Executive Engineer Electricity Distribution Division -I , Sub -Divisional Officer , U P Power Corporation Ltd vs Mukut Bihari Srivastava

THE State Commission dismissed the appeal because it was delayed by 750 days. The Opposite Party No.1, Distribution Division, Unnao, and its remaining functionaries which are arrayed as OPs 2 & 3 were proceeded against ex -parte before the District Forum. However, the OPs were aware of the pendency of this complaint case No. 184 of 2009 and as is apparent from the order passed on 02.11.2011 by the District Forum. The order dated 02.011.2011 goes to show that petitioners/OPs had filed objection petition before the Executing Court. The complainant had part performed the decree before 02.11.2011. Consequently, the appeal was dismissed on the ground of delay. The State Commission placed reliance on Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, 2013 1 CPJ 460 , UP Avas Evam Vikas Parishad Vs. Brij Kishore Pandy, 2009 4 CPJ 217, Delhi Development Authority Vs. V.P. Narayanan, 2011 4 CPJ 155, Anshul Aggarwal Vs. NOIDA, 2011 4 CPJ 63, Civil Appeal No. 2474 -2475 of 2012, titled Chief Post Master General & Ors., Vs. Living Media India Ltd. & Anr., and dismissed the appeal.

THE State Commission also made the following observations : - "The appellants have moved an application for condonation of delay also in which they have tried to explain the delay in filing the appeal. Admittedly the impugned ex -parte judgment was delivered on 29.03.2010. The appellants were fully aware of the same and they filed an objection in execution case No.96 of 2010. They also made part performance of the decree prior to them, as is clear from the order dated 02.11.2011, quoted hereinabove. Thus, the appeal is barred by limitation by more than 750 days. Now, it is to be seen whether this inordinate delay can be condoned or not in the light of explanation given by them -.

THE delay in the State Commission order should have rung the alarm bells, but it had no effect upon the petitioners / opposite parties. The revision petition filed by them is further delayed by 57 days''. In the application for condonation of delay, it is explained that the petitioners were communicated of the impugned order on 04.05.2014 and copy of the said order was received by the petitioner No.1 in its office on 20.05.2014. The 16 days'' delay has not been explained. The office sent the order to the Head Office on 10.06.2014. Again, the delay of 20 days'' was not explained. The file was sent to the legal department on 20.06.2014. There is no explanation, why, the Department sat over the file for 10 days. In the second week of July, 2014, the Head Office decided to file the revision petition. There is delay of 30 -35 days which was not explained. In the third week of July, 2014, the pairokar met with the counsel in New Delhi who asked them to produce the entire file which was provided in mid -August, 2014. No reason has been given for this delay. On 09.09.2014, the affidavit of petitioner No.1 was sworn in. Thereafter, this revision petition was filed before this Commission on 10.09.2014. The day -to -day delay has not been explained. It must be borne in mind that the expression "sufficient cause", cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act and C.P. Act, 1986. The time for disposal of a complaint case and time for disposal of appeals and revision petitions are fixed by the C.P.Act, 1986. In such a huge delay, the discretion is not to be used in favour of the petitioner. The following authorities go to dovetail with this case.

IN Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 , it has been held that 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 Fora. There was delay of 150 days only and this case pertains to C.P. Act, itself.

IN R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 2 Scale 108, it has been observed that "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".

IN Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."

SIMILAR view was taken in Banshi Vs. Lakshmi Narain, 1993 1 RLR 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer''s office and enquired about the case.

IN a recent authority in the Office of the Chief Post Master General and ors. Vs. Living Media India Ltd. and Anr., decided on 24.02.2012, by the Apex Court, in Civil Appeal No. 2474 -2475 of 2012 arising out of SLP(C) No. 7595 -96 of 2011, it was held that : - "13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red -tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.

SEE also Balwant Singh Vs. Jagdish Singh and Ors. (Civil Appeal No. 1166 of 2006), decided on 08.10.2010, , in which it was held; "The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P.Ramanatha Aiyar, 3rd Edition, 2005]".

THE Hon''ble Apex Court in a recent case i.e. Sanjay Sidgonda Patil vs. Branch Manager, National Insurance Co. Ltd. and Anr., Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013, confirmed the order of the National Commission and refused to condone the delay of 13 days.

LIKEWISE , delay of 78 days'' was not condoned by the Apex Court in the case of M/s Ambadi Enterprise Ltd. vs. Smt. Rajalakshmi Subramanian in SLP No. 19896 of 2013 decided on 12.7.2013.

AGAIN , delay of 77 days was not condoned in case Chief Off. Nagpur Hous. and Area Dev. Boa and Anr. vs. Gopinath Kawadu Bhagat, SLP No. 33792 of 2013 decided on 19.11.2013.

IT is thus clear that as a matter of fact, there is delay of 750 days in filing the appeal before the State Commission and delay of 57 days'' in filing the revision petition before this Commission, which has not been explained. Justice delayed is not only justice denied. It is also justice circumvented, justice mocked and the system of justice undermined. The case is hopelessly barred by time. The revision petition is, hereby dismissed.