - Held: After amendment in s. 22
and introduction of s. 22-A, the power of review or recall has    E
vested with the National Commission only - The findings of
the National Commission holding that the State Commission
can review its own orders are set aside - However, the findings
of the National Commission holding that the complaint be
restored to its original number for hearing in accordance with    F
law is upheld.

     The wife of respondent no. 1 (in CA No. 4307 of 2007)
died during surgery on 8.10.1997. A complaint was filed
alleging deficiency in service and claiming compensation          G
of Rs. 15,00,0001-. On 9.9.2004, the State Commission
dismissed the complaint for want of prosecution.
However, on an application by the complainants, the
State Commission recalled the order dated 9.9.2004 and
                             513                                  H
    514    SUPREME COURT REPORTS             [2011] 10 S.C.R.

A restored the complaint. The appellants filed a revision
  petition before the National Commission contending that
  (i) the State Commission did not have power to restore
  the complaint and (ii) the State Commission erred in
  restoring the complaint without issuing notice to the
B appellants. The National Commission· dismissed the
  revision petition. The said order gave rise to C.A. No.
  4307 of 2007. C.A. No. 8155 of 2001 was filed against the
  order passed by the National Commission dismissing the
  complainant's application for setting aside the ex parte
c order passed by it.
       The two-Judge Bench before which the appeals were
  listed for hearing, noticed the divergent views of the
  Court on the question of power of the State Commission
  to review or recall its ex parte order and, consequently,
D the appeals were listed before the three-Judge Bench.
       The main question for consideration before the Court
  was: "whether the District Cc nsumer Forums and the
  State Commissions have the power to set aside their
E own ex parte orders or in other words have the power to·
  call or review their own orders?"

          Disposing of the appeals, the Court

          HELD: 1.1 On a careful analysis of the provisions of
F the Consumer Protection Act, 1986 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
G power of review and the .powers which have not been
  expressly given by the statute cannot be exercised. [para
  36) (529-D-E]
       1.2 The legislature chose to give the National
    Commission the power to review its ex parte orders.
H
      RAJEEV HITENDRA PATHAK v. ACHYUT                 515
             KASHINATH KAREKAR
Before amendment, against dismissal of any case by the       A
Commission, the consumer had to rush to this Court.
The amendment in s.22 ·and introduction of s. 22-A were
done for the convenience of the consumers. [para 37]
(529-F]
     Jyotsana Arvind Kumar Shah & Others v. Bombay
                                                             8
·Hospital Trust (1999) 4 SCC 325 - upheld
    New India Assurance Co. Ltd. v. R. Srinivasan 2000 (1)
           =
 SCR 1228 (2000) 3 sec 242 - overruled                -
     1.3 In view of the legal position, in Civil Appeal      C
No.4307 of 2007, the findings of the National Commission
are set aside as far as it has held that the State
Commission can review its own orders. After the
amendment in s. 22 and introduction of s. 22A in the Act
in the year 2002, the power of review or recall has vested   D
with the National Commission only. However, this Court
affirms the findings of the National Commis~ion holding
that the Complaint No.473 of 1999 be restored to its
original number for hearing in accordance with law. There
has been considerable delay in disposal of the complaint.    E
Therefore, the State Commission is directed to dispose
of Complaint No.473 of 1999 as expeditiously as
possible. [paras 39-40) (530-A-C]
     1.4 Similarly, in Civil Appeal No.8155 of 2001, the
                                                             F
impugned order is set aside and the National
Commission is directed to dispose of the Original Petition
No.110 of 2003 de novo as expeditiously as possible.
[para 41] [530-D-E]
    Morgan Stanley Mutual Fund v. Kartick Das 1994 (1) G
                =
Suppl. SCR 136 (1994) 4 SCC 225; Gulzari Lal Agarwal
                                              =
v. Accounts Officer 1996 (6) Suppl. SCR 708 (1996) 10
SCC 590; Mis Eureka Estates (P) Ltd. v. A.P. State Consumer
Disputes Redressal Commission and Others AIR 2005 AP
118 - Cited.                                                 H
    516     SUPREME COURT REPORTS              [2011] 10 S.C.R.


