State Consumer Disputes Redressal Commission
The Medical Superintendent Managing ... vs Jagrut Nagrik on 17 May, 2021
Details DD MM YY
Date of Judgment 17 05 2021
Date of filing 19 03 2020
Duration 29 1 1
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Misc. Application No. 185 of 2020
[Virtual hearing]
Court No.1
The Medical Superintendent,
Managing Director,
M/s. Jalaram chaksu Kendra and Sheth M. L. Vaduwala Eye Hospital,
Vinobabhavan Marg, Salatwada
Vadodara. 390001. ...Applicant
Vs.
(1) Jagrut Nagrik,
(A voluntary Consumer Association)
Through their Managing Trustee P.V.Moorjani,
Opp. LBS Vidhyalay, Nr. Prerna School,
Sangam Karelibaug Road,
Vadodara.
(2) Sangitaben V. Rana
Gorva Garasia Mohalla,
Opp. Police Station,
Vadodara.
(3) The Oriental Ins. Co. Ltd.
Mahajan's Lane, Raopura,
Vadodara.
(4) Dr. Anishaben Shah,
F-2, Shri Jala Ashtha,
Ellorapark,
Vadodara. ...Respondents
Applicant- ld. advocate Mr. D. K. Dave
Respondent No. 1 & 2- Mr. P. V. Moorjani,
Respondent no. 3- ld. advocate Ms. L. K. Bhaya,
Coram : Hon'ble Justice V. P. Patel, President
Smt. U.P. Jani, Member
M. B. Desai MA-20-185 Page 1 of 17
ORAL ORDER: By Justice V. P. Patel, President
1. This is an application filed by the applicant under section 5 of the limitation Act to condone the delay of 774 days.
2. Heard ld. advocate Mr. D. K. Dave, ld. advocate for the applicant, for respondent no. 1 and 2 representative Mr. P. V. Moorjani and for respondent no. 3 ld. advocate Ms. L. K. Bhaya.
3. Facts of the application and arguments.
3.1. The respondent no. 1 and 2 had filed complaint under section 12 of the Consumer Protection Act, 1986 against the present applicant and respondent no. 3 and 4 before the Consumer Disputes Redressal Forum, Vadodara (Addl.) (For short Learned District Commission) vide consumer case no. 406 of 2000. The said compliant was partly allowed vide order dated 29.12.2017. Being aggrieved and dissatisfied with the order passed by the CDRF, Vadodara (Addl.) in Consumer case no. 406 of 2000, the present applicant want to file an appeal under section 15 of the Consumer Protection Act, 1986. It has to file an appeal within 30 days but it could not filed appeal in prescribed time limit but the delay is cause of 774 days in filing the appeal therefore, this delay condonation application is filed.
3.2. It is the case of the applicant that the copy of the judgment was duly signed by the secretary to the learned Forum on 20.6.19 and therefore, the judgment was received by the applicant on 24.6.19. That the lawyer was appointed and she has taken all the responsibility to appear, defend and perform other ancillary duties but appellant trust got to know that there was no progress in the proceedings. That the appellant trust has to take formal decision and there was necessity of expert opinion, another legal advice was taken and thereafter lawyer was changed. That the entire process took a reasonable amount of time hence delay has been occurred. That the delay is bonafide and inadvertent. It is also stated in the application that the applicant has filed appeal bonafide and there is no malafide intention on the part of applicant. That if the application is not allowed then applicant trust has to suffer financial nature and loss of goodwill. That the applicant has meritorious case and likely to be succeeded.
4. Reply of the opponents and submissions.
4.1 The notice is served to the opponent no. 1 and 2 and they have appeared and filed written objection and documentary evidence. It is stated in the written objection that previously the M. B. Desai MA-20-185 Page 2 of 17 insurance company i.e. opponent no. 3 had filed appeals with delay condone application to condone delay of 581 days and 642 days which were granted by this Commission (Court No. 2) on 26.2.20. Hence on the same ground present applicant are not entitled to condone delay. It is submitted that the District Commission has passed well reason order by detail discussion of facts, evidence, arguments. That the order passed by the District Commission has no legal irregularity therefore, this application is required to be dismissed. It is also submitted that applicant has preferred three appeal wherein, it is stated that they have received the order of the District Commission on 22.1.2018 therefore, it can be presumed that applicant have received copy of order on 22.1.2018 but they have mentioned the date 24.6.2019 with malafide intention to get advantage. It is further stated that the appeal is bared of limitation as sufficient cause is not made out therefore, application is required to be dismissed with cost.
