Devi Prasad Pandey vs Rang Bihari Sinha

1. PRESENT revision petition has been preferred against impugned order dated 13.08.2012, passed by Uttar Pradesh, State Consumer Disputes Redressal Commission, Lucknow(for short, ''State Commission '')in Appeal No.3140 of 2003.

BRIEF facts are that Respondent No.1/Complainant had invested sum of Rs.60,000/ - each, in two FDRs having purchased them from Petitioner as well as Respondent No.2/Opposite Parties. Maturity dates of these FDRs was 12.3.1998 and 28.4.1998, respectively. On maturity, when respondent no. 1 claimed the amount, the opposite parties refused to pay the amount. Thus, alleging deficiency on the part of the petitioner as well as respondent no. 1, a consumer complaint was filed before the District consumer Disputes Redressal Forum, Balia, (for short, ''District Forum ''). Before the District Forum, petitioner as well as respondent no.1, did not appear despite service and were proceeded ex parte.

DISTRICT Forum vide its order dated 4.5.2001, allowed the complaint.

BEING aggrieved, petitioner alone filed Appeal (No.3140 of 2003) before the State Commission. Since, none appeared on behalf of the petitioner before the State Commission on 13.08.2012, its appeal was dismissed in default for non -prosecution, vide the impugned order.

NOW petitioner has filed the present revision challenging the impugned order. Alongwith it, an application seeking condonation of delay of 1 year 2 months and 22 days has also been filed.

WE have heard the learned counsel for the petitioner and gone through the record. Maingrounds on which condonation of delay has been sought, have been stated in the affidavit filed by the petitioner, which read as under; ''''2. That initially Shri D.M. Shukla was the counsel for the revisionist before the Hon ''ble State Commission, Lucknow who after 25.11.2003 never informed the revisionist the exact position of the case. It is submitted on being asked about the status of the case/ appeal he always misrepresented. Sometimes wrong date was informed and sometimes it was informed that presently he has no date but shortly he would be let know the date and status of the case.

That when the revisionist had doubt in the mind he submitted the application for inspection of the appeal, it was revealed that the appeal has already been dismissed for default for non -prosecution of the case.

That thereafter the appellant contacted Shri. R. K. Mishra, Advocate for obtaining certified copy of order and for recall of order dated 13.08.2012.

That the application for certified copy of judgment and order dated 13.08.2012 was applied on 27.11.2013.

That the certified copy of judgment and order dated 13.08.2012 was obtained on 27.11.2013.

That it is relevant to submit here that there was a procedure initiated by the Hon ''ble Court that one who wants to argue the case he would have to serve the notice prior to the date of listing, but none of the parties served such type of notice upon either of the parties. Had this procedure would have been adopted, then the instant appeal would not have been dismissed.

That the revisionist -appellant was always kept in dark about the date and status of the case ''''.

AS per the above grounds, the petitioner had shifted the entire burden upon its earlier counsel, Mr.D.M. Shukla. There is nothing on record to show that petitioner had taken any action against this Advocate due to whose fault, appeal was dismissed in default. No legal notice etc. against the said advocate had seen the light of the day. It has become very easy and convenient for a litigant to shift the entire blame on its previous counsel. It is the duty of every litigant to post himself regarding each date of hearing. It clearly shows that petitioner himself was negligent and inactive. It has become a usual practice with the litigants, to put the entire blame on their counsel without any rhyme and reason.

PETITIONER has nowhere specifically stated as to on which date and how he got the knowledge of passing of the impugned order, when as per petitioner ''s own case his counsel did not inform him about any date in the case. However, as per application for condonation of delay it is petitioner ''s case that he had doubt in mind, hence he submitted an application for inspection of the appeal where it was revealed that appeal had already been dismissed for non -prosecution in default. Thereafter, he applied for certified copy of the impugned order on 27.11.2013. This story put forward by the petitioner is totally concocted one, because as per certified copy of the impugned order placed on record by the petitioner himself, the free copy of the impugned order was supplied to him on 22.08.2012. Thus, there is a long delay of more than 1 year and 2 months.

IT is well settled that ''sufficient cause '' with regard to condonation of delay in each case, is a question of fact.

APEX Courtin, AnshulAggarwal Vs. New Okhla Industrial Development Authority, IV (2011)CPJ 63(SC) has held while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act,1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are high belated are entertained. Relevant observations are as under; ''''It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act,1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras ''''.

Inram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,it has been observed; ''''It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall forconsideration; but the scope of the enquiry while exercising the discretionarypower after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant ''''.

IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, the Supreme Court observed; ''''We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition ''''.

IT is well settled that Qui facit per alium facit per se, negligence of a litigant ''s agent is negligence of the litigant himself and is not sufficient cause for condoning the delay. See M/s Chawala & Co. vs. Felicity Rodrigues, 1971 ACJ 92. Thus, no sufficient grounds are made out for condoning the long delay of 1 year 2 months and 22 days. Even otherwise, record of this case speaks volume about conduct of the petitioner who had chosen not to appear before the District Forum and as such was rightly proceeded ex parte. Even thereafter, petitioner had not become wiser. He had conducted the appeal before the State Commission also in a very casual, careless and negligent manner. That is why, his appeal was dismissed in default.

BE that as it may, even while filing the present revision petition, petitioner has again acted in a negligent and careless manner. It appears that the only intention of petitioner is just not to comply with the award passed by the District Forum and to deprive the complainant, the fruits of award.

HENCE , application for condonation of delay being not maintainable is hereby dismissed. Consequently, the present petition being barred by limitation, stand dismissed with cost of Rs.5,000/ -(Rupees Five Thousand Only). Petitioner is directed to deposit the cost by way of demand draft in the name of ''''Consumer Legal Aid Account '''' within four weeks from today.

IN case, petitioner fails to deposit the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 09.05.2014 for compliance.