A                      Case Law Reference:
          (1999) 4 sec 325           upheld            para 8
          2000 (1) SCR 1228          overruled         para 9
          1994 (1) Suppl. SCR 136 Cited                para 14
B
          1996 (6) Supp.I. SCR 708 Cited               para 15
          AIR 2005 AP 118            Cited             para 23
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
C 4307 of 2007.

        From the Judgment & Order dated 16.11.2005 of the
    National Consumer Disputes Commission, at New Delhi in
    Revision Petition No. 551 of 2005.
D                                 WITH
    C.A. No.8155 of 2001.

       Siddharth Bhatnagar, M.S. Ganesh, Pawan Kumar Bansal
  (for V.D. Khanna, V.G. Pragasam, S.J. Aristotle, Prabu
E Ramasubramanian, L.A.J. Selvan, Jay Kishore Singh, (for
  Ravindra Keshvrao Adsure, Anil Kumar Jha for the appearing
  parties.

          The Judgment of the Court was delivered by
F      DALVEER BHANDARI, J. 1. These appeals emanate
  from the order dated 16.11.2005 in Revision Petition No.551
  of 2005 and order dated 12.7.2001 in Miscellaneous Petition
  No.1 of 2001 in Original Petition No.110 of 1993 passed by
  the National Consumer Disputes Redressal Commission, New
G Delhi.

       2. The main question which arises for consideration is
    whether the District Consumer Forums and the State
    Commissions have the power to set aside their own ex parte
H
      RAJEEV HITENDRA PATHAK v. ACHYUT                        517
   KASHINATH KAREKAR [DALVEER BHANDARI, J.]
 orders or in other words have the power to recall or review their   A
 own orders?

       3. The questions of law involved in both the appeals are
  identical, therefore, we deem it appropriate to dispose of both
· these appeals by a common judgment.                                B
     4. Brief facts necessary to dispose of these appeals are
 recapitulated as under:

 CIVIL APPEAL N0.4307 OF 2007

      5. Smita Achyut Karekar was admitted to Ashirwad
                                                                     c
 Nursing Home ·as she was suffering from the ailment of slip disc.
 The operation was performed on 8.10.1997. It was noticed, at
 about 3.45 pm on that day, that her blood vessels had ruptured
 accidentally during the surgery. She was declared dead at 5.35      D
 pm.

      6. The complainants issued a legal notice on 24.7.1999.
 Reply to the legal notice was sent on 7.8.1999. The
 complainants filed complaint alleging deficiency in service and
 claimed compensation of Rs.15,00,000/-. The complainants did        E
 not take necessary steps to remove objection and to complete
 procedure under the Consumer Protection Act, 1986. The State
 Commission, Maharashtra issued notice to the opposite
 parties/appellants herein on 10.02.2004. On 9.9.2004, the State
 Commission dismissed the complaint for want of prosecution.         F
 On 04.11.2004, the complainants filed an application for
 recalling 9.9.2004 order and consequently the State
 Commission recalled the order dated 9.9.2004 and restored
 the complaint.

     7. The appellants aggrieved by the said order preferred a       G
 Revision Petition No".551 of 2005 before the National
 Consumer Disputes Redressal Commission, New Delhi. The
 appellants in the revision petition made two main arguments
 before the Commission : firstly, that the State Commission did
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    518     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   not have the power to restore the complaint and, secondly, that
    the State Commission restored the complaint without issuing
    notice to the appellants. The National Commission dismissed
    the revision petition which has been challenged by the
    appellants before this Court.
B
       8. The appellants relied on the judgment in the case of
  Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital
  Trust (1999) 4 SCC 325. In this case, the Court held that the
  State Commission did not have the power to review or recall
C its ex parte order.

