Whether Cases pending before Consumer Forum can be Transferred to any other Consumer Forum ? [Case Law]

Code of Civil Procedure, 1908 - Section 24 - Consumer Protection Act, 1986 - Section 17A - Transfer of cases - General power of transfer and withdrawal - There are no provisions engrafted in the Consumer Protection Act, 1986 which makes Section 24 of the CPC applicable in the matter of transfer of cases arising under the Consumer Protection Act, 1986

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ALEXANDER THOMAS, J.

Tr.P.(C) No. 246 of 2017

Dated this the 1st day of March, 2018 

TO TRANSFER CC NO. 42/2015 OF CONSUMER DISPUTES REDRESSAL FORUM ALAPPUZHA, TO CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM

PETITIONER/COMPLAINANT

PEETHAMBARAN

BY ADV.SRI.K.C.SUDHEER RESPONDENT/OPPOSITE PARTY

V.K. SATHYASWAROOPAN

O R D E R 

The main prayer in this Transfer Petition (Civil) filed under Section 24 of the Code of Civil Procedure is as follows : 

“In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to transfer CC No.42 of 2015 from the files of Consumer Disputes Redressal Forum, Alappuzha to any other District preferably to Consumer Disputes Redressal Forum, Ernakulam, in the interest of justice.” 

2. Sri.Saigi Jacob Palatty, learned Senior Government Pleader was requested by this Court to assist this Court in this matter.

3. Essentially the petitioner seeks transfer of Complaint Case, CC No.42/2015 now pending on the file of the District Consumer Redressal Forum, Alappuzha to the District Consumer Redressal Forum, Ernakulam. The present application has been filed only under the enabling provisions of Section 24 of the CPC. From a mere reading of Section 24 of the CPC it appears that cases pending before the Consumer Disputes Redressal Forum may not come within the zone and province of Section 24 of the CPC. Section 24 of the CPC reads as follows : 

“24. General power of transfer and withdrawal (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage.- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and (i) try to dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,- (a) courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) “proceeding” includes a proceeding for the execution of a decree or order.

(4) The court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a court of small causes.

(5) A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it.” 

3. A mere reading of sub-section (1) of Section 24 of the CPC would make it clear that the said provision empowers the High Court or the District Court concerned at any stage, a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same or b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and (i) try to dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.

4. Therefore, unless the court from which the case is sought to be transferred is held to be a court which is subordinate to the High Court or the District Court of the District concerned, as the case may be, the power under Section 24 of the CPC cannot be invoked. In other words, the expression “Court” appearing in Section 24 (1) could be broadly understood as Civil Court, as contemplated in Kerala Civil Court's Act, 1957 and the Code of Civil Procedure, 1908. However, it is also pertinent to note that there was divergence of opinion between the various High Courts on the issue as to whether the Motor Accidents Claims Tribunal (M.A.C.T) constituted under the provisions of the Mother Vehicles Act, could be treated as a 'court' within the meaning of Sec. 24 of the C.P.C. for effecting transfer of cases from one such Tribunal to another.

5. A 2-Judge Bench of the Apex Court in the judgment in State of Haryana v. Smt.Darshana Devi & Ors. reported in (1979) 2 SCC 236 = AIR 1979 SC 855, has held that the provisions in Order XXXIII C.P.C. (suits filed by indigent persons) will apply to Motor Accidents Claims Tribunals constituted as per the provisions of Motor Vehicles Act, since such Tribunals have the trappings of the civil court, etc. Based on the said reasoning of the Apex Court in Smt.Darshana Devi's case supra, the Apex Court had later held in the judgment dt.13.12.1982 in Bhagwati Devi & Ors. v. M/s. I.S.Goel & Ors. reported in 1983 A.C.J. 123, that in view of the said observations of the Apex Court in Darshana Devi's case supra, their Lordships of the Supreme Court were of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, is a civil court for the purpose of Sec.25 of the C.P.C. and that the cases considered therein could be transferred from the file of the one M.A.C.T to the file of another such Tribunal by virtue of the enabling powers conferred on the Apex Court under Sec. 25 of the C.P.C. for transfer of cases. The judgment dated 13.12.1982 of the Apex Court in the case Bhagwati Devi & Ors. v. M/s. I.S.Goel & Ors. reported in 1983 A.C.J. 123, reads as follows: 

