Suresh Jain vs DURGA PRASAD AGRAWAL

-THIS appeal under Section 15 of the Consumer Protection Act, 1986, has been preferred against the order dated 17.8.199 passed by District Forum, Sarguja, Ambikapur in Complaint No. 71/93. As the appeal is time-barred, an application for condonation of delay has also been filed under Section 5 of the Limitation Act.

IT has been stated in the application that the appellant had earlier filed an appeal before the State Commission which was registered as Appeal No. 676/2000 but as the said appeal was not accompanied by any application for condonation of delay, the same was dismissed on 29.11.2000. The reason for filing the earlier appeal belatedly has been stated as that the complainant had filed an execution case under Section 27 and the same was fixed on 17.2.2000 before the Distt. Forum and the appellant had engaged Mr. Jainarayan on his behalf to attend the execution case. IT has been stated in the application that the said Counsel had obtained a certified copy of the order on the aforesaid date but between Bilaspur and Nagpur the coat of the Advocate was stolen together with the certified copy of the order. Thereafter, the Counsel again obtained certified copy of the order on 27.3.2000 and handed it over to the appellant. Particulars of the dates of the events mentioned in the application are not specified and only the year 2000 or April 2000 has been mentioned. IT has further been averred that the delay in filing the appeal as well as inability to file an application under Section 5 was bona fide and may be condoned. An affidavit of May, 2000 has been filed in support of the application for condonation of delay. It has been stated in the affidavit that the deponent was appointed by the appellant Suresh Jain to attend the execution proceedings before the District Forum, Sarguja which was fixed on 17.2.2000 and the deponent attended the said proceedings and filed Vakalatnama and also filed an application for grant of certified copy of the order and order sheet. The said copies were delivered to him. However, while on way from Bilaspur to Nagpur the bag containing aforesaid certified copy and other copies and coat was stolen. Thereafter, the deponent applied for the copies of the order and order sheet afresh on 24.3.2000 and the said copy was handed over by the deponent to the appellant on 27.3.2000.

The respondent has filed a very detailed reply and has vehemently opposed the aforesaid application. It was averred in the reply that appellant has deliberately not brought out the true facts giving rise to delay in filing the appeal. It is also stated in the reply that the complaint No. 71/93 before the District Forum, Sarguja was allowed by order dated 17.8.1999 in favour of the complainant and copy thereof was posted to the appellant by the District Forum on 18.8.1999. It has also been averred by the respondents that execution proceeding was initiated in pursuance of the aforesaid order on 11.1.2000. The said execution case was registered as No. 2 of 2000 but the aforesaid execution case was not fixed on 17.2.2000 as has been alleged by the appellant in his application under Section 5 of the Limitation Act. Respondent has also mentioned various dates on which the aforesaid execution case was listed for hearing before the District Forum. It is further stated that neither the appellant nor his Counsel Vijay Narayan Rao appeared before the District Forum. It has been further averred in the reply that the appellant has been trying to delay the proceedings from the very beginning and he had the knowledge of passing of the order on 1.2.2000 but deliberately delayed to file the appeal within the prescribed limitation period. The first Appeal No. 676/2000 was filed belated by nearly 4 months on 24.7.2000. Under the circumstances, the application deserves to be dismissed.

HEARD the Counsel and perused the records of the present appeal, Complaint No. 71/93 and execution Case No. 2 of 2000. From the perusal of record of the execution case it appears that the case was to fixed on 17.2.2000 before the District Forum as alleged in the application under Section 5 of the Limitation Act. It is also apparent from the said record that no one ever appeared or filed power in the execution case for the appellant. From the record of the District Forum in Complaint No. 71/93 the averments of the respondent appear to be true that copy of the order dated 17.8.1999 was sent to the opposite party on 18.8.2000. The next order sheet dated 24.3.2000 of the complaint reveals that Mr. J.J. Gode Advocate, Nagpur appeared for opposite party No. 1 and filed an application for obtaining certified copies of the order dated 17.8.1999 and complete order sheet. It is also stated in the order sheet dated 24.3.2000 that the copy of the order has already been sent to the party on 18.8.1999. A fresh copy was also given to the party as requested. Under the circumstances it is proved beyond doubt that copy of the impugned order was sent by post to opposite party No. 1 on 18.8.1999. It has not been stated in the application for condonation of delay that the party did not receive the said copy. The first appeal was filed on 24.7.2000 i.e., nearly 11 months after passing of the order and the appellant has failed to state any reasons as to why the appeal was not filed within the time-limit after receipt of copy sent by the District Forum on 18.8.1999?

THE averment made in the application regarding attending the execution proceeding on 17.2.2000 also appears to be erroneous. No Counsel, more so, Mr. Vijay Narayan Rao ever appeared before the District Forum, Sarguja and no power has been filed on record to substantiate the statement made in the application. THE appearance of Mr. J.J. Gode of Nagpur on 24.3.2000 before the District Forum for obtaining certified copy cannot provide good or sufficient cause for condoning the delay as the period of limitation had already lapsed much earlier. In our opinion the appellant has failed to demonstrate that there was any good or sufficient cause for not filing the earlier Appeal No. 676/2000 within limitation. This appeal has been filed on 19.12.2000 and no additional reason has been mentioned in the application for explaining the period after dismissal of earlier appeal and till filing of this appeal. On the contrary the application has been drafted in a very casual manner and even relevant dates have not been specified, blank spaces have been left. As observed earlier also, the affidavit filed in support of the application is of a prior date i.e., May, 2000 and the same cannot be accepted to condone the delay upto 19.12.2000 i.e., the date when this appeal was filed. Delay of each day is to be explained. The appellant has miserably failed to do so.

IN absence of any good or sufficient cause for condoning delay the application deserves to be and is dismissed. Consequently the appeal is also dismissed. The appellant shall bear his own cost of this appeal and shall pay that of the respondent which is quantified at Rs. 1,000/- (one thousand) only. Appeal dismissed.