Ramlal Pandey Prop, M/S. Maa Sharda Borewell vs Shyam Narayan Dwivedi

THIS revision petition which challenges the order of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal passed on 26.10.2013 in Appeal No.983 of 2011 has been filed by the petitioners who were OPs 1 & 2 before the District Forum. Along with the revision petition, an application has been filed by the petitioners for condonation of delay which is of 72 days according to the petitioners and 74 days as per the report of the Registry.

WE have heard learned Shri C.M. Shukla, Advocate for the petitioners on the application of condonation of delay. Learned counsel has submitted that the petitioners being residents of Rewa which is about 600 kilometers from Bhopal which is the seat of the State Commission could not appear personally on every date of hearing and as such they relied on their counsel who had been engaged by them to take care of the appeal filed by the petitioners before the State Commission. However, the counsel neither appeared on the dates fixed by the Commission nor did he give the appropriate information to the petitioners about the status of the appeal and as such in spite of the dismissal of the appeal vide impugned order passed by the State Commission on 26.10.2013, the petitioners could not come to know about it and got the information belatedly on 22.3.2014 after which even though they took immediate steps to file the revision petition, the delay in question was caused which was neither intentional nor deliberate. Learned counsel, therefore, submitted that for reasons given in the application, the delay in filing the revision petition may be condoned and the revision petition considered on merits since petitioners have a good case in their favour.

WE have considered the submissions of the learned counsel and also perused the application filed by the petitioners for condonation of the delay. Petitioners have given reasons in support of their request for condonation of delay and the same are contained in paras 3 to 8. The same are reproduced thus: - "3. That since the distance between Rewa and Bhopal is about 600 kilometers and it was not possible and feasible for the Revisionist to appear personally on every date of hearing, from time to time and regularly, the Revisionist have been enquiring about the status and progress of their case from the Counsel and the Counsel has been informing the next date and was assuring that he is taking care of the matter. That due to such information provided by the Counsel, the Revisionist have been under bonafide belief that the case is being properly attended and taken care of by the Counsel.

That since the Counsel did not appear and has been giving wrong information to the Revisionist and no one was present before the Hon ''ble State Commission, vide order dated 26.10.2013, the Hon ''ble State Commission was pleased to dismiss the said Appeal in default. That even thereafter, the Appellant did not receive any Order from the State Commission. Further since the Counsel also informed about the next date and pendency of Appeal, the Revisionist have been under bonafide belief that the Appeal is pending adjudication before the Hon ''ble Commission.

That on receipt of Notice in the Execution proceeding, the Revisionist were shocked and asked the Counsel but he did not give any satisfactory reply and accordingly, the Revisionist enquired the record and on 22.3.2014 learnt about the Order dated 26.10.2013. That immediately, the Revisionist also got applied Certified Copy of the said Order.

That as per the record, the Certified copy of the impugned order, was sent to the revisionist on 8.11.2013 and it ought to have been served on or about 10.11.2013 and the revision petition ought to have been filed on or before 9.2.2014. That since no copy of the impugned order was received from the Hon ''ble State Commission and the revisionist learnt about the impugned order only on 22.3.2014, the revision petition could not be filed within the statutory period of limitation.

That immediately on receipt of the certified copy of the impugned order, the present revision is being filed and thus has resulted delay of about 72 days in filing the revision. The revisionist submit that the said delay is neither intentional nor deliberate as they did not receive the Certified Copy of the impugned order and further the counsel did not inform them about dismissal of the Appeal. It is submitted that since the revisionist learnt about the dismissal of appeal only on 22.3.2014, the revision is being filed at the earliest and without any unnecessary delay.

The revisionist submit that the delay in filing the revision is due to unfortunate reasons and circumstances beyond the control of the revisionist as their counsel has indulged into negligence resulting into dismissal of the appeal in default and thereafter not informing the revisionist and giving wrong information. That the revisionists have already filed a complaint against the counsel. That all such facts show that the revisionists have not been negligence in pursuing their appeal and the delay is not on their part and is under bonafide circumstances."

The petitioners have tried to put the entire blame for the delay on their counsel. However, the details in respect of the counsel engaged by them and also as to when they enquired about the status of their appeal from their counsel have not been given. It is seen that the appeal was filed by the petitioners sometime during the year 2011 and the impugned order was passed on 26.10.2013. Endorsement on the copy of the impugned order shows that the first copy of the impugned order was issued to the petitioners on 8.11.2013. However, the petitioners have flatly denied the receipt of this order by post and have simply mentioned that they learnt about the impugned order only on 22.3.2014 after receipt of the notice in the Execution proceedings. Here again, it is not specified that on which date the petitioners received the notice in the Execution proceedings. No documents have been produced by the petitioners before us in support of their claim about their knowledge about this case on 22.3.2014. It appears that the petitioners have not pursued their case with care and due diligence. The explanation offered by them in support of their application for condonation of delay of 72 days is highly vague and general which cannot be regarded as sufficient cause to justify condonation of the delay in question.

IT is well known that specific periods have been prescribed for filing of appeal and revision petition under the law to ensure that the fruits of the award or decree are not unduly delayed to the successful litigant. It is, therefore, absolutely necessary that cogent explanation must be given in support of each request for condonation of delay. Even then, condonation cannot be taken for granted and each case has to be decided on its own merits keeping in view the peculiar facts and circumstances of the case. Delhi High Court in New Bank of India Vs. 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 bonafide 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 guide -lines 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. Vs. 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 Vs. 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 vs. 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."

AS stated above, the present application for condonation of delay is absolutely vague and the same has been filed without proper justification to support it. Under these circumstances, we find that no sufficient case is made out for condonation of delay and hence the application stands dismissed. Consequently, the revision petition filed by the petitioners also stands dismissed on the ground of delay.

EVEN otherwise, we do not find any merit in this petition challenging the impugned order. The impugned order reads thus: - "26.10.13 None for the appellant. Shri S.P. Tiwari, learned counsel for the respondent. None was present for the appellant on 7.1.2012, 28.4.2012, 1.9.2012, 2.2.2013 and 6.7.2013. The continued absence of the appellant shows that the appellant is not interested in pursuing this appeal. The appeal is dismissed for want of prosecution."

IT is clear from the aforesaid order that the petitioners have been negligent in conducting their case throughout. It appears that after filing their appeal in the year 2011 they did not take any care whatsoever to pursue the matter which resulted in their absence before the State Commission on five consecutive dates over a period of more than one and a half years. Here also, no fault could be found with the impugned order so as to give any relief to the petitioners.

IN view of the above, revision is dismissed but with no order as to costs.