VINOD KUMAR PATEL vs Sambit Kumar Das

THE State Commission dismissed the appeal filed by the respondent, Sh. Vinod Kumar Patel, only on the ground that there was inordinate delay of 8 months and 19 days in preferring the appeal as against 30 days. Aggrieved by that order the present revision petition has been filed.

WE have heard the learned Counsel for the petitioner at the time of admission of this case. Although he has not filed the application for condonation of delay which was moved before the State Commission, yet, the same is apparent from the order of the State Commission. The stand taken by the petitioner is reproduced below: "His Counsel remained busy in his usual business, for which he had to move throughout the State of Orissa. The petitioner had deposed faith in that Advocate. He further could not conduct the Counsel, nor did the Counsel inform him about the date of adjournment of the said complaint case. It also transpired that his Advocate has not filed the written statement before the District Forum. The Counsel did not intimate about the result of the said complaint to the petitioner. He came to know about the proceedings when non-bailable Warrants were issued against him. "

The judgment of the learned State Commission also goes to reveal that Vinod Kumar Patel received notice from the Counsel on 2.6.2011 wherein he had been informed that the case had been finally disposed of by an ex parte order on 30.3.2011. An application under Section 151 of CPC read with Section 5 of the Limitation Act, for condonation of delay in filing of Appeal was moved wherein the above said facts were mentioned.

WE have heard Counsel for the petitioner. He reiterated the above said facts in support of his case. We are not impressed by these submissions. It is apparent that the petitioner was aware of all the proceedings as back as on 2.6.2011. The explanation given by him for condonation of delay does not in any way constitute the sufficient cause as described in Section 5 of the Limitation Act. It goes to prove negligence, inaction and passivity on the part of the petitioner. It is the duty of the litigant to keep himself informed about the day-to-day proceedings. The litigants are not supposed to depend merely on their Advocate for a long period of 8/9 months. No fault can lie at the doors of the Advocate. On the contrary, it appears that Sh. Sambit Kumar Das informed him by giving a notice dated 2.6.2011, wherein, the then prevalent position of the proceedings were informed.

AGAIN no action was taken against the Advocate. No fault of the Advocate was pointed out. No application/complaint with the Bar Council of India was filed. No affidavit of the concerned Advocate was produced. This has become a fashion in this country, to blame the Advocate, in order to hide litigant ''s own negligence. Making the allegations against the Advocate in his absence, is otherwise not proper. This view is further emboldened with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been 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. "

IN R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)=I (2009) SLT 701, it has been observed that, "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 ".

IN Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 SC 361, it has been observed that, "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 Section 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 inquiry 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 Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal v. Ganpat Vithalroa Gavare, 2007 (1) Mh.LJ 807, it was held that the expression ''sufficient cause '' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause '' stated in the application and no such interference in the impugned order is called for.

IN Banshi v. 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, especially when the case was regarding deposit of arrears of rent. The statute also prescribes a time bound programme regarding the deposit to be made.

IN Jaswant Singh v. Assistant Registrar, Co-operative Societies, 2000 (3) PLR 83, it was laid down 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 v. Sushila, 1997 (2) RLW 845, it was held that accusing the lawyer that he did not inform the about the progress of the case nor has he did 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. [See M/s. Chawala & Co.v. Felicity Rodrigues, 1971 ACJ 92].

IN Delhi Development Authority v. Ramesh Kumar, 61 (1996) DLT 99 (DB)=1996 (2) CCC 150 (Del.), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation liable to be dismissed. In Victor Albuquerque v. Saraswat Co-operation Bank Ltd., I (1999) BC 93=AIR 1988 Bom. 346, it was held that where the facts showing clear negligence of party during entire period of limitation and no sufficient cause sustained for delay in filing appeal, the delay cannot be condoned.

SEE the observations made by the Apex Court in State Bank of India v. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC)=II (2009) SLT 793.

THERE is nothing to show that the petitioner is an illiterate person. When the appeal was not listed or no information about it was received after 30 days, surely, alarm bells should have rung. The gross negligence, deliberate inaction and lack of bona fides is imputable to the petitioner. In the light of above said position, the revision petition is hereby dismissed, in limine, with no order as to cost. Revision Petition dismissed.