Vimal Dharmadatta Wankar vs Gita Dadarao Taksande

COUNSEL for the petitioner present. The State Commission passed the following order dated 02.12.2011, which is reproduced here as under: - "Per Mr. S.M. Shembole, Hon''ble Presiding Member

The appellant as well as her counsel are absent Mr. Randive, Advocate for respondent is present. Record reflects that the appellant as well as her counsel are absent since 03.08.2009. Hence, the appeal is dismissed in default.

No order as to cost.

Copy of this order be supplied to the parties".

THIS Revision Petition was filed after the elapse of 1040 days and about 2 years more in case the time of limitation starts w.e.f. 31.08.2009. Petitioner has moved an application for condonation of delay in filing the Revision Petition. The delay has been explained in para Nos. 4 & 5, which are reproduced here as under: - "4. It is submitted that the counsel for the Petitioner has not been informed him about the dismissal of the First Appeal in default. The Petitioner because of some medical reasons was not in a position to attend the court hearing on regular basis. It is also submitted that the petitioner is not staying regularly at her residential place. The Petitioner came to know about the order passed by the Hon''ble State Commission when she received summons from the learned District Consumer Dispute Redressal Forum and Judicial Magistrate First Class in Execution Proceeding No. 18 of 2012 whereby the Hon''ble State Consumer Dispute Redressal Commission dismissed the appeal in default/non -prosecution on the ground that the appellant i.e. Petitioner herein as well as counsel were absent since 3.8.2009.

The Petitioner due to insufficient funds caused some delay in approaching the Hon''ble National Consumer Commission, New Delhi, After overcoming the above, the petitioner, could collect the funds for engaging the counsel in and around the third week of September, 2014. And, with the help of her counsel at Mumbai the Petitioner got the revision petition prepared. The same was forwarded to the Counsel at Delhi in the middle week of December. Thus, the delay cause is bonafide and due to the said reasons"

THE expression "sufficient cause" cannot be erased from Section 5 of the Limitation Act by adopting the liberal approach, which would defeat the purpose of section 5 of the Limitation Act and C.P. Act. There must be some cause which can be termed as sufficient cause for the purpose of delay condonation. I do not find any such ''sufficient cause'' stated in the application for condonation of delay and as such the delay cannot be condoned. First of all comes the question of negligence, inaction and passivity on the part of the Advocate. The name of Advocate did not see the light of the day. His affidavit was also not filed. No action was taken against the Advocate. No complaint before the Bar of Council of India was also moved.

IN Banshi Vs. Lakshmi Narain, 1993 1 RLR 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer''s office and enquired about the case.

IN Jaswant Singh Vs. Assistant Registrar, Co -operative Societies, 2000 126 PunLR 83, it was observed that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed.

IN Bhandari Dass Vs. Sushila, 1997 2 RajLW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor had he sent any letter, was disbelieved while rejecting an application to condone delay.

IT is well settled that Qui facit per alium facit per se, negligence of a litigant''s agent is negligence of the litigant himself and is not sufficient cause for condoning delay.

THE case is hopelessly barred by time. The fault of the advocate or financial constraints are already held to be no grounds for condonation of delay.

THIS view was taken in the authority reported in Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 ), held 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", wherein delay of 150 days was not condoned.

SIMILAR view was taken in R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 1 CutLT 188 , Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361, Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., 2012 1 SCR 1045 and Bikram Dass Vs. Financial Commissioner and others, 1977 AIR(SC) 2221.

THE latest view was taken by the Apex Court in the case "Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. and Ors.", decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.

SIMILAR view was taken by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing and Area Development Board and Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned and again delay of 78 days was not condoned in the case reported in M/s Ambadi Enterprises Ltd. Vs. Smt. Rajalakshmi Subramanian, in Special Leave to Appeal (Civil) No. 19896 of 2013 decided on 12.07.2013.

SINCE the case is hopelessly barred by time, the Revision Petition is dismissed.