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Judgment
THIS order shall dispose of above noted applications filed by the Petitioner seeking recall of order dated 09.10.2013, passed by this Commission as well as application seeking condonation of delay of 497 days in filing of recall application.
RESPONDENT No. 2/Complainant had filed a Consumer Complaint in the year 2006 against Petitioner/OP before District Forum, Ahmedabad, on the grounds that he purchased a house from the petitioner and for which petitioner had received a sum of Rs. 60,000/ -. However, the petitioner did not execute the sale deed. The consumer complaint was contested by the petitioner.
DISTRICT Forum allowed the consumer complaint vide order dated 03.09.2010, directing the petitioner to execute the sale deed in respect of the house in favour of respondent No. 2 and to pay him a sum of Rs. 5,000/ - for mental torture and harassment and Rs. 1500/ - towards cost.
BEING aggrieved, petitioner filed appeal before the Gujarat State Commission, which dismissed the same. Thereafter, petitioner has filed present revision petition before this Commission.
ON 09.10.2013, when revision petition was listed before this Commission, neither petitioner nor its counsel were present, though counsel for respondent was present. On that date, as none appeared on behalf of the petitioner in spite of the matter having been passed over twice, present revision petition stands dismissed in default.
NOW petitioner has filed the above applications on 29.05.2015. On the face of it, application seeking recall of order dated 09.10.2013 is hopelessly barred by limitation and as such petitioner has sought condonation of delay of 497 days. Application for recall only deal with the merits of the case except for para 7 of the application, in which it has been stated that present revision petition was not prosecuted diligently by the Advocate for the petitioner and same came to be dismissed in default on 09.10.2013.
AS far as application for condonation of delay is concerned, petitioner has not stated at all, as to on which date it received the copy of order dated 09.10.2013 passed by this Commission. Be that as it may, petitioner has admitted, that it has received communication dated 17.1.2014 from respondent No. 2 along with certified copy of the order dated 09.10.2013.
AS per petitioner''s case, after receiving the certified copy of the order on 17.01.2014, its Estate Department forwarded the communication received from respondent No. 2, to the Assistant Commissioner for obtaining clarification from their Advocate and as such, Estate Department wrote letter to Advocate on 10.04.2014. However, petitioner did not receive any response in spite of several inquiries made from the Advocate. Thereafter, on 29.11.2014 petitioner approached the present Advocate for making appropriate application. However, father of present Advocate died on 24.12.2014 and he lost his father in law on 01.01.2015. Thereafter, Advocate''s wife was admitted in hospital in February, 2015. As a result, present Advocate sent the application to the petitioner in second week of May, 2015. Thereafter, making necessary corrections, present application was filed. Thus, it appears from the above averments made in the application, that Estate Department had taken three months in communicating the order dated 09.10.2013 to its Advocate. Thereafter, petitioner took another seven months to engage a counsel. Above facts clearly shows, that petitioner housing board had been dealing with this litigation in a very casual and careless manner.
THERE is nothing on record to show, that petitioner took any action against its previous counsel at all or against its officials who were pursing this revision in a leisure manner.
BE that as it may, no sufficient explanation has been given for this long delay of 497 days in filing the application for restoration of the petition. Delhi High Court in New Bank of India v. M/s. Marvels (India), : 93 (2001) DLT 558, has held;
"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non -action and want of bona fide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex -parte decree has been able to satisfactorily show sufficient cause for non -appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen."
IN Ram Lal and Ors. v. 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 for consideration; but the scope of the enquiry 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."
IN " R.B. Ramlingam v. R.B. Bhavaneshwari, : 2009 (2) Scale 108 ", Apex Court has 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."
Apex Court in " Anshul Aggarwal v. New Okhla Industrial Development Authority, : IV (2011) CPJ 63 (SC)" laid down 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 Foras."
LASTLY , Hon''ble Supreme Court in Post Master General and others v. Living Media India Ltd. and Another, : (2012) CLT 338(SC) : II (2012) SLT 312 : (2012) 3 Supreme Court Cases 563 has held; "24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
"29. It needs no restatement at our hands that the object for fixing time -limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
Public interest undoubtedly is a paramount consideration in exercising the courts'' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land -losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land -losers . These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land -losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
The Court further observed;
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
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 bona fide 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.
In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs."
THE application for condonation of delay does not contain any sufficient cause and has no legal basis. Gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner. The observations made by the Hon''ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case.
UNDER these circumstances, no sufficient cause is made out for condonation of delay of 497 days. Hence, application for condonation of delay stands dismissed. Consequently, application seeking recall of order dated 09.10.2013, stands dismissed being barred by limitation.
NO order as to cost.