PUBLIC HEALTH AND ENGINEERING DEPARTMENT vs DISTRICT FORUM, CONSUMER PROTECTION, BIKANER

THE only question, with which we are concerned at this stage is whether the appellant has succeeded in making out sufficient cause for not filing the appeal within a period of 30 days. THE complainant-respondent No. 2 submitted a complaint before the District Forum, Bikaner praying that the opposite party-appellant may be directed to release water connections in Shiv Badi, Kuchi Basti. THE District Forum passed the order on 24.7.89 against the opposite-party-appellant Being dissatisfied with the order, appeal was filed on 19.1.90. Office reported that the appeal is barred by four months and 23 days. Notice was issued to the appellant to satisfy the State Commission that the delay caused in presenting the appeal should be condoned. In pursuance of that, Mr. T.R. Singhal, Executive Engineer of the appellant was heard on the question of delay in presenting the appeal. THE opposite-party-appellant submitted an application under proviso to Sec. 15 of the Act for condonation of delay. THE application was supported by the affidavit of Arun Kumar Pandey, Assistant Engineer. THE period prescribed for filing the appeal against the order made by the District Forum is 30 days from the date of the other.

THE application for certified copy of the order was made on 27.7.89; the date fixed for issuance of the copy was 29.7.89; the copy was ready on 29.7.89 and the copy was delivered on 31.7.89. As stated above, the appeal was filed on 19.1.90. Proviso to Sec. 15 of the Consumer Protection Act, 1986 ("the Act" herein), reads as under:- "Provided that the State Commission may entertain appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period."

The above proviso to Sec. 15 of the Act is similar to Sec. 5 of the Limitation Act, 1963. It is well settled that the existence of sufficient cause is a condition precedent for the exercise of the discretion under the proviso to Sec. 15 of the Act. The expression "sufficient cause" has been held to mean a cause which is beyond the control of the party invoking the aid of the proviso. A cause for delay which, by due care and attention, the party could avoid, cannot be sufficient cause. It has authoritatively been laid down while considering Sec. 5 of the Limitation Act, 1963, that the test whether or not a cause is sufficient is to see whether it could have been avoided by the party by exercise of due care and attention; in other words, whether it is a bona fide cause inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not done with due care and attention. In the application, which has been filed under the proviso to Sec. 15 of the Act, it has been stated that after the receipt of the certified copy, the record was put up before the Executive Engineer, P.H.E.D., City Division, Bikaner, who submitted it to the Chief Engineer, P.H.E.D., Govt. of Rajasthan, Jaipur on 9.9.89 for granting sanction for filing appeal. The Law Department informed on 6.12.89 that permission has been granted for filing the appeal. Thereafter, officer-in-charge was appointed and appeal has got prepared. The appeal was filed on 19.1.90.

We have carefully looked into the facts stated in paras 1 and 2 of the application. There is delay of 4 months and 23 days, as reported by the office, in presenting the appeal. Having scrutinised the contents of paras 1 and 2 of the application, it can not be said that the opposite party-appellant, claiming the indulgence, has been reasonable diligent in prosecuting the appeal. Copy of the order was received on 31.7.89. The Executive Engineer submitted it to the Chief Engineer on 9.9.89, i.e. 1 month and 9 days after the receipt of the copy. The Law Department informed that permission has been accorded for filing the appeal on 6.12.89. Thereafter, officer-in-charge was appointed and the appeal was prepared by the Additional Govt. Advocate at Jaipur. After 6.12.89, it took one month and thirty days for getting the appeal prepared and filing it. In these circumstances, it cannot be said that the opposite party-appellant has made out any cause what to say of sufficient cause, for filing the appeal within the period of limitation. It may be re-called that the order was pronounced on 24.7.89. Copy was taken delivery of on 31.7.89, though the date fixed for the issuance of the copy was 29.7.89 and it was ready on that day. There was reasonable time left after obtaining the copy of the order appealed against, as the period prescribed for filing the appeal is 30 days and the time requisite for obtaining the certified copy was to be excluded.

WE are not satisfied that the opposite party-appellant has succeeded in making out sufficient cause for not filing the appeal within the prescribed time so as to entitle it to the extension of period of limitation under proviso to Sec. 15 of the Act. The application under proviso to Sec. 15 of the Act is dismissed.

IF follows, therefore, that the appeal is barred by time and, therefore, it has to be rejected. The appeal is consequently rejected. Appeal rejected.