"In view of the observations of this Court in State of Haryana v. Darshana Devi, we are of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act is a civil Court for the purposes of section 25 of the Code of Civil Procedure. We are satisfied that the cases before us are fit cases for being transferred from the file of the Motor Accidents Claims Tribunal, Moradabad, to the file of the Motor Accidents Claims Tribunal, Delhi. The transfer petitions are accordingly allowed and Compensation Application Nos.3 to 15 of 1982 pending before the Motor Accidents Claims Tribunal, Moradabad are transferred to the file of the Motor Accidents Claims Tribunal, Delhi." 

Placing reliance on the abovesaid reasonings of the Apex Court in Bhagwati Devi's case supra (1983 ACJ 123), the Madras High Court in Kanniammal v. P.Narayanan, reported in AIR 1989 Madras 350, Gauhati High Court in Raju Das. v. Sushil Kumar Das, reported in AIR 1991 Gauhati 71, Jammu & Kashmir High Court in Amar Kaur & Anr. v. Kulbir Singh & Ors. reported in AIR 1989 J&K 7, Karnataka High Court in Noreen R.Srikantaiah v. Dasarath Ramaiah, reported in AIR 1985 Karnataka 208, etc. have held the Motor Accidents Claims Tribunal constituted under the provisions of the Motor Vehicles Act could be treated as a 'court' within the meaning of Sec. 24 of the C.P.C. so as to effect transfer of cases from one bench of the Tribunal to another. Incidentally, it is pertinent to note that a Division Bench of this Court in the judgment dated 21.12.1979 (C.R.P.No. 1292/1979) in the case Beeran v. Rajappan, reported in 1980 KLT 210, has held that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, cannot be treated as a civil court within the meaning of Sec. 24 of the C.P.C. and later placing reliance on the said Division Bench judgment of this Court in Beeran's case supra, (1980 KLT 210), a learned Single Judge of this Court in the judgment dt.31.3.1986 in the case in United India Insurance Co. Ltd. v. Padmini Amma, reported in 1986 KLT 581, has held that in view of the said view taken by the Division Bench in Beeran's case supra, [1980 KLT 210 (D.B)], the Motor Accidents Claims Tribunal constituted under the provisions of the Motor Vehicles Act is not a court subordinate to the High Court, etc. But it appears from a reading of the judgment dated 31.3.1986 of the learned Single Judge of this Court in Padmini Amma's case supra [1986 KLT 581] that the judgment dated 13.12.1982 of the Apex Court in Bhagwati Devi v. M/s. I.S.Goel & Ors. reported in 1983 A.C.J. 123 has not been brought to the notice of of this Court. True that the Tribunal like the M.A.C.T. cannot be construed as a civil court stricto sensu, but it has to be treated as a court for the limited purpose of the applicability of Secs.24 and 25 of the C.P.C. as can be seen from the aforecited judgments. That apart, as per Rule 5A of the Kerala Motor Accidents Tribunal Rules, 1977, framed under the provisions contained in the Motor Vehicles Act, 1939, the power has been explicitly conferred on the High Court to transfer cases from one bench of the Motor Accidents Claims Tribunal to another. After the coming into force of Motor Vehicles Act, 1988, Rule 374 of the Kerala Motor Vehicles Rules, 1989 has been framed, which confers power on the High Court to transfer claim petition from the file of one M.A.C. Tribunal to another subject to the parameters in that rules. Therefore, the question as to whether an M.A.C. Tribunal constituted under the provisions of the Motor Vehicles Act is a court within the meaning of Sec. 24 of the C.P.C. is not very relevant now, in view of the explicit provisions framed in the Kerala rules conferring power on the High Court for transferring cases from one bench of the M.A.C. Tribunal to another.