         9. In New India Assurance Co. Ltd. v. R. Srinivasan (2000)
    3 SCC 242, this Court took the contrary view and held' that the
    State Commission could review or recall its ex parte order.

D        10." In the instant case, a two-Judge Bench of this Court
    vide judgment and order dated 17.9.2007 reported in 2007 (11)
    SCALE 166 noted the controversy and observed as under:

          "5. In Jyotsana's case it was observed at para 7 as follows:

E                "We heard the learned counsel on both sides for
                 quite some time. When we asked the learned
                 counsel appearing for the respondent to point out
                 the provision in the Act which enables the State
                 Commission to set aside the reasoned order
F                passed, though ex parte, he could not lay his hands
                 on any of the provisions in the Act. As a matter of
                 fact, before the State Commission the appellants
                 brought to its notice the two orders, one passed by
                 the Bihar State Commission in Court Master, UCO
G                Bank v. Ram Govind Agarwal 1996 (1) CPR 351
                 and the other passed by the National Commission
                 in Director, Forest Research Institute v. Sunshine
                 Enterprises 1997 (1) CPR 42 holding that the
                 redressal agencies have no power to recall or
                 review their ex parte order. The State Commission
H
   RAJEEV HITENDRA PATHAK v. ACHYUT        519
KASHINATH KAREKAR [DALVEER BHANDARI, J.] .
        had distinguished the abovesaid orders on the            A
        ground that in those two cases the opponents had
        not only not appeared but also failed to put in their
        written statements. In other words, in the case on
        hand, according to the State Com111ission, the
        opponent (respondent) having filed the written           B
        statements, the failure to consider the same by the
        State Commission before passing the order would
        be a valid ground for setting aside the ex parte
        order. The State Commission, however, fell into an
        error in not bearing in mind that the Act under which    c
        it is functioning has not provided it with any
        jurisdiction to set aside the ex parte reasoned
        order. It is also seen from the order of the State
        Commission that it was influenced by the
        concluding portion of the judgment of the Bombay
                                                                 0
        High Court to the effect that the respondent (writ
        petitioner) could approach the appellate authority or
        make an appropriate application before the State
        Commission for setting aside the ex parte order, if
        permissible under the law. Here again, the State         E
        Commission failed to appreciate that the
        observation of the High Court would help the
        respondent, if permissible under the law. If the law
        does not permit the respondent to move the
        application for setting aside the ex parte order,
        which appears to be the position, the order of the       F
        State Commission setting aside the ex parte order
        cannot be sustained. As stated earlier, there is no
        dispute that there is no provision in the Act enabling
        the State Commission to set aside an ex parte
        order."                                                  G

  6. Subsequently, in New India Assurance case this Court
 appears to have taken a different view as it is evident from
 what has been stated in para 18, the same reads as
 follows:                                                        H
    520     SUPREME COURT REPORTS                     [2011) 10 S.C.R.


A                "We only intend to invoke the spirit of the principle
                 behind the above dictum in support of our view 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.
B                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
c                proceedings. That is not the function of the court or,
                 for that matter of a 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
D
                 the complaint on good cause being shown for the
                 nonappearance of the complainant."

          7. In the latter case i.e. New India Assurance case
          reference was not made to the earlier decision in Jyotsana
E         case. Further the effect of the amendment to the Act in
          2003 whereby Section 22A was introduced has the effect
          of conferment of power of restoration on the National
          Commission, but not to the State Commission. In view of
          the divergence of views expressed by coordinate Benches,
F         we refer the matter to a larger Bench to consider the
          question whether the State Commission has the power to
          recall the ex parte order. Records be placed before the
          Hon'ble Chief Justice of India for appropriate orders."

G      11. We have been called upon to decide whether the State
    Commission has the power to recall an ex parte order.

