Sanjiv Jhaveri vs UNITED INDIA INSURANCE COMPANY LTD

LEARNED counsel for the petitioner present.

THE Registry shows that there is a delay of 119 days but the impugned order dated 18.2.2014 shows that there was a delay of 484 days. To understand this fact, it is necessary to reproduce the order passed by Hon''ble Mr. Justice R. C. Chavan, President, Maharashtra State Commission, which runs as follows: "None present for the appellant even on second call. Adv. Smt. Sneha S. Dwivedi is present on behalf of the Respondent. On perusal of the record, it is evident that Appellant was absent even on previous two dates viz. 17.10.2013 and 18.12.2013. Hence, the appeal stands dismissed for want of prosecution. No order as to costs."

IT , therefore, appears that the petitioner did not appear on 17.10.2013, 18.12.2013 and 18.2.2014. Learned counsel for the petitioner has moved an application for condonation of delay alongwith the revision petition. The delay is explained in paras 3 to 7 of the application for condonation of delay and paras ''C'' and ''D'' of the revision petition, which read as under: "3. That since the order dated 18.02.2014 was passed in absence of the petitioner herein and certified copy of the said order dated 18.02.2014 was dispatched through post to the petition on 18.03.2014 and the same was received by the petitioner herein on 23.03.2014.

That after receiving orders of the Hon''ble State Commission the signed and attested copy of the revision petition alongwith certified copy of the impugned order was dispatched to a lawyer in Delhi for filing in present commission and perusal of same.

That the counsel who was assigned the filing and perusal of the present petition could not file and pursue the matter due to some personal difficulty and same remained idle in office of the counsel.

That since the earlier counsel was not responding to queries of the petitioner, the petitioner asked for return of the case file and same was handed over to the present counsel.

That in view of same there is delay of 165 days in filing the present petition which is neither deliberate nor intentional and if same is condoned no prejudice would be caused to any of the parties.

c. That true facts leading to the said order are that on prevision occasion i.e. 18.12.2013 mother of the advocate for Appellant was not well as she is suffering from number of ailments i.e. malfunction kidneys and low creatinine level. Adv. On record informed the said fact to the Appellant, Appellant agreed to be present himself but unfortunately Appellant reached late by the time the said order came to be passed, however, on 18.02.2014 the Hon''ble Appellate Bench of the said forum resumed on 10.30 a.m., matter was listed at serial No. 6, Adv. on record rushed and was just outside the court wearing her Adv. band and when she entered the court she was informed that it is being dismissed for want of prosecution.

d. That Adv. on record alongwith the Appellant mentioned the said matter before Hon''ble Commission in post lunch session narrating the facts mentioned herein above, however, though Hon''ble Commission considered the unavoidable circumstances but were constrained because of the judgment of Hon''ble Supreme Court in Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Anr. and directed Adv. for Appellant to move appropriate Petition as available in law before this Hon''ble Commission."

Learned counsel for the petitioner has not mentioned the name of the advocate but orally he submits that her name is Ms. Purvi Shah. Her affidavit has not been placed on record. The medical certificate of her mother also did not see the light of the day. Again, it is mentioned that the appellant reached late by the time the said order was passed.

THE petition is conspicuously silent about the dates of 17.10.2013 and 18.12.2013. An attempt has been made to mislead the Commission. The petitioner has not come to the Commission with clean hands. There is no mention of date of 18.12.2013. On 18.12.2013, it is alleged that the mother of the advocate fell sick. The appellant agreed to be present himself but unfortunately appellant reached late by the time, the same order came to be passed. The appellant must have come to know that the next date was fixed for 18.2.2014. It is alleged that the Bench took the matter on 10.30 a.m. and this matter was listed at serial No. 6. It was dismissed in default. The appellant did not appear on that date nor her counsel appeared on that day.

THERE is not even a single iota of evidence, which may go to show that they have appeared before the State Commission on 18.2.2014. Even if the case was dismissed in default in their absence, they should have moved application immediately, to establish their bona fides, clause ''d'' does not mention at what time the appellant had appeared on 18.2.2014. Such like namby -pamby pleas do not impress this Commission at all.

IT is also noteworthy that the petitioner had filed this appeal before the State Commission with an application for condonation of delay, which delay was condoned by the State Commission, subject to payment of Rs.1,000/ - as costs. Alarm bells should have been rung and the appellant or her counsel should have taken every care to appear in the State Commission on time but they did not appear for as many as three dates.

THERE is huge delay of 484 days, which cannot be condoned in view of the Supreme Court authorities in Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 , R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 2 Scale 108; Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361 and Bikram Dass Vs. Financial Commissioner and others, 1977 AIR(SC) 2221 and Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., 2012 STPL(Web) 132 (SC).

THE Apex Court in a recent case i.e. Sanjay Sidgonda Patil vs. Branch Manager, National Insu. Co. Ltd. and Anr., Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013, confirmed the order of the National Commission and refused to condone the delay of 13 days. Likewise, delay of 78 days was not condoned by the Apex Court in the case of M/s Ambadi Enterprise Ltd. vs. Smt. Rajalakshmi Subramanian in SLP No. 19896 of 2013 decided on 12.7.2013. Again delay of 77 days was not condoned in case of Chief Off. Nagpur Hous. and Area Dev. Board and Anr. vs. Gopinath Kawadu Bhagat, SLP No. 33792 of 2013 decided on 19.11.2013.

THE case is hopelessly barred by time. Therefore, the revision petition is hereby dismissed as barred by limitation.