6. Clause (a) of Sec. 7 (1) of the Family Court Courts Act, 1984 mandates that subject to the other provisions of the said Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force, in respect of suits and proceedings of the nature referred to in the Explanation thereto and clause (b) thereof, explicitly mandates that the Family Court shall be deemed, for the purpose exercising such jurisdiction under such law, to be a District Court, or as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Sec.8 of the Family Courts Act, 1984 further mandates that, where a Family Court has been established for any area, then no District Court or any subordinate civil court referred to in sub section (1) of Sec.7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to Sec.7(1). Therefore, going by the reasonings of the Apex Court decision in Bhagwati Devi v. I.S.Goel reported in 1983 A.C.J. 123, as well as the explicit provisions in Sec.7(1) and Sec.8 of the Family Courts Act, 1984, a Family Court which has been established as substitution of the civil court, could be treated as a civil court or court within the meaning of Sec. 24 of the C.P.C. for the purpose effecting of transfer of cases from one Family Court to another. Hence ordinarily, the broad contours of Sec. 24 of the C.P.C. may apply only in cases where the court concerned is a civil court or court within the meaning of Sec. 24 of the C.P.C. It need not necessarily be a civil court stricto sensu and it depends on the context of the law, which regulates creation of such court or Tribunal like the Family Court or M.A.C. Tribunal, etc.

7. Sri.Saigi Jacob Palatty, learned Senior Government Pleader has submitted that it may not be legally permissible to invoke the enabling provisions of Section 24 of the CPC to transfer a case from one Consumer Disputes Redressal Forum to another as the said Forum cannot be said to be a “Court” as understood from Section 24(1) of the CPC. Further Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit that the Consumer Protection Act, 1986 is a comprehensive statutory Act which has been framed by the Parliament to deal with the subject of Consumer Protection and for the establishment of litigative forum for grievance settlement mechanism thereunder and the District Consumer Redressal Fora and State Consumer Redressal Commissions and the National Consumer Disputes Redressal Commission has been created and established by the Parliament at the levels of District, State and the National level. Further it is pointed out by the learned Senior Government Pleader that specific provisions have been engrafted under Section 17A of the Consumer Protection Act, 1986 for dealing with the issues of transfer of the cases. Section 17A of the said Act reads as follows : 

“Sec.17A. Transfer of cases.- On the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the State if the interest of justice so requires.” 

8. Further this Court's attention was also brought to Regulation 26(1) of the Consumer Protection Regulation, 2005 which has been framed and notified under the enabling provisions of Section 30A of the Consumer Protection Act, by the National Consumer Disputes Redressal Commission with the previous sanction of the Central Government. Regulation 26(1) thereof provides as follows : 

“Sec.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 of Civil Procedure, 1908 (5 of 1908): 

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.” 

There are no provisions engrafted in the Consumer Protection Act, 1986 which makes Section 24 of the CPC applicable in the matter of transfer of cases arising under the Consumer Protection Act, 1986.

9. It may be noted that Section 17A of the above said Act has been introduced by the amendment Act 62 of 2002 with effect from 15.03.2003. Even prior to the introduction of Section 17A of the Act, this Court in the judgment reported in Malabar Palace v. The Kerala State Consumer Disputes Redressal Commission [2002 (2) KLT 461] has held that in view of the provisions contained in Section 17 (b), 24(B)(2) read with Section (1)(3) of the said Act the State Commission Forum has power to transfer a case from one District Forum to another. It will be profitable to refer paragraphs 3, 11 and 12 reported in the above cited Malabar Palace's case (supra), which read as follows: 

“3. Sri.K.T. Sankaran, learned Counsel for the petitioner submitted that the State Commission has got administrative control over all the District Forums within its jurisdiction in regard to the matters specified in S. 24B which includes the power to transfer a case in appropriate cases. He took me to the relevant provisions of the Act and also the decisions of this court in Bhargavi Amma v. Ouseph Varkey, 1967 KLT 317, Gopalan Bhavani v. Raghavan Aravindakshan, 1989 (2) KLT 118 and in Cheru Ouseph v. Kunjipathumma, 1981 KLT 495 in support of the above. The Counsel submits that though the provisions of the Code of Civil Procedure in regard to the transfer of cases are not strictly applicable to proceedings under the Act in the absence of any prohibition in the Act the power to transfer cases in appropriate circumstances, must be deemed to inher in the State Commission. He also submitted that such a power is absolutely necessary to ensure justice to the parties.