        12. Shri Siddharth Bhatnagar, learned senior counsel
    appearing for the appellants in Civil Appeal No.4307 of 2007
    submitted that the Consumer Tribunals set up under the
H
     RAJEEV HITENDRA PATHAK v. ACHYUT                        521
  KASHINATH KAREKAR [DALVEER BHANDARI, J.]

Consumer Protection Act, 1986 are creatures of that Statute         A
and derive their powers only from the express provisions of the
Statute. He has drawn our attention to various provisions of the
ConsumerProtection Act, 1986 to strengthen his submission.
He referred to Section 13(4) of the Consumer Protection Act,
1986 which reads as under:                                          B

    "13 (4) For the purposes of this Section, the District Forum
    shall have the same powers as are vested in a Civil Court
    under the Code of Civil Procedure, 1908 (5of1908), while
    trying a suit in respect of the following matters, namely:-
                                                                    c
      (i)     the summoning and enforcing the attendanceof any
              defendant or witness and examining the witness on
              oath;

      (ii)    the. discovery and production of any document or      D
              other material object produced 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   E
              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."            F

    13. Mr. Bhatnagar has also drawn our attention to
Regulation 26(1) of the Consumer Protection Regulations,
2005, framed in exercise of powers conferred by Section 30-
A of the Consumer Protection Act, 1986. Regulation 26(1)            G
reads as follows:

     "26. Miscellaneous- (1) In all proceedings before the
     Consumer Forum, endeavour shall be made by the parties
     and their counsel to avoid the use of provisions of Code
     nf Civil Procedure, 1908 (5 of 1908):
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    522     SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A         Provided that the provisions of the Code of Civil Procedure,
          1908 may be applied which have been referred to in the
          Act or in the rules made thereunder."

       14. Mr. Bhatnagar submitted that only very few provisions
B of the Code of Civil Procedure have been made applicable to
  the proceedings before the District Forums and the State
  Commissions under Section 18 of the Consumer Protection
  Act, which applies Sections 13 and 14 to the State
  Commission and the National Commission (under Section
C 22(1) are those under Section 13(4)). He relied on the judgment
  of this Court in Morgan Stanley Mutual Fund v. Kartick Das
  (1994) 4 sec 225 to strengthen his argument that the
  consumer tribunals can derive powers only from the express
  provisions in the Statute. In the said case, the Court observed
  as under:
D
       "44. A careful reading of the above discloses that there is
       no power under the Act to grant any interim relief of (sic
       or) even an ad interim relief. Only a final relief could be
       granted. If the jurisdiction of the Forum to grant relief is
E      confined to the four clauses mentioned under Section 14,
       it passes our comprehension as to how an interim
       injunction could ever be granted disregarding even the
       balance of convenience."

        15. Mr. Bhatnagar also placed reliance on another
F judgment of this Court in Gulzari Lal Agarwal v. Accounts
  Officer (1996) 10 sec 590. In this case, the Court relied on
  earlier judgment of this Court in the case of Morgan Stanley
  Mutual Fund and observed that the Consumer Forum has no
  jurisdiction or power to pass any interim order pending disposal
G of the original complaint filed before it.

       16. Mr. Bhatnagar relied on Section 17 of the Act which
  deals with the jurisdiction of the State Commission. Sections
  17-A and 17-B were added by the 2002 Amendment of the Act
H dealing with the "Transfer of Cases" and "Circuit Benches"
    RAJEEV HITENDRA PATHAK v. ACHYUT                       523
 KASHINATH KAREKAR [DALVEER BHANDARI, J.]
respectively. The objects and reasons for introducing the said    A
provisions by way of the said amendment were as follows:

    "Objects and Reasons- Clause 15 (old) seeks to insert
    a new Section 17-A to empower the State Commission
    to transfer a case from one District Forum to another         B
    District Forum within the State if required for the ends of
    justice. It also seeks to insert another new Section 17-8
    to enable the State Commissions to hold Circuit Benches."

