This article is written by Sai Aravind R, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
The Consumer Protection Act, 1986 (hereinafter referred to as “CPA”) is enacted for better protection of the interests of the consumers from exploitation and to save them from adulterated and sub-standard goods and services. The Act provides for the establishment of three-tier quasi-judicial consumer dispute redressal machinery at the district, state and national levels to render simple, inexpensive and speedy justice to consumers. These Redressal agencies have the jurisdiction to adjudicate the complaints received from consumers against any defect in the goods purchased or deficiencies in the services availed or any other trade practice.
This establishment of quasi-judicial authorities at different levels brings the need for a civil procedure and here the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) comes into scope. CPC is the law that consolidates the procedure for Civil Courts in India. But CPA does provide its procedure and also mentions where CPC should be inculcated. This leads to the ambiguity and inapplicability of CPC to proceedings under CPA where it is not expressly mentioned. Hence, the pertinence of CPC in light of various judicial precedents will be discussed in this article.
Expressio unius est exclusio alterius
CPC is made inapplicable in CPA by using the maxim expressio unius est exclusio alterius. Such a principle is used for determining the intention of the legislature. According to this maxim, the explicit mention of a particular thing implies the exclusion of that very thing in other places. In CPA, the CPC has been mentioned twice under Section 13. First, the district consumer forum has been given the same powers as a civil court in certain matters under the CPC. The provision states that the district forum can summon the defendant or witness, discover and production of any evidence, requisitioning of the report of analysis or test, issuing of any commission for the examination, and any other matter which may be prescribed like a civil court under CPC.
Later through an amendment in 1993, the class action complaints were made available under CPA. In Section 13(6) of CPA, it was added that the provisions of Order I Rule 8 of Code of Civil Procedure, 1908 shall be applicable. The National Forum in the case Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd held that the Consumer Protection Act is to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. The procedure in CPC is also imported here. Hence these only references to CPC in section 13 axiomatically make the CPC non-applicable to the rest of the provisions in CPA.
But this is not the only way of interpreting such statutes. According to Justice Mahmood’s dissent in Nursing Das v. Mongol Dubey & Ors., courts cannot act on the principle that every procedure is to be taken as prohibited unless it is expressly provided by the statute, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. Though certain prohibitions are not presumed, the Supreme Court is very clear in holding that CPC is inapplicable to CPA unless expressly mentioned.
Non-applicability of CPC
CPA is generally considered by the court as self-sufficient as it establishes quasi-judicial authorities with its own procedures. The doctrine of expressio unius est exclusio alterius is applied widely to prevent the imposition of procedures in CPC.
- In the case of Morgan Stanley Mutual Fund v. Kartick Das, a complaint was filed in Calcutta District Consumer Disputes Forum against a domestic mutual fund seeking to collect money by misleading the public. For which the district forum passed an interim order directing SEBI and bankers not to issue clearances for the domestic mutual fund. On a special leave petition against such an order, the court struck down the order. The reason is that the reliefs mentioned under Section 14 of CPA are only final relief and do not contain any interim relief whereas an interim relief is an important part of CPC.
- Like the power to grant an interim order, reviewing or recalling an order are one such power of a civil court that is absent under CPA. But in the case of Jyotsana Arvind Kumar Shah and Ors. v. Bombay Hospital Trust, a state commission passed an ex parte order against a hospital and the same was set aside by the state commission. This was challenged and the Supreme Court held that redressal agencies have no power to recall or review their ex parte order as there is no provision in the CPA enabling the state commission to do so. The same question of whether district consumer forums and state commissions have the power to set aside their ex parte orders or in other words have the power to recall or review their orders arose in Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Ors. The court maintained the stance and held that the Tribunals are creatures of a statute that derive their power from the express provisions in the statute. So only the National Commission has the power to review its ex parte orders through Section 22A, Consumer Protection (Amendment) Act, 2002.
- The Supreme Court also discussed the applicability of the rule of prohibition under Order 9 Rule 9(1) CPC to CPA in New India Assurance Co. Ltd. v. R. Srinivasan. In which a complaint was filed in the state commission against the New India Assurance Co. Ltd in respect of the damage caused to the complainant’s vehicle. The complaint was dismissed for default and the application to restore it was also dismissed. So, a fresh complaint was filed by the complainant in a district consumer forum and it was contended that such a complaint on the same cause of action wouldn’t lie as the application for restoration was also rejected by the state commission. The court held that there is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC. Hence the rule of prohibition cannot be extended to the proceedings before the district forum or the state commission. But the court also mentioned that if a complainant harasses a party by repeatedly filing the complaint, then the district forum or the state or national commission would be open to them to dismiss the fresh complaint by invoking the principles of Order 9 Rule 9 CPC on the grounds of abuse of the process available under CPA.
- Besides these precedents, the court once again addressed the issue of whether the consumer forum has the power to extend the filing of written statements as given under CPC beyond the period of 45 days prescribed under Section 13(2)(a) of CPA. To which the Supreme Court in New India Assurance Company Ltd. v Hilli Multipurpose Cold Storage, held that time provided under CPA is mandatory and not directory whereas a time of 120 days provided under Order 8 Rule 1 CPC read with Order 8 Rule 10 CPC is not meant to be mandatory, but the only directory. So, civil courts have the discretion to grant the time beyond the period but not consumer forums.
Applicability of CPC under justice, equity and good conscience
Apart from the majority of judgments, the Supreme Court has allowed the consumer forums to inculcate certain provisions of CPC in the interest of principles of natural justice. In the case of Sovintorg (India) Ltd. v. State Bank of India, New Delhi, state commission ordered interest on a compensation amount in a complaint against the State Bank of India and the same was upheld by the national commission as well. It was contended that such an interest was not applicable as it was nowhere mentioned under CPA and only Section 34 of CPC empowered it to do so. But still, the apex court allowed the order and reasoned that section 34 of CPC is based upon justice, equity and good conscience. Hence such provision could be applied to CPA.
Furthermore, the National Commission allowed amendment for implementing a new party in the complaint in the case of Madan Lal Arora v. Dharampal Ji, M.D.H. and Ors. It is pertinent to note that such application for amendment was moved under Section 151 read with Order 1 Rule 10 of CPC since there was no similar provision in CPA. The reason given was that the crux of the matter for the court is to ferret out the truth and there is a paramount duty cast upon the court is to impart justice. Therefore, the provisions of CPC are applied to consumer proceedings in this case.
At the outset, the issue of application of CPC arose here only because the CPA constitutes a quasi-judicial authority. Every quasi-judicial authority such as consumer forums or national green tribunal or income tax appellate tribunal adjudicate claims with their own set of predetermined rules guided by principles of natural justice. speedy disposal of disputes is one such feature of such quasi-judicial authorities. This is the reason behind making the time for filing the written statement under CPA mandatory and not allowing extension of time for filing written statements by CPC. Hence, the courts have avoided importing provisions of CPC which may override the procedure given under the original constituting statute.
The decisions by the apex court infer that the inapplicability of CPC will not lead to misuse of the gaps in CPA. For instance, the court did not fail to empower the consumer forums to dismiss the fresh complaint under the principles of CPC if the complaint is filed to harass the other party and abuse the process of law. Moreover, there is no bar in applying provisions of CPC to the proceedings under the consumer forums if such provision is based upon justice, equity and good conscience.
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