4.2 The notice was duly served to the respondent no. 3 and it was appeared through ld. advocate and filed written objection. It is stated in the written objection that the facts of the application is not admitted by the respondent no. 3. That the application is filed with malafide intention after the order passed by the Hon'ble Commission in appeal filed by the insurance company and granted stay. That the applicant was already party to the said proceeding and has appeared number of times in the said proceedings. That the applicant was duly served by the opponent no. 3 and copies of the appeal filed by the opponent no. 3. That the applicant has filed appeals and delay condonation application with a view to see that the applicant is not required to deposit the amount awarded by the ld. District Commission. This applications are filed only after the original complainant has filed execution petition. That the no sufficient cause is shown and delay is explained properly. Therefore, the delay application is required to be dismissed.
Arguments of the applicant:
5. Ld. advocate for the applicant has argued that applicant trust runs hospital and has been giving eye care service for extremely negligent rate and also providing free eye operation services since many years. That the applicant hospital is reputed trust hospital in Vadodara. That the trust has appointed Mrs. Harsha Chauhan as a retainer because of financial crunch of the trust. That the applicant does not have any in house legal officer in the M. B. Desai MA-20-185 Page 3 of 17 office and the retainer services are availed and the retainer was informed to look after all the legal proceedings of trust. That the trust have no knowledge about the proceedings as well as the order passed by the District Commission. That the trust had also inquired several times about the ongoing trial however, no satisfactory answer was received by the hospital and therefore, trust was compelled to change the advocate on record. That the trust came to the knowledge of order passed by the District Commission after notice of the execution application was served. That the retainer advocate has filed only four appeals therefore, four appeals were withdrawn when they came to know about earlier filing of appeal against the same order.
5.1 It is further argued that trust had a different administrative staff headed by Mr. H. R. Dholakia who used to look into the administrative issues of the trust. That the Mr. Dholakia is a senior citizen 85 years old therefore, it was difficult to handle all the administrative matters at the relevant point of time. That the financial crunch faced by the trust and Mr. Dholakia was volunteered to look after the administration. That the entire administration staff has undergone a change and Mr. Dholakia is also replaced by Mr. Patwa. Due to shifting of administrative wing of the trust there was miscommunication and confusion and therefore, delay had occurred.
5.2 That the insurance company has filed delay condone application for preferring the appeal which was granted by this Commission. In the said order of granting delay was challenged before the National Commission by way of revision petition. Such revision petition are dismissed and confirm the order of delay condone application. That the applicant is jointly and severely liable along with insurance company and therefore, ground of parity applies in the present case with the insurance company. That the applicant is also liable to succeed on that ground. That applicant got a statutory right, which cannot be frustrated on the ground of delay.
5.3 It is also argued that the opponent no. 1 has not disclosed the fact that the opponent no. 1 had challenged the order passed by this Commission condoning the delay occasion on account of insurance company in preferring the appeal before the National Commission. The applicant was not joint as a party in the same and therefore, the applicant has challenged the same. That the opponent no. 1 has deliberately suppressed the fact that the M. B. Desai MA-20-185 Page 4 of 17 order passed by this Commission was upheld by the National Commission. It is also argued that condonation of delay application is not preferred with malafide intention. That the applicant not waited for the order condoning the delay of insurance company. That there was no knowledge, communicated or handed over the certified copy to the applicant and therefore, applicant has tried for obtaining the certified copy of order and judgment. It is also argued that sufficient cause are shown by the applicant and delay is required to be condone in the interest of justice. Ld. advocate has relied upon certain judgments which will be discussed hereinafter.
Argument of the respondent no. 1 and 2.
6. Representative of the respondent no. 1 and 2 argued that the applicant has knowledge of the order passed by the District Commission on 22.2.18 in spite of that they have not taken trouble to file appeal in time. It shows the malafide intention on the part of applicant. He has produced certain documentary evidence to show that the officers of the trust and the ld. advocate of the trust have knowledge about the order passed by the District Commission. It is further argued that the delay is required to be explained from 22.1.18 and the same is not categorically explained by filing the affidavit. That whatever the facts stated in the application, that does not disclose the sufficient cause for condonation of delay. He has further argued that trust has acted malafide and suppressed material facts before the Commission. Therefore, application is required to be dismissed with heavy cost. He has relied upon certain judgments which will be discussed hereinafter.
Argument of respondent no. 3.
7. Ld. advocate for the insurance company has argued that the three appeals are filed by the present applicant with a delay condonation application wherein, the affidavit was filed by the responsible officer of the trust. Therefore, it is reason to believe that the trust has knowledge about the order passed by the District Commission. That the mistake of advocate is not real cause of delay but the applicant wants to wait about result of filing of appeal preferred by the insurance company. Therefore, this application is required to be dismissed with cost.