    17. Mr. Bhatnagar also relied on Section 22 of the Act,
which deals with the power and procedure of the National          C
Commission. Before the 2002 Amendment, the said provision
was as follows:

     "22. Power of and procedure applicable to the National
Commission- The National Commission shall, in the disposal        D
of any complaints or any proceedings before it, have-

     (a)   the powers of a Civil Courts as speeified in Sub-
           sections (4), (5) and (6) of Section 13;

     (b)   the power to issue an order to the opposite party      E
           directing him to do any one or more of the things
           referred to in clauses (a) to (i) of Sub-Section (1)
           of Section 14, and follow such procedure as may
           be prescribed by the Central Government."
                                                                  F
    18. After the 2002 Amendment, Section 22 of the Act now
reads as follows:

    "22. Power and procedure applicable to the National
    Commission-(1) The provisions of Sections 12, 13 and
    14 and the rules made thereunder for the disposal of          G
    complaints by the District Forum shall, with such
    modifications as may be considered necessary by the
    Commission, be applicable to the disposal of disputes by
    the National Commission.
                                                                  H
    524     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A         (2) Without prejudice to the provisions contained in Sub-
          section (1 ), the National Commission shall have the
          power to review any order made by it, when there is an
          error apparent on the face of record."

      19. The 2002 Amendment also introduced Section 22A
B which reads as follows:

          "22A. Power to set aside ex parte orders.-Where an
          order is passed by the National Commission ex parte
          against the opposite party or a complainant, as the case
C         may be, the aggrieved party may apply to the Commission
          to set aside the said order in the interest of justice."

       20. Mr. Bhatnagar contended that Section 22(2) was
  introduced in 2002 to give the National Commission the power
D to review its own order. This power could not have been used
  by the Commission before the amendment. After amendment,
  now the Commission has specific power to set aside an ex
  parte order. This power has only been given to the National
  Commission and not extended to the District Forums or the
E State Commissions. If the legislature intended to give this
  power to the State Commissions and District Forums then it
  would have extended the same to those forums also.

        21. Mr. Bhatnagar has also drawn our attention to the
    objects and reasons for carrying out the amendment which
F   reads as follows:

          "Objects and Reasons- Clause 21 (old) seeks to
          substitute Section 22 so that the provisions of Sections 12,
          13 and 14 and the rules made thereunder for the disposal
          of complaints by the District Forum, shall, with such
G
          modifications as may be considered necessary by the
          Commission, be applicable to the disposal of disputes by
          the National Commission. It also seeks to empower the
          National Commission to review any order made by it when
          there is an error apparent on the face of record. These
H
     RAJEEV HITENDRA PATHAK v. ACHYUT                        525
  KASHINATH KAREKAR [DALVEER BHANDARI, J.]
     provisions will make the powers and procedures in respect      A
     of the National Commission more explicit. It also seeks to
     insert new Sections 22-A, 22-B and 22-C and 22-D. New
     Section 22-A empowers the National Commission to set
     aside ex parte orders against the opposite party or
     complainant in the interest of justice ........ "              B

     22. Mr. Bhatnagar submitted that the limited applicability
of the provisions of the Civil Procedure Code to the Tribunals
under the Act is under Section 13(4) of the Act. There is no
power of review or recall under the said provision. Even under      C
Section 13(4)(vi), no Rule has been framed in terms of Section
30(1) by the Central Government which provides power to
review or recall of orders.

     23. Learned senior counsel for the appellants also relied
on Mis Eureka Estates (P) Ltd. v. A.P. State Consumer               D
Disputes Redressa/ Commission and Others AIR 2005 AP
118 in which the Court observed that the District Forums and
the State Commissions are entitled to exercise only such
powers which are specifically vested in them under the Act and
the Rules.                                                          E
     24. Mr. Bhatnagar submitted that it is evident from the
Statement of Objects and Reasons of the Act that the purpose
of the Act is to provide speedy and simple redressal to
consumer disputes. It is for this reason that all the provisions
of the Civil Procedure Code have not been extended to the           F
Consumer Forums.

