State Consumer Disputes Redressal Commission
Kashmiri Lal vs Rajesh Gupta on 5 December, 2013
Misc. Appl. No.1057 of 2012 1
In/and
First Appeal no.679 of 2012
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Misc. Appl. No.1057 of 2012
In/and
First Appeal No.679 of 2012
Date of institution: 28.05.2012
Date of decision : 05.12.2013
Kashmiri Lal @ Kashmiri Singh s/o Shanit Sarup, resident of Village Bishnandi, now
resident of c/o Avtar Singh Dhillon House no.11994, Street No.1, Naruana Road,
Dashmesh Nagar, Bathinda.
.....Appellant
Versus
Dr. (Major) Rajesh Gupta, Major's Gupta's Bone and Joint Hospital (Namarta
Hospital) Bhatti Road, Near G.T.Road, Bathinda.
.....Respondent
Misc. Appl. No.1057 of 2012 for condonation of delay
of 119 days in filing the appeal
In Re:
First Appeal against the order dated 26.12.2011
passed by the District Consumer Disputes Redressal
Forum, Bathinda.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Piare Lal Garg, Member Argued By:-
For the appellant : Sh. Damanjeet, Advocate
For the respondent : Sh. Vinish Singla, Advocate
PIARE LAL GARG, MEMBER
Misc. Appl. No.1056 of 2012
The applicant has filed an application for condonation of delay of 119 days in filing the appeal.
2. First appeal filed by the appellant/complainant (hereinafter called 'the appellant') for modification of the order for enhancement of compensation awarded by the District Forum Bathinda (hereinafter called the 'District Forum') vide order dated 26.12.2011.
Misc. Appl. No.1057 of 2012 2
In/and First Appeal no.679 of 2012
3. The applicant has filed an application for condonation of delay of 119 days in filing the appeal on the following grounds:-
1. The applicant has suffered 50% disability due to negligence on the part of the respondent and was under mental tension, due to this reason he remained bed ridden and could not seek advise of his counsel, the delay is neither intentional nor deliberate but due to disability of the applicant.
4. Upon notice, reply to the application was filed by the respondent alleging that the version of the applicant that he was bed ridden is not correct as he used to regularly attend the services at Gurudwara Sahib at Bathinda as he is Granthee in the said Gurudwara Sahib and also attended the court proceedings before the District Forum, Bathinda. The application of the applicant for condonation of delay is false and frivolous and liable to be dismissed.
5. We have perused the application for condonation of delay as well as reply of the same.
6. The applicant has taken only one ground for not filing of the appeal within limitation as he is 50% disable and is bed ridden but the applicant has not produced any advise of the doctor that the applicant is not in a position to walk or to travel.
7. It is also not disputed that the applicant is serving as 'Granthee' in Gurudwara Sahib situated at Bathinda. The applicant has also not produced any record of the Gurudwara Sahib that he also remained on leave from the date of order till filing of the appeal.
8. It is alleged by the applicant that due to bed ridden he could not take advise of his counsel but in the entire application no name of the Advocate is disclosed from whom he was to take the legal advise, there is also no date mentioned in the application when the applicant approached the Advocate who has filed the appeal.
9. There is no sufficient grounds for the condonation of delay. Misc. Appl. No.1057 of 2012 3
In/and First Appeal no.679 of 2012
10. Apex court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ63(SC) has observed.:-
"It is also apposite to observe that while decideing 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.
17. This Commission in Mahindra Holidays & Resorts India Ltd. Vs. Vasantkumar H.Khandelwal and Anr, Revision Petition no.1848 of 2012 decided on 21.05.2012 has held:
"that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days".
11. Hon'ble Supreme Court in case Kamlesh Babu "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter-455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
12. The Hon'ble Punjab & Haryana High Court has held in case "Jagmal Vs Land Acquisition Collector & Others, 2009(2) RCR (Civil)-349 (P&H)" that:-
"Proof of sufficient cause is condition precedent for exercise of discretion by the Court in condoning the delay .............".Misc. Appl. No.1057 of 2012 4
In/and First Appeal no.679 of 2012
13. There is another judgment of the Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By Lrs. Vs State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), in which it was observed in Para-26(relevant portion) after considering the entire case law on the point of delay, as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
14. The Hon'ble National Commission in case "M/s Arihant Builders & Co. versus Gaurav Anand Co-op. Housing Society", 2012(4) CPR 487 (NC), discussed almost all the judgments on the delay point and it was held in case "Banshi v. Lakshmi Narain", 1993 (1) R.L.R. 68 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;"
15. Hon'ble National Commission in its decision in case "A.V. Sreedharan Vs. M.V. Narayanan", CPJ 2012 684 (NC) held that 'object of expeditious adjudication of consumer dispute will get defeated if the application is entertained when no cogent reason is given in the application for condonation of delay.'
16. In view of the above legal proposition referred in the judgments and as per the facts of the case, the applicant has not been able to establish Misc. Appl. No.1057 of 2012 5 In/and First Appeal no.679 of 2012 any sufficient cause to condone the delay in filing the appeal, therefore, the application is hereby dismissed.
17. In view of the above discussions, we are of the view that there is no sufficient cause to condone the delay in filing the appeal, therefore, the application is hereby dismissed.
Main Case As the application for the condonation of delay is dismissed, therefore, First Appeal no.679 of 2012 is also dismissed as time barred with no order as to costs.
18. The arguments in this appeal were heard on 29.11.2013 and the order was reserved. Now the order be communicated to the parties.
19. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 05, 2013 Rs