xx xx xx xx 

11. I will keep the aforesaid legal principles in mind while interpreting the provisions of Ss. 17 and 24B of the Act. The situation requires a close look to the provisions of Ss. 17 and 24B(1)(iii) and (2) of the Act. S. 17 reads as follows: 

"17. Jurisdiction of the State Commission.- Subject to the other provisions of this Act, the State Commission shall have jurisdiction; 

(a) to entertain- 

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees five lakhs, but does not exceed rupees twenty lakhs, and 

(ii) appeals against the orders of any District Forum within the State; and 

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity".

S. 24B(1)(iii) and (2) reads as follows: 

24B. Administrative Control.- (1) The National Commission shall have administrative control over all the State Commissions in the following matter namely:- 

(i) xx 

(ii) xx 

(iii) generally overseeing the functioning of the State Commission or the District Forum to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.

"(2) The State Commission shall have administrative control over all the District Forum within its jurisdiction in all matters referred to in sub-s. (1).” 

S. 17(b) requires consideration. It gives the power to the State Commission to call for the records and pass appropriate orders in any consumer dispute which is pending before any District Forum within the State (omitted irrelevant portions) where it appears to the State Commission that the District Forum has exercised a jurisdiction not vested in it by law, or has acted in exercise of its jurisdiction illegally or with material irregularity. If the President of the District Forum who cannot hear a complaint for the reason which I have already stated as an illustration proceeds with the complaint and takes a decision will it not be a case of exercise of a jurisdiction not vested in it by law or at any rate a case of acting illegally in exercise of its jurisdiction? According to me such a case falls under the latter if not under both the clauses. Deciding a case in gross violation of the principles of natural justice would affect the very jurisdiction of a quasi-judicial tribunal like the District Forum or at any rate it would amount to an illegality. The expressions 'pass appropriate orders' used in S. 17(b) of the Act will take in the power to transfer such a case to another District Forum. In this view of the matter the State Commission has got the power under S. 17(b) of the Act to call for the records of a case pending before the District Forum and to pass orders transferring the same to another Forum within its jurisdiction provided the circumstances warrants.

12. S. 24B(2) of the Act also confers administrative control over District Forum in respect of matters specified under sub-s. (1) to the State Commission. Clause (iii) of sub-s. (1) confers the State Commission the power of generally overseeing the functioning of the District Forum to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial powers. The object and purpose of the Act as already stated is to provide for better protection of the interest of the consumers. If a biased member decides a complaint filed by a consumer will it subserve the better protection of the interest of the consumer? It is doubtful. The transferring of a complaint from one District Forum to another District Forum does not in any manner interfere with the quasi-judicial freedom of the District Forum. On the other hand it will only advance the cause of justice and uphold the prestige of the Forum in a given case. Thus the State Commission in exercise of the powers under S. 24B(2) read with sub-s. (1)(iii) thereof can also transfer a case from one District Forum to another District Forum within its jurisdiction of course subject to the convenience of the parties provided the circumstances justify such transfer.” 

10. Hence it is only to be held in view of the matter that the present petition cannot be entertained on the basis of the enabling provisions under Section 24 of the CPC and the petition is only to be dismissed. It is open for the petitioner to work out his remedy strictly in accordance with law.

With the above observations and directions this Transfer Petition (Civil) will stand dismissed as not maintainable with the above said liberty to the petitioner. Consequently, it is also ordered that the interim order granted until further orders by this Court on I.A. No.1122/2017 in Tr.P.(C) No.246/2017 will stand vacated. Registry will forward a copy of this judgment to the Consumer Disputes Redressal Forum, Alappuzha which is dealing with CC No.42/2015 and the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, for necessary information.