     25. Mr. Bhatnagar further submitted that the salutary object
of speedy and simple redressal under the Act is to be found
inter alia in Sections 13(2) and (3) of the Act which provide for   G
the procedure to be adopted by the forum in deciding the
complaints admitted by it. The said provisions read as follows:

    13. (2) The District Forum shall, if the complaints admitted
by it under Section 12 relates to goods in respect of which the     H
    526     SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A   procedure specified in Sub- Section (1) cannot be followed, or
    if the complaint relates to any services,- ·

           (a)   refer a copy of such complaint to the opposite party
                 directing him to give his version of the case within
                 a period of thirty days or such extended period not
B
                 exceeding fifteen days as may be granted by the
                 District Forum;

           (b)   where the opposite party, on receipt of a copy of
                 the complaint, referred to him under clause (a)
c                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 Forum, the District Forum shall proceed to
                 settle the consumer dispute,-
D
                 (i)    on the basis of evidence brought to its notice
                        by the complainant and the opposite party,
                        where the opposite party denies or disputes
                        the allegations contained in the complaint, or
E                (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 Forum.
F
           (c)   where the complainant fails to appear on th~ date
                 of hearing before the District Forum, the District
                 Forum may either dismiss the complaint for default
                 or decide it on merits.
G         (3) No proceedings complying with the procedure laid
          down in Sub-Sections (1) and (2) shall be called in
          question in any court on the ground that the principles of
          natural justice have not been complied with."

H
     RAJEEV HITENDRA PATHAK v. ACHYUT      527
  KASHINATH KAREKAR [DALVEER BHANDARI, J.]
     26. Mr. Bhatnagar also relied on Section 12(3) of the Act       A
!which reads as follows:

    "12(3) On receipt of a complaint made under Sub-Section
    (1), the District Forum may, by order, allow the complaint
    to be proceeded with or rejected:                                B

    Provided that a complaint shall not be rejected under this
    Sub-Section unless an opportunity of being heard has
    been given to the complainant:

    Provided further that the admissibility of the complaint shall   c
    ordinarily be decided within twentyone days from the date
    on which the complaint was received." ·

     27. Mr. Bhatnagar tried to explain the legislative intent
behind introducing Section 22-A. According to him, only the
National Commission has been given power to set aside ex             D
parte orders and the same power has not been extended to
the District Forums or the State Commissions because against
the orders of the District Forums and the State Commissions,
appeal or revision can be filed before the State Commission
and the National Commission respectively. But in the case of         E
the orders of the National Commission, prior to the amendment,
the parties were compelled to approach this Court even against
the orders by which the cases were dismissed in default. It
became extremely expensive and time consuming. In this view
of the matter, it became imperative to give this power to the        F
National Commission.

     28. According to the counsel for the appellants, in New
India Assurance Co. Ltd., this Court did not notice the earlier
decision in Jyotsana's case. He submitted that the Tribunals         G
constituted under the Consumer Protection Act, 1986 exercise
only such powers as are expressly conferred by the provisions
of the said Act and Rules framed thereunder. Since no power
of review and recall was conferred on the District Forums and
the State Commissions, they can exercise no such power.
                                                                     H
     528    SUPREME COURT REPORTS                  [2011] 10 S.C.R.


 A      29. The counter affidavit was filed by the respondents
   statingthat the Commission was justified in setting aside the
   ex parte order and restoring the respondents' complaint. The
   counter affidavit also states that the respondents cannot be
   deprived of their right without contest on the basis of trivial
 B technicalities.

