State Consumer Disputes Redressal Commission
Bhanupratap Singh vs Jayka Automobile on 5 January, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Miscellaneous Application No.15/11
Instituted on : 17.12.2015
Bhanu Pratap Singh, S/o Ramswaroop Singh,
R/o : Ward No.03, Near Water Tank, Khairagarh,
Post and Tehsil Khairagarh, Dist. Rajnandgaon (C.G.). ... Applicant
Vs.
Jaika Automobiles and Finance Pvt. Ltd.,
R/o : Raipur Ring Road No.01,
Tehsil & District Raipur (Chhattisgarh) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
MISS HEENA THAKKAR, MEMBER
SHRI D.K. PODDAR, MEMBER HON'BLE SHRI NARENDRA GUPTA, MEMBER COUNSEL FOR THE PARTIES: -
Miss Divya Chandrakar, for the applicant.
ORAL ORDER Dated : 05/01/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This is an application filed by the applicant (complainant) for restoration of Appeal No.325/2011 on it's original number by recalling or reviewing the order of dismissal, passed by this Commission on 05.10.2011. On that day the appeal of the applicant (complainant) was dismissed, as none appeared on behalf of the applicant (complainant) before this Commission, even in second round.
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2. The applicant (complainant.) has preferred this application belatedly by near about 4 years and has also filed application under Section 5 of the Limitation Act for condonation of delay..
3. Miss Divya Chandrakar, learned counsel appearing for the applicant (complainant) has argued that the applicant (complainant) had field the above appeal against the order of the District Forum dated 30.04.2011. After filing the appeal, the counsel for the applicant (complainant) did not inform the actual position of the case and when asking about the date, then he was not informing the correct date and saying that the appeal is pending. The applicant (complainant) came to know through representative of the respondent (O.P.) that the appeal was dismissed in default in the year 2011. The appeal was dismissed due to carelessness of the counsel for the applicant (complainant). After getting knowledge regarding the dismissal order on 30.08.2015, the applicant (complainant) applied for certified copy of the order and contacted his counsel for further proceedings, but none of the Advocate agreed to take action against the Advocate. The applicant (complainant) is an illiterate person and is not aware regarding the judicial procedure, therefore, the applicant (complainant) was in need of any Advocate but due non-availability of the Advocate, delay occurred in filing the restoration application. She further argued that the delay being bonafide and unintentional, deserves to be condoned.
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4. We have heard arguments of Miss Divya Chandrakar, learned counsel appearing for the applicant (complainant) on the application filed by the applicant (complainant) under Section 5 of the Limitation Act, for condonation of delay in filing the application for restoration.
5. In Basavraj & Anr. V. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, Hon'ble Supreme Court observed thus:
"9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee &Ors., AIR 1964 SC 1336; Lala Matadin v. A.Narayanan, AIR 1970 SC 1953; Parimal v. Veena alias Bharti AIR 2011 SC 1150 : (2011 AIR SEW 1233); and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629 : (2012 AIR SCW 2412.)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its // 4 // operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
6. In Ludhiana Improvement Trust vs. Ms. Harpreet Kaur, 2013 (4) CPR 848 (NC), Hon'ble National Commission observed thus :-
"11. Hon'ble Apex Court in Post Master General & Ors. Vs. Living Media India Ltd. and Anr. (2012) 3 SCC 563, has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 62 days. In such circumstances, application for condonation of delay has been dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed."
7. In N. Manohar Reddy v. Happy Farm and Resorts, I (2014) CPJ 149 (NC), Hon'ble National Commission observed thus :-
// 5 // "16. This Section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is real and bona fide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it.
25. It is well settled that "sufficient cause" for non-appearance in each case, is a question of fact. Delhi High Court in New Bank of India v. M/s Marvels (India), 93 (2001) DLT 558, has held :
No doubt the words 'sufficient cause' should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bona fide are clearly imputable, the Court would not help such a party. After all 'sufficient cause' is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
26. In Ram Lal and Ors. v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 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 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.
30. Decision of Anshul Aggarwal (supra), has been reiterated in Cicily Kallarackal v. Vehicle Factory, IV (2012) CPJ 1(SC) wherein Hon'ble Supreme Court observed :
4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts / Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court // 6 // held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstances of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
[See also Amarjyothi House Building Co-operative Society Limited v. V.S. Pradeep, I (2014) CPJ 438 (NC)."
8. The Hon'ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has 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."
9. It must be borne in mind that Consumer Protection Act, 1986 lays down its own period of limitation. In the instant case, looking to the application filed by the applicant (complainant) under Section 5 of the Limitation Act for condonation of delay in filing the application for restoration of appeal and affidavit of the applicant (complainant) filed in support of the said application, it appears that the reasons assigned // 7 // by the applicant (complainant) in the said application regarding delay in filing the Miscellaneous Application, are not satisfactory and delay has not been explained properly.
10. The Miscellaneous Application filed by the applicant (complainant) is barred by limitation by near about 4 years and no proper explanation has been given by the applicant (complainant). Thus, on the facts of the case, the Miscellaneous Application filed by the applicant (complainant.), is barred by limitation and no satisfactory explanation has been given by the applicant (complainant) in the application filed under Section 5 of the Limitation Act for condonation of delay in filing the miscellaneous application. In the said application no sufficient ground has been mentioned for condoning the delay in filing the miscellaneous application before the period of limitation, therefore, the miscellaneous application, is barred by time, which is liable to be and is hereby dismissed.
11. So far as application filed by the applicant (complainant) for restoration of Appeal No.325/2011, which was dismissed on 05.10.2011 for want of appearance is concerned, Miss Divya Chandrakar has argued that the after filing the appeal, the counsel for the applicant (complainant) did not inform the actual position of the case and when asking about the date, then he was not informing the correct date and saying that the appeal is pending. The applicant (complainant) came to know through representative of the respondent (O.P.) that the appeal // 8 // was dismissed in default in the year 2011. When the applicant (complainant) sought information from Shri Ravi Bodhani, Advocate then he accepted that appeal was dismissed in the year 2011 but could not give information because the applicant (complainant) would be shocked. The appeal was dismissed due to carelessness of the counsel for the applicant (complainant). Therefore, non appearance of the counsel on 21.08.2015 before this Commission, is beonafide.
12. In the Consumer Protection Act, 1986, the State Commission and District Forums, have not vested with any power to review, recall their earlier orders and to restore the appeal/complaint.
13. In Rajeev Hitendra Pathak & Others v. Achyut Kashinth Karekar, IV (2011) CPJ 35 (SC) = 2011 (9) SCC 541, Hon'ble Supreme Court observed thus :
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned Counsel for the parties.
36. On carefully analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far it has held // 9 // that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review of recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
14. In the case of Bastar Jila Upbhokta Sanrakshan Samiti & Anr. vs. General Manager, District Trade and Industries Centre, Jagdalpur, 2012 (3) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"14. It is settled law (vide Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another), (2011) 9 SCC 541 that neither a State Commission nor a District Forum has, under the provisions of the Act, the power to review or recall/modify any order passed by it. Thus, the District Forum has rightly dismissed the application filed by the complainant seeking restoration of her complaint dismissed earlier for non-prosecution. The State Commission has also correctly dismissed the appeal against that order."
15. In Manager, Hinduja Leyland Finance Ltd. Vs. Motilal Swain, 2014 (4) CPR 199 (NC), Hon'ble National Commission has observed thus :-
"5. After disposing Revision Petition, Learned State Commission has no authority to review its order in the light of judgment of Hon'ble Apex Court in Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar, 2012 (1) CPR 78 (SC)."
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16. Looking to the above judgments of Hon'ble Supreme Court and Hon'ble National Commission, it is clear that the State Commission, does not enjoy any power of reviewing its earlier orders or to restore the appeal, which was dismissed in default earlier.
17. Thus, the appeal No.325/2011, which was earlier dismissed in default by this Commission, vide order dated 05.10.2015, cannot be restored.
18. Therefore, the present application for restoration, is not maintainable and is liable to be dismissed.
19. Thus, the application filed by the applicant (complainant) for restoration of the appeal No.325/2011 on it's original number, is dismissed on both counts i.e. limitation and maintainability. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /01/2016 /01/2016 /01/2016 /01/2016