APPEAL NO.220/2010

JUDGMENT DATED: 22.7.10

PRESENT

SMT.VALSALA SARANGADHARAN               : MEMBER

SRI.S.CHANDRAMOHAN NAIR                       :MEMBER

Muktha.K.N,                                                         : APPELLANT

Koyikkalethu,

Maruthoorkulangara(S),

Alumkadavu.P.O.,

KArunagappally,

Kollam 690573.

     Vs.

Adv.Y.Abdul Azeez,                                           : RESPONDENT

Eastern Lane,

Civil station, Kollam.

JUDGMENT

SMT.VALSALA SARANGADHARAN     : MEMBER

          This appeal is preferred against the order in IA.418/09 in CC.197/09 of CDRF, Kollam.  The above said IA was filed by the opposite party questioning the maintainability of the complaint on the ground of limitation.  The opposite party’s contention was that the complaint was barred by limitation as 2 years have elapsed from the date of cause of action.  The opposite party relinquished the vakalath  on 12.6.06 and the complaint was  filed only on 3.7.09 by which period the limitation prescribed under Consumer Protection Act was crossed over and as there was no petition to condone the delay, the opposite party prayed for the dismissal of the complaint in limine.

          2. The appellant/complainant filed objection stating that she had filed an appeal before the Hon’ble High Court and a complaint against the opposite party before the bar council after the disposal of her case before the Family court, Kollam. In which the opposite party had relinquished the vakalath and hence the complaint could be filed at any time since the appeal is pending  before the Hon’ble High Court.

          3. On hearing both sides the Forum below passed the impugned order.  It is the admitted fact that the opposite party/respondent had relinquished the vakalath on 12.6.06 and the appellant/complainant received the copy of the judgment passed by the Family Court, Kollam on 26.12.06 and the complainant/appellant had filed the complaint before the forum only on 3.7.09.  It is also admitted that no petition for condonation of delay had been filed along with the complaint.  Though the appellant argued before us that Forum ought to have adjudicated the matter on merits since the complaint was received by the Forum and it was numbered.  The mere fact that the complaint was numbered cannot be taken as a ground to hold that the delay was condoned.  The appellant has also submitted that she was ready to file a petition  to condone the delay and she was unaware of the fact that if the complaint is filed after 2 years a petition to condone the delay also ought to have been filed along with the complaint.   Such an argument  also cannot be countenanced since the ignorance of the provisions of the Act can not be justified.

          It is the settled position that, it is the duty of the Forum to consider the issue regarding limitation and that the complaint preferred after the prescribed period is to be dismissed as barred by limitation,  if there is no petition accompanying  the complaint to condone the delay.  In the present case the respondents/ opposite parties moved a petition requesting the Forum below to consider the issue regarding limitation.  The Forum below rightly considered the issue as to whether the complaint is barred by limitation or not.  Thus the impugned order passed by the Forum below finding the complaint as barred by limitation is legally sustainable.  There is no merit in the present appeal and the same deserves dismissal.   Hence we do so.

                   In the  result the appeal is dismissed at the admission stage itself.

          SMT.VALSALA SARANGADHARAN               : MEMBER

          SRI.S.CHANDRAMOHAN NAIR                       :MEMBER

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