Lingaraja Rath, J.:— Heard the learned Counsel for the parties. These two cases raise the same question and hence are disposed of by this common order.
2. The petitioner in both the cases was one of the respondents in C.D Nos. 51 and 84 of 1993 before the A.P State Consumer Dispute Redressal Commission, Hyderabad (hereinafter referred to as ‘the Consumer Forum’). Ex parte order against her having been passed holding her to have guilty of deficiency of service and for payment of compensation, she filed a petition before the State Forum to set aside the ex parte order and to recall the arrest warrant issued against her as the order had been passed without notice to her.
3. Orders were passed by the State Forum in I.A Nos. 1745 and 1746 of 1994 in C.D No. 51 of 1993 and I.A Nos. 1747 and 1748 of 1994 in C.D No. 84 of 1993, which are impugned before us, that an application for setting aside the ex parte order did not lie before the State Forum and that the only remedy available to the petitioner is to appeal to the National Commission.
4. The learned Counsel for the petitioner places reliance on a decision in Dealwell Engineering Works, Secunderabad v. V.V Choudary, Ananthapur (1) 1994 (1) ALT 729 a judgment of a learned single Judge, to persuade us that the High Court has jurisdiction under Article 226 of the Constitution of India to entertain revision applications against the decision of the District Forum under the Consumer Protection Act. While there cannot be any dispute about the existence of the supervisory jurisdiction of this Court on the Forum under the Consumer Protection Act under the provisions of Article 226 of the Constitution of India and hence there would be powers to entertain revisions against decisions of the Forums under the Act, yet it is well known that where provisions of appeal are provided against any order, the revisional jurisdictions can be exercised, if at all, only in extraordinary occasions. The theory of alternative remedy is as much applicable to Article 227 of the Constitution as to the entertainment of applications under Article 226. We hence cannot agree to a blanket proposition as advanced that wherever a decision is rendered by the State or the District Forum under the Consumer Protection Act, this Court would be obliged to entertain application under Article 227 of the Constitution and not desire the parties to approach the appellate forum. The cited case also does not lay down any proposition as is advanced before us and except where the Consumer Protection Act was not applicable and consequently the Forums have acted without jurisdiction in entertaining the applications, the Court could exercise its jurisdiction under Article 227 as a corrective measure. It is true that the Consumer Protection Act or the Rules do not specifically provide for power in the Forums to set aside ex parte orders. But, where an order has been passed without notice to the parties, it is nothing but a nullity in law and an action taken without jurisdiction. The Tribunal would have the implied and ancillary power to set its own record straight by purging itself of orders passed by it which is non est in law. To that extent its power to set aside an ex parte order has to be assumed. The position was explained by the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal (2) 1980 Supp SCC 420 : AIR 1981 SC 606 while dealing with a similar question under the Industrial Disputes Act. So far as the Industrial Tribunals are concerned, the Court held, that in such circumstances the Tribunal has not only the power but also the duty to set aside the ex parte order and to direct the matter to be heard afresh. It was observed:
“It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is well known rule of statutory construction that a Tribunal or Body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.”
5. Either the Court or the Tribunal would have the power to correct its own order when the outcome which is sought to be reversed was the product of a mistake committed by the Court. Such power is inherent in the Court or the Tribunal because of the larger principle that no one should suffer prejudice by the acts of a Court. The power of recall was considered in detail in State of Orissa v. Janamohan Das (3) AIR 1993 Orissa 180 where placing reliance on a decision in A.R Antulay v. R.S Nayak (4) (1988) 2 SCC 602 : AIR 1988 SC 1531 the Court distinguished between the power of recall and that of review and found that every Court has the inherent power to recall its order if by any wrong done by it an injury is caused to a suitor. But the power is to be exercised, if not in rarest of rare cases, only in exceptional cases. For such reasons we entertain the application and reverse the order impugned in the case and remand the matter to the first respondent for fresh adjudication as to whether the grievance raised by the petitioner is justified, calling for setting aside the ex parte order against her.
6. The learned Counsel for the respondent submits before us that a mere wrong decision without anything more does not attract exercise of jurisdiction under Article 227 of the Constitution and the jurisdiction of the High Court under the Article is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”. In support of the same, reliance is placed on a decision in Mohd. Yunus v. Mohd. Mutaqim (5) (1983) 4 SCC 566 : AIR 1984 SC 38. Counsel submits on facts, placing reliance on the averments made in the counter affidavit, that the petitioner had been set ex parte as the registered notice sent to her had been refused by her and that thereafter in the execution proceedings she was again set ex parte because of having refused the notice and thereafter substituted service was taken up on her through paper publication in “ANDHRA JYOTHI” on 6-11-1994. The learned Counsel for the petitioner submits of it being the affidavit for the petitioner that she had never refused notice and was not aware of the publication. The principle decided in Mohd. Yunus v. Mohd. Mutaqim (5 supra) in no way an authority to negate the exercise of the extraordinary jurisdiction of this Court in the present case as being contrary to law. The grievance made by the petitioner is not of a mere wrong decision by the Forum but is one where it has refused to exercise jurisdiction which is vested in it. It being the function of this Court to see that Tribunals function in accordance with law, it becomes its duty when the Tribunal improperly refuses to exercise its jurisdiction and direct the jurisdiction to be properly exercised. The fact whether notice was actually refused by the petitioner or she had any bona fide cause for non-appearance is a matter to be decided by the first respondent on facts. Once such matter is decided, this Court may not exercise jurisdiction if the decision is merely an erroneous one. But at this stage where the Consumer Forum has refused to entertain the application for consideration taking the view that it has no power to do so, this Court would direct the Tribunal to entertain the application and pass orders in accordance with law.
7. The C.R.Ps are accordingly disposed of.
8. No costs.