8. We have considered the ratio laid down by the Hon'ble Apex court in the judgment cited by applicant.
M. B. Desai MA-20-185 Page 5 of 17(A) (2000) 10 SCC 174: Deepak Prashad vs. Automobile products of India and Ors. wherein, Hon'ble Supreme Court observe as under:
"He had in fact approached the advocate in the month of June and an affidavit for condonation of delay was also prepared in the month of July, 1986. It appears that the advocate who was engaged by the appellant did not file the appeal, kept the appellant in the dark and got two or three more affidavits sworn by the appellant to create an impression that the matter was being pursued by him. Ultimately he filed the appeal in November. The very fact that the appellant had sworn an affidavit for condonation of delay in July 1986 would clearly indicate that he wanted to pursue the matter and was not negligent in taking necessary steps. He had filed an appeal to the Chairman of the respondent Company in time but there was no response. After waiting for a reasonable time he consulted a lawyer in the month of June 1986. The appellant himself had stated before the Court that it was in the last week of April 1986 that he had come to know about the termination order; therefore, from this inconsistency alone the High Court should not have doubted the correctness of the reason given by the appellant for the delay."
(B) (2002) 3 SCC 195: Ram Nath Sao vs. Gobradhan Sao, wherein, Hon'ble Supreme Court observe as under:
"Thus it becomes plain that the expression "sufficient cause"
within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and M. B. Desai MA-20-185 Page 6 of 17 irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
(C) (2002) 4 SCC 458: Municipal Corporation Gwalior vs. Ramcharan and Ors., wherein, Hon'ble Supreme Court observe as under:
The contest before this Court has been more vehement than what it appears to have been before the High Court. It is true that sanctity attaches with the record of court proceedings. However, in the present case the question is not so much of casting a doubt on the record of proceedings maintained by the Court as is on testing the bona fides of the counsel who filed his own affidavit in support of the application under Section 5 of the Limitation Act. The counsel and the Revenue Officer, who filed their affidavits, do not have any personal interest in the matter. The learned advocate appearing for the Municipal Corporation was not going to gain anything either by remaining absent at the time of hearing of the first appeal or by assigning a false cause for his non-appearance at the time of hearing.
Valuable rights of the parties in an immoveable property are involved. On the totality of the facts and circumstances of the case, we are of the opinion that the High Court ought to have been taken a liberal, and not a rigid and too technical a view of the issue before it and should have condoned the delay in filing the appeal and concentrated on examining whether the appeal raised any substantial question of law worth being heard by the High Court. In our opinion, a sufficient cause for condoning the delay in filing the appeal before the High Court is made out. These judgments are not applicable to the present case as the facts are different and days of the delay in the cited judgment are very less than the present case.
9. We have considered the ratio laid down by the Hon'ble Apex court in the judgment cited by respondent no. 1 and 2.
(A) In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court Para 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 M. B. Desai MA-20-185 Page 7 of 17 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."
(B) 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."
(C). Hon'ble Supreme 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."
(D) Judgment of Apex Court in Post Master General and Ors. Vs. Living Media Ltd. and Ors. (2012) 3 SC cases 563 has held: after referring various earlier decision, taking very lenient view in condoning the delay, particularly, on the part of the government and Government Undertaking, this Court observed as under:
"It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to M. B. Desai MA-20-185 Page 8 of 17 indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
(E) II (2013) CPJ 2A (NC) (CN): Haryana Urban Development Authority and Anr. vs. Desh Raj Yadav. After discussing of number of judgments of Hon'ble Supreme Court as well as Hon'ble National Commission the Hon'ble National Commission has observed in para 11 as under:
"11. Thus gross negligence, deliberate inaction and lack of bona fides are imputable to the petitioners. Accordingly, no sufficient grounds are made out for condoning the delay of 15 days in filing the present revision petition. The application for condonation of delay under these circumstances is not maintainable and present revision is barred by limitation is hereby dismissed with cost of Rs.25,000/- (Rupees twenty five thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10 A of the Consumer Protection Rules, 1987 within four weeks from today. In case the petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation."
10. We have considered the ratio laid down by the Hon'ble Apex court in the judgment cited by respondent no. 3.
(A) Judgment delivered by Hon'ble Supreme Court in Criminal Appeal No. 1406/2012 in the case of Kishor Samrite vs. State of U. P and Ors. wherein, it is observed as under:
"33. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally M. B. Desai MA-20-185 Page 9 of 17 misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts".
34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
35. No litigant can play „hide and seek‟ with the courts or adopt „pick and choose‟. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court.
36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions."
(B) Judgment delivered by Hon'ble Supreme Court in Civil Appeal No. 5239/2002 in the case of Dalip Singh vs. State of U. P and Ors. wherein, it is observed as under:
"3. In Welcome Hotel and others v. State of Andhra Pradesh and others etc. AIR 1983 SC 1015, the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.
5. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding M. B. Desai MA-20-185 Page 10 of 17 an important 3 document from the court, the party concerned deserves to be thrown out at any stage of the litigation.
8. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct.
9. In K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12 SCC 481, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141. (C) Judgment delivered by Hon'ble Supreme Court in Civil Appeal No. 4270/2008 in the case of K. D. Sharma vs. Steel Authority of India Ltd. and Ors. wherein, it is observed as under:
16. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry & Ors. V. Govt. of A.P. & Ors., (2007) 4 SCC 221. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: "It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a 1 nullity and non est in the eye of law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings".
17. The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam.M. B. Desai MA-20-185 Page 11 of 17
24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.
26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.
29. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and „clean breast‟ cannot hold a writ of the Court with `soiled hands‟. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.
36. Describing the fact as material, the Court said: "Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court".
39. In Union of India v. Muneesh Suneja, (2001) 3 SCC 92, the detenu challenged an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 (COFEPOSA) by filing a petition in the High Court of Delhi which was withdrawn. Then he filed a similar petition in the High Court of Punjab & Haryana wherein he did not disclose the fact as to filing of the earlier petition and M. B. Desai MA-20-185 Page 12 of 17 withdrawal thereof and obtained relief. In an appeal by the Union of India against the order of the High Court, this Court observed that non-disclosure of the fact of filing a similar petition and withdrawal thereof was indeed fatal to the subsequent petition.
45. Yet in another case in Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401; this Court stated; "In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice".
Merits of the case:
11. Considering the pleadings of the party, arguments advanced by both the parties, documentary evidence on record following facts are emerged.
(A) The delay condonation application does not show the ground as regards to the lacking on the part of advocate. (B) That there were 17 cases pending before the District Commission. The District Commission has passed judgment and order on 28.12.2017 in all the 17 cases. The insurance company has filed 12 appeals under section 15 of the C. P. Act, 1986. The said appeal was filed with delay condonation application and the delay was condoned by this Commission (Coram, Court no. 2). The description of the cases filed by the applicant as well as present application, appeal filed by the insurance company are mentioned herein under.
Sr. No. of
Judgment MA FILED BY MA FILED
Complaint Appeal Filed
Sr.no register of MSMD BY Oriental.
No. by Oriental
District (Applicant) Ins. Co.
Commission.
1 778 CC/2000/310 MA/20/183
2 777 CC/1998/283 MA/20/184 MA/19/551 A/20/152
3 774 CC/2000/406 MA/20/185 MA/19/423 A/20/144
M. B. Desai MA-20-185 Page 13 of 17
4 778 CC/2000/530 MA/20/186
5 787 CC/2000/373 MA/20/187 MA/19/420 A/20/141
6 785 CC/2000/404 MA/20/188 MA/19/421 A/20/142
7 782 cc/2000/374 MA/20/189 MA/19/425 A/20/146
8 780 CC/2001/123 MA/20/190 MA/19/547 A/20/148
9 783 CC/2001/667 MA/20/191 MA/19/549 A/20/150
10 788 CC/2000/405 MA/20/192 MA/19/550 A/20/151
11 773 CC/2001/2 MA/20/193 MA/19/546 A/20/147
12 784 CC/2000/403 MA/20/194 MA/19/424 A/20/145
13 775 CC/2001/153 MA/20/195 MA/19/422 A/20/143
14 776 CC/2001/94 MA/20/196 MA/19/548 A/20/149
15 786 CC/2001/695 MA/20/197
16 781 CC/2004/501 MA/20/198
17 791 CC/2004/1424 MA/20/238
(C) Opponent no. 1 and 2 has produced copy of the outward register of the ld. District Commission Vadodara. On perusing the same it appears that the certified copy of the judgment and order are delivered to the ld. advocate Mrs. Harsha Chauhan on 24.1.18. The signature with date is mentioned by the advocate against the serial no. 773 to 788 of the said register.
12. Applicant has filed three appeals before this Commission wherein, they have stated that they have received the copy of the order on 22.1.18. The details are as under:
Present Previous Order Complainant Name
CMA No. Appeal No. Received Date
190/2020 A/18/297 22-02-2018 Kanubhai Raj
192/2020 A/18/298 22-02-2018 Bhikhabhai Kadam
194/2020 A/18/299 22-02-2018 Syamlal Sachwani
12.1 Opponent no. 1 and 2 has produced copy of notice along with appeal memo of appeal NO. 297/18. On perusing the same it appears that the appeal is filed by the present applicant against the present respondent. The notice was issued on 1.12.18 and the opponents are directed to remain present 18.12.18.
Opponent no. 1 and 2 has filed copy of appeal memo of appeal NO. 297/18. On perusing the same it is stated in para 4 of the appeal memo that they have received copy of the impugned order on 22.1.18 and they have filed appeal within 30 days from the date of order.
12.2 Opponent no. 1 and 2 has produced copy of notice along with appeal memo of appeal No. 298/18. On perusing the same it appears that the appeal is filed by the present applicant M. B. Desai MA-20-185 Page 14 of 17 against the present respondent. The notice was issued on 1.12.18 and the opponents are directed to remain present 18.12.18.
Opponent no. 1 and 2 has filed copy of appeal memo of appeal No. 298/18. On perusing the same it is stated in para 4 of the appeal memo that they have received copy of the impugned order on 22.1.18 and they have filed appeal within 30 days from the date of order.
12.3 Opponent no. 1 and 2 has produced copy of notice along with appeal memo of appeal No. 299/18. On perusing the same it appears that the appeal is filed by the present applicant against the present respondent. The notice was issued on 1.12.18 and the opponents are directed to remain present 18.12.18.
Opponent no. 1 and 2 has filed copy of appeal memo of appeal No. 299/18. On perusing the same it is stated in para 4 of the appeal memo that they have received copy of the impugned order on 22.1.18 and they have filed appeal within 30 days from the date of order.
13. Opponent No. 1 and 2 has filed Xerox copy Vakalatnama of ld. advocate Harsha Chauhan filed in Execution Application No. 181/18 before the ld. District Commission. On perusing the same it appears that the Vakalatnama is signed by the administrator of the applicant and the same is produced on 21.7.18. Therefore, it can be presumed that on or before 21.7.18 applicant came to know about the judgment and order passed by the Ld. District Commission.
13.1 Opponent no. 1 and 2 has filed copy of Vakalatnama of ld. Advocate D. K. Dave filed in Execution Application No. 181/18. On perusing the same it appears that the administrator of the applicant has signed and the said Vakalatnama was produced on 1.12.18.
14. In view of the above discussion, considering the documentary evidence on record, it appears that the impugned order is passed by the District Commission on 18.12.17 thereafter, present applicant has filed three appeals on 9.2.18 i.e. appeal No. 297/18, 298/18 and 299/18. Applicant has mentioned in the said memo of appeals that they have received the judgment and order of the ld. District Commission on 22.1.18. As per the copy of judgment register, ld. advocate for M. B. Desai MA-20-185 Page 15 of 17 the applicant has received the copy on 24.1.18. It is also reflected that applicant has appeared in the Misc. Application (Delay condonation application) filed by the insurance company and all the matters of 2019 as shown in the above para. It means that the applicant is well aware about the judgment and order passed by the ld. District Commission at the time of appearance made in Misc. Application (Delay condonation application) filed by the insurance company (respondent no. 3.).
15. In spite of above facts, applicant has stated in the application that they came to know about the judgment and order on 24.6.19. We find that the applicant deliberately suppressed material facts as regards to the knowledge of the judgment and order passed by the ld. District Commission. That the applicant has narrated wrong facts in the application about the knowledge of the judgment passed by the ld. District Commission. Applicant has not come with clean hands therefore, in view of the ratio laid down by Hon'ble Supreme Court in above referred cases, applicant is not entitled to condone the delay or any relief.
16. We have considered the facts of the application, arguments advanced by parties, ratio laid down in above referred judgments and facts and circumstances of the case and find that the applicant has not explained sufficient cause for not filing the appeal within prescribed time limit. Hence, following order is therefore passed.
ORDER A) Misc. Application No. 185 of 2020 is dismissed.
B) The appellant is directed to apply to the Account section of the State Commission with all details of C.M.A. NO./ Appeal No., Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
C) No order as to costs.
D) Copy of the judgment and order be provided to the parties
free of costs.
M. B. Desai MA-20-185 Page 16 of 17
E) Pronounced in the open Court on this 17th May, 2021.
[Mr. V. P. Patel]
President
[Smt. U. P. Jani]
Member
M. B. Desai MA-20-185 Page 17 of 17