         30. The respondents relied upon the judgment of this Court
   in New India Assurance Co. Ltd. in which this Court held that
   the Consumer Courts have inherent powers to restore the
   complaints dismissed for default. It is also stated in the counter
 C affidavit that due to old age, respondent no.1 lost track of the
   case and therefore, the State Commission was justified in
   setting aside the ex parte order in order to ensure that justice
   is done to the parties.

 D CIVIL APPEAL N0.8155 OF 2001

        31. In Civil Appeal No.8155 of 2001, the National
   Commission passed an ex parte order and in the appeal
   against the order, this Court gave liberty to the appellants to
 E approach the Commission for setting aside the ex parte order.
   Thereafter, an application was filed by the complainants for
   review of the order. The Commission vide order dated
   12. 7 .2001 (relied on the judgment of Jyotsana's case)
   dismissed the application. Aggrieved by the said order, the
   appellant has filed this appeal.
 F
         32. Mr. M.S. Ganesh, learned senior counsel appearing
    on behalf of the appellants in Civil Appeal No.8155 of 2001
    submitted that the National Commission has implied and
    inherent power to recall the order dated 30.5.1996 passed in
1 G Original Petitjon No.110 of 1993.

       . 33. Mr. Ganesh also submitted that the notice of hearing
     sent by the National Commission was never served on the
     counsel for the appellants yet the National Commission
 H
    RAJEEV HITENDRA PATHAK v. ACHYUT                        529
 KASHINATH KAREKAR [DALVEER BHANDARI, J.]
proceeded to an ex parte decision on the appellants' complaint     A
and dismissed it on the ground of limitation.

     34. According to Mr. Ganesh, the decision in Jyotsana's
case is manifestly per incuriam. It does not even refer to the
doctrine of implied powers and was not aware of its                B
applicability. The later decision in New India Assurance Co.
Ltd. is expressly mindful of the doctrine. He submitted that an
external aid to the interpretation of the Consumer Protection
Act, 1986 also reinforces the above construction of the Act.

    35. We have carefully scrutinized the provisions of the        C
Consumer Protection Act, 1986. We have also carefully
analyzed the submissions and the cases cited by the learned
counsel for the parties.

     36. On careful analysis of the provisions of the Act, it is   D
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       E
given by the Statute cannot be exercised.

     37. The legislature chose to give the National Commission
power to review its ex parte orders. Before amendment, against
dismissal of any case by the Commission, the consumer had
to rush to this Court. The amendment in Section 22 and             F
introduction of Section 22-A were done for the convenience of
the consumers. We have carefully ascertained the legislative
intention and interpreted the law accordingly.

    38. In our considered opinion, the decision in Jyotsana's      G
case laid down the correct law and the view taken in the later
decision of this Court in New India Assurance Co. Ltd. is
untenable and cannot be sustained.

     39. In view of the legal position, in Civil Appeal No.4307
of 2007, the findings of the National Commission are set aside     H
    530    SUPREME COURT REPORTS                [2011) 10 S.C.R.


A as far as it has held that the State Commission can review its
  own orders. After the amendment in Section 22 and
  introduction of Section 22A in the Act in the year 2002 by which
  the power of review or recall has vested with the National
  Commission only. However, we agree with the findings of the
B National Commission holding that the Complaint No.473 of
  1999 be restored to its original number for hearing in
  accordance with law.

       40. There has been considerable delay in disposal of the
C complaint. Therefore, we direct the State Commission to
  dispose of the Complaint No.4 73 of 1999 [in Civil Appeal
  No.4307 of 2007) as expeditiously as possible and in any event
  within three months from the date of the communication of this
  order.

D        41. Similarly, in Civil Appeal No.8155 of 2001, we set
    aside the impugned order and direct the National Commission
    to dispose of the Original Petition No.110 of 2003 de novo as
    expeditiously as possible and in any event within three months
    from the date of the communication of t11is order.
E
         42. Both the appeals are disposed of accordingly. The
    parties are directed to bear their own costs.

    R.P.                                   Appeals disposed of.