HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The present appeal has been filed with a delay of 260 days.

2. Along with the appeal an application for condonation of delay has been filed.

3. In the application the reason for the delay in filing of the appeal is that the appellant No. 1 is the proprietor of the appellant No. 2. The appellant No. 1 during the pendency of the case was attacked by Covid 19 and for a considerable time he was hospitalized and due to Covid 19 he was suffered with other old age ailments and could not contact the Learned Advocate and after 04.02.2021 there was no communication with the conducting Advocate with the appellants despite best of his endeavour and on 02.12.2022 the appellant No. 1 came to learn that the said complaint case was dismissed by an order dated 04.03.2022 in the instant appeal. When the summon was served upon him in execution application No. 58/2022 being an application for execution of the impugned order dated 14.03.2022. Only the cause shown for the delay is that the appellant No. 1 is the proprietor of the appellant No. 2. The appellant No. 1 fell sick due to Covid 19 and failed to inform the Learned Advocate and could not contact with his Learned Advocate.

4. On perusal of the application for condonation of delay and the medical papers filed by the appellants it appears to me that the impugned order was passed on 14.03.2022. From the xerox copy of medical papers it is found that after 14.03.2022 the appellant No. 1 became ill on 29.03.2022, 11.09.2022 and 08.11.2022. If it is assumed that the appellant No. 1 was ill on 29.03.2022, 11.09.2022 and 08.11.2022 what prevented the appellant No. 1 appearing before the Learned Advocate and what prevented the appellant No. 1 and his