Opposite Party (OP) does not automatically guarantee a judgment in your favour, but it does allow the court to draw an adverse inferenceand accept your evidence as unrebutted. Since OP 2 has remained absent and failed to file a response, they have forfeited their right to contest the facts you have presented

While they may still participate in oral arguments, they cannot introduce new facts or evidence to counter your claims.

If any opposite party to a suit remains absent, they will be set ex parte. If the decision goes against them, they will suffer. But, the plaintiff or petitioner cannot seek to set aside the adverse order on the ground that one of the opposite parties did not respond to the proceedings. You have no case to argue that way.

You don’t need such judgements. If he doesn’t contest still the final order is executable against him 

Mere absence of OP does NOT automatically guarantee a decree in your favour. However, it significantly strengthens your case if your evidence is unrebutted 

In a consumer grievances redressal case if OP fails to appear or file written version, then the complainant’s evidence remains unchallenged and can be accepted as true if it is credible and supported by documents. You can keep this as a strong point in your appeal.

New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. (SC, Constitution Bench).

Consumer forum passed order against OP who never appeared

Held that complainant’s case stood unrebutted and hence accepted.

No, an order does not go against OP 2 only because they stayed absent. In consumer matters, the case can proceed ex parte, but you still have to prove your claim with record and evidence. Section 38 of the Consumer Protection Act allows decision on the complainant’s evidence if the opposite party does not respond.

Practical step: ask your lawyer to press that the State Commission should draw an adverse view against OP 2’s non-appearance, but decide the case on your evidence and merits.

Under the Consumer Protection Act, 1986 (as applicable to your proceedings) and its successor, the Consumer Protection Act, 2019, it is provided that an opposite party is required to file its written version within the prescribed statutory period (30 days, extendable by a maximum of 15 days). Upon failure to do so, the right of the opposite party to file its defence stands closed.

In such circumstances, where an opposite party neither appears nor files a written statement despite due service, the Consumer Forum is empowered to proceed ex parte. The legal consequence of this is that the averments made by the complainant, insofar as they are supported by evidence, remain unrebutted.

It is a settled principle of adjudication that where evidence is not challenged or rebutted, the same can be accepted if it is credible and sufficient to establish the claim. Additionally, non-appearance of a party despite service permits the adjudicating authority to draw an adverse inference against such party.

Therefore, your argument before the State Commission may be framed as follows:

• Opposite Party No. 2 was duly served but failed to appear or file its written version within the statutory period prescribed under the Consumer Protection law.
• Consequently, its right to contest stood forfeited, and the proceedings against it are ex parte in nature.
• The evidence led by the complainant against Opposite Party No. 2 remains unrebutted and unchallenged.
• In law, such unrebutted evidence ought to be accepted if it establishes deficiency or liability.
• The dismissal of the complaint, despite absence of any defence from Opposite Party No. 2, is contrary to the scheme and intent of the statute.

In conclusion, while relief is not granted merely as a penalty for non-appearance, the statutory framework clearly supports that failure to contest materially strengthens the complainant’s case, and the forum is expected to adjudicate on the basis of unrebutted evidence.

dear  client

In consumer law, simply not appearing or not contesting from an Opposite Party (OP) does not automatically give the complainant an ex-parte decision and is not sufficient to warrant an adverse inference against that OP. However, this does create a basis for the forum to proceed ex parte under Section 38 (Consumer Protection Act 2019). The complainant must still prove a prima facie case with evidence.

In Topline Shoes Ltd. v. Corporation Bank (2002), the National Consumer Disputes Redressal Commission (NCDRC) stated that while procedures are meant to provide time frames to be followed, if the OP has not filed their response, they can lose their ability to file a version of the dispute. The NCDRC also said in New India Assurance Co. Ltd. v. R. Srinivasan that when an OP fails to appear, the forum can allow for what has been provided for evidence independently, or with adverse inferences against them.

Furthermore, in Haryana Urban Development Authority v. Raje Ram, it was found that the complainant's evidence can be used because of the OP's lack of evidence when the OP did not appear.

So, this would support your argument for OP 2's continuous lack of appearance as evidence of an adverse inference and to strengthen your case with the unchallenged complaint. However, success would still depend on the merits of the original case as well as on the proof that you provide to the court.

if you have any queyr please feel free to contact us 

Sir/Madam, 

Since OP2 did not contest the case, he might be proceeded ex-parte and further, the case will be decided on its own merits. 

Yes, there are authoritative judgments you can cite. The Supreme Court in Kaushik Narsinhbhai Patel v. M/s. S.J.R. Prime Corporation Pvt. Ltd. (2024 INSC 542) held that when a party forfeits its right to file a written statement, it is barred from indirectly introducing its case or leading evidence in its defense . The non-contesting party (OP 2) can only be permitted to cross-examine your witnesses and argue legal questions, but cannot present any factual defense or evidence . This effectively means the Forum may proceed on the unchallenged allegations against the absent OP. You should bring this judgment to the State Commission’s attention, arguing that since OP 2 failed to contest despite service, your case should be treated as undisputed against them.