RAJASTHAN STATE ELECTRICITY BOARD vs NOPA RAM

A common order was passed in Complaint Cases No. 33/91 to 41/91 against the appellants by the District Forum, Nagaur on 25.7.92. By the impugned order some directions were given against the opposite parties. Separate appeals have been filed arising out of the orders passed in aforesaid nine complaints. This appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act") has been filed against the order passed in Complaint Case No. 40/91. The appeal was filed on 28.10.92 against the order dated 25.7.92.

OFFICE has reported that the appeal is barred by 61 days. This is not disputed by the learned Counsel appearing for the appellants. An application for condonation of delay in presenting the appeal supported by affidavit of Shri B.M. Chachan AEN (O&M) was submitted. We have heard Mr. R.K. Sharma learned Counsel for the appellants on the question of limitation in presenting the appeal and have carefully considered the application and the affidavit in support thereof. The only question at this stage is whether the appellants have shown sufficient cause for presenting the appeal after 61 days of the expiry of the period of limitation. Proviso to Sec. 15 of the Act is as follows:- "Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it with that period."

Proviso to Sec. 15 of the Act is parimateria with Sec. 5 of the Limitation Act, 1963. The two expressions which are common in both the provisions are ''satisfied'' and ''sufficient cause''. We are to determine whether from the facts stated in the application for condonation of delay, the appellants have succeeded in making out sufficient cause so as to excuse the delay caused in presenting the appeal. The application for obtaining the certified copy of the order appealed against was submitted on 7.8.92. The certified copy was obtained on 10.8.92. There was ample time left for filing the appeal after obtaining the certified copy of the order appealed against. It has been stated by the appellants that the officer in-charge who has given the affidavit in support of the application under Sec. 5 of the Limitation Act that he contacted the concerned Counsel, Shri Sita Ram Mathur, who gave the opinion that the case for filing the appeal is not made out. To use the words used in the application" SAMBANDHIT ADHIVAKTA SHREE SITARAM MATHUR NEI APPEAL BAVAT MAMLA NE HONEI KE KARAN KOEI VIDHI RAI NAHI DE..

The OIC thereafter informed the superior officers about this and they told the OIC to implement the order passed by the District Forum. The record was sent to the Legal Department of R.S.E.B. in regard to actual facts. It has not been stated as to when the record was sent to the Legal Department as mentioned in para 3 of the application. It was stated that the Legal Department directed the OIC to file appeal for which the order was issued on 29.9.92. Having come to know about this order the OIC after Dussehra holidays contacted the Counsel on 7.10.92 and got the appeal prepared and there after the appeal was filed. It is not in dispute that the certified copy of the order appealed against was obtained on 10.8.92. Time spent in obtaining the certified copy was four days. The opposite parties could file appeal within 34 days (30 + 4) from the date of the order which is 25.7.92. Thirty-four days time expired on 28.8.92. Thus there were 18 days available to the opposite parties-appellants for filing the appeal as certified copy was obtained on 10.8.92. From 28.8.92 to 29.9.92 which is a period more than a month, no explanation whatsoever mentioning necessary details for explaining each day''s delay has been given by the appellants except that after obtaining the opinion of the Counsel, Shri Sita Ram Mathur the OIC informed the superior officers who told him to implement the order and thereafter the record was sent to the Legal Department informing about the actual facts. It was after one month the Legal Department gave the opinion that the appeal should be filed. The matter does not end here. As per the version made out by the opposite parties-appellants in the application, the OIC contacted the Counsel for filing the appeal on 7.10.92 and according to the case set up by the opposite parties it took about 21 days as the appeal was filed on 28.10.92. From the above facts which emerge from the application it is clear from 28.8.92 to 28.10.92 there is a delay of about 61 days. It was for the appellants to explain each day''s delay after the expiry of the period of limitation. It was held in AIR 1962 SC 361 as follows:- "The context seems to suggest that "With in such period" means within the period which ends with the last date of limitation prescribed. In other words, in all cases falling under Sec. 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed . That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made there after day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed"

Thereafter these very principles were reiterated by the Apex Court of the country in AIR 1977 SC 2221: "Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large majority of case-law has grown around Sec. 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his right must explain every day''s delay."

A heavy burden lay on the appellants to explain the delay of 61 days in presenting the appeal. To say the least the averments made in paras 3, 4 & 5 of the application are vague and leave much to be desired. The appellants cannot be said to have acted with due care and attention. The same view was taken in AIR 1981 SC 733. It may be stated that the appellants-Board does not stand on a different footing than a private litigant as held in AIR 1972 SC 7. From the discussion made hereinabove it follows that the appellants have not been successful in making out sufficient cause so as to excuse the delay of 61 days after the period of limitation in presenting the appeal.

AS no sufficient cause has been made out, the application for condonation of delay is dismissed. It inevitably follows that the appeal has to be rejected as barred by time. It is consequently rejected. Appeal rejected as barred by time.