Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.76-77 OF 2011
Qamar Jahan and another ..Appellants
versus
Nisar Ahmad Tyagi and others ..Respondents
J U D G M E N T
The appellants filed a complaint (Original Petition No.
102 of 2000) before the National Consumer Disputes Redressal
Commission, New Delhi (for short 'National Commission').
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
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 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:
Signature Not Verified
Digitally signed by
Parveen Kumar Chawla
Date: 2015.03.25
17:34:04 IST
Reason:
“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. It is a case of medical negligence,
2
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 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.”
Thereafter, the appellants filed miscellaneous
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:
“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 26.7.2010. This order would show that
for 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 inclined to recall the
said order and restore the complaint to its
number.
Application is accordingly dismissed.”
Hence, these appeals have been filed before this Court
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.
Respondent nos. 1 and 2 are not represented before this
Court. However, respondent nos. 3 and 4 are duly represented.
We have heard Srimati Qamar Jahan, appellant no.1
3
appearing in person, and Mr. Vinay Garg, learned counsel
representing respondent nos. 3 and 4.
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 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, 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.
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
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.
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
4
file rejoinder to the reply filed by respondent nos. 3 and 4.
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
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
case the affidavit in evidence, as permitted by this Court, is
not filed within two weeks from today, that opportunity shall
stand 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
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.
The appeals are allowed in the aforesaid terms. No
costs.
…....................J.
[KURIAN JOSEPH]
NEW DELHI; …....................J.
MARCH 24, 2015. [R.K. AGRAWAL]
5
ITEM NO.101 COURT NO.12 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 76-77/2011
QAMAR JAHAN & ANR Appellant(s)
VERSUS
NISAR AHMAD TYAGI & ORS. Respondent(s)
Date : 24/03/2015 These appeals were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE R.K. AGRAWAL
For Appellant(s) Ms. Qamar Jahan, in person
For Respondent(s) Mr. Vinay Garg,Adv.
Mr. Tanmay Agarwal, Adv.
Mr. Uday Singh, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the Reportable
judgment, which is placed on the file.
(Parveen Kr. Chawla) (Renu Diwan)
Court Master Court Master