SAMIKSHA BHATTACHARYA, MEMBER
This is to consider the Interlocutory Application being No. IA/28/2023 filed by OP No. 1 namely, Dr. P.K. Sen praying for granting chance to OP No. 1 to file his evidence modifying the order dated 16th March, 2020 being order No. 19 passed in the instant complaint case being CC/487/2016.
By filing this Interlocutory Application, OP No. 1 has stated that the OP No. 1 had full and complete trust and faith upon the Ld. Advocate Mr. Srijan Nayak for taking necessary steps to be taken in the case on behalf of the OP No. 1. Lastly on 03.07.2019 the Ld. Advocate for the OP No. 1 appeared and made necessary submission in respect of the complaint case. The OP NO. 1 was in complete dark of and not aware that the said Ld. Advocate had discontinued appearing on behalf of the OP No. 1. On and from March, 2020, COVID-19 pandemic was spread out throughout the country and, ultimately from 22nd March, 2020 the entire country was called for lockdown. OP No. 1, being Senior Surgeon, having advance age, has agreed to treat COVID-19 patients during pandemic and duly treated various COVID-19 patients and did surgery of the COVID-19 patient. OP No. 1 has further stated inter alia that his son is staying in UK and all family members of his son were suffered from COVID-19 and the cousin brother of the OP No. 1 namely, Dr. Sanjay Singh also expired due to COVID-19. The OP No. 1 was not aware about the order dated 16th March, 2020 though all through he was contesting the said proceeding by filing his written version. The OP No. 1 has further stated that the petitioner be granted the chance to file the evidence otherwise, the OP No. 1 will not be able to prove his case as made out in the reply filed by him in the aforesaid case and thereby he will be seriously prejudiced. Therefore, the OP No. 1 has prayed for granting one more chance to file his evidence by modifying the order dated 16th March, 2020.
Ld. Advocate for the complainant has submitted before us that this Commission has no power to alter or modify its own order. Therefore, she has prayed for rejection of the Interlocutory Application.
Upon hearing the parties and on perusal of the Interlocutory Application it appears to us that on 3rd July, 2019 the complainant filed reply and thereafter the date was fixed on 01.11.2019 for filing evidence on affidavit by all the OPs. On 01.11.2019 OPs No. 2 & 3 have filed their separate evidence on affidavit and OP No. 4 has submitted that he would not file any evidence.
Accordingly, the next date was fixed on 20.01.2020 for filing evidence on affidavit by OP No. 1. On 20.01.2020 none appeared on behalf of the OP No. 1. However, the next date was given to OP No. 1 on 16.03.2020 for filing his evidence on affidavit. On 16.03.2020 also none appeared on behalf of the OP No. 1, no evidence was filed by OP No. 1 and no adjournment prayer was made on behalf of OP No. 1. Therefore, this Commission has no other alternative but to close the opportunity to file evidence on affidavit by OP No. 1. Upon perusal of the order-sheets it is evident that OP No. 1 was given ample opportunity to file the evidence on 01.11.2019 , on 20.01.2020 and on 16.03.2020. In spite of availing so much opportunity OP No. 1 neither appeared nor filed evidence on affidavit on three consecutive dates. Now the OP No. 1 has condemned the Ld. Advocate who was engaged by him. Ultimately, this Commission has been pleased to close the opportunity for filing the evidence on affidavit by OP No. 1.
Now, after a long period, OP No. 1 has filed this Interlocutory Application on 10.01.2023 only to drag the matter without taking the opportunity to file the evidence on affidavit in time. Moreover, the OP No. 1 has showed the reason for Covid -19 and staying of his son in abroad and suffering his family members from Covid-19 and death of the cousin brother of the petitioner. No document has been filed in support of the contention of the OP No. 1. Moreover, these reasons are nothing but lame excuse on behalf of the petitioner. The plea taken by OP No. 1 that at that time Covid-19 pandemic has been spread out throughout the country. It appears from the record that on the first date when the OPs No. 2 & 3 filed their evidence on affidavit i.e., on 01.11.2019 there was no dissipation of Covid-19 in our country for which OP No. 1 was prevented from filing evidence on affidavit. Thereafter, also on subsequent dates, no adjournment prayer was made on behalf of the OP No. 1 stating the cogent ground.
Now the OP No. 1 has prayed for granting chance to him to file his evidence modifying the order No. 19 dated 16th March, 2020 passed in this case which is not permissible in law. The District Commission and the State Commission have no power to alter, modify or set aside its own order.
Therefore, the petition is without any sufficient and cogent ground which should be rejected. Moreover, this Commission has no power to modify its own order.
Accordingly, the IA being No. IA/28/2023 be rejected in limine with CP Cost of Rs.2,000/- out of which Rs.1,000/- would be deposited in favour of SCWF and Rs.1,000/- would be paid in favour of the complainant.
Fix 23.02.2024 for final hearing.
BNAs to be exchanged in the meantime.
To date for filing photocopy of money receipt by the OP No. 1 towards CP Cost as aforesaid.
