M/S Rajesh Brick Field vs Ram Naresh

VIDE order dated 23.08.2011, the State Commission, Uttar Pradesh, Lucknow, dismissed the appeal in default, filed by M/s.Rajesh Brick Field and Anr. The order passed by the learned State Commission is reproduced hereunder :- "Appeal No. 1595/2010 23.8.2011 The case called out. None is present on behalf of the appellants. The cause-list of date has been shown on Internet. The appellants '' counsel Mr. Rajesh Pathak is not available. Mr. Ram Gopal, learned counsel for the respondent is present. It appears that the appellants are not now interested in proceeding with this appeal. Let it be dismissed in default and for non-prosecution ".

THEREAFTER , the revision petition was filed before this Commission on 30.08.2012, i.e. after a elapse of more than a year. The petitioners have moved an application for condonation of delay. It is submitted that the Petitioners came to know about this case when they got the recovery challan issued by the District Forum to the District Magistrate, Gonda, on 18.04.2012. They searched for Advocate, but could not find him. In this respect, the following averments were made in the application: 4. The revisionist approached to the Advocate for filing the revision before National Commission but they are highly paid fee advocate and he was unable to engage them for tiny matters. He continued to search the advocate to help for the petitioner/ revisionist and get success to engage new and young advocate Mr.D.P. Upadhyay at reasonable fee and he filed the revision petition without any delay. 7. It is further submitted at the cost of repetition, that the delay of 276 days is neither intentional nor deliberate and due to reasons beyond the control of the petitioner ".

The petitioner has failed to name the so-called highly paid fee Advocate. The affidavit of that Advocate also did not see the light of the day. No complaint was filed against that Advocate who appears to have taken high fee but did not care to pursue the matter. Such like stories can be created at any time. This has become a fashion with the litigants to blame the Advocate in order to save their own skin. There should be some evidence in respect of the allegations made against the Advocate. The above said story does not constitute a good ground for condoning the delay. It is also noteworthy that no reason was given by the petitioners for their non-appearance before the State Commission on 23.11.2011. The record also reveals that the opposite party ''s counsel was present before the State Commission. It is surprising to note that the petitioner did not care to know about the fate of his case prior to 23.08.2011, upto April, 2012, when the execution petition was filed against them.

This clearly goes to show inaction, negligence and passivity on the part of the petitioners. The petitioners are supposed to be vigilant and supposed to know the status of their case, from each and every hearing. Under the circumstances, the petition is liable to be dismissed. This view is further emboldened by the following authorities.

IN Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), 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 Foras ".

In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 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. "

IN Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held 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 Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause '' stated in the application and no such interference in the impugned order is called for ". In Banshi Vs. Lakshmi Narain � 1993 (1) R.L.R. 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, especially when the case was regarding deposit of arrears of rent. The statute also prescribes a time bound programme regarding the deposit to be made. In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor he did not send any letter, was disbelieved, while rejecting an application to condone delay.

SEE also Balwant Singh Vs. Jagdish Singh and Ors. (Civil Appeal No. 1166 of 2006), decided on 08.10.2010.

RECENTLY this Commission presided over by Hon ''ble Mr. Justice Ashok Bhan has dismissed the revision petition on the ground of delay and the delay of 104 days was not condoned, in case reference "Mahindra Holidays and Resorts India Ltd. Versus Vasantkumar H. Khandelwal and Anr. " [Revision petition No. 1848 of 2012 decided on 21.05.2012]. The revision petition is, therefore, dismissed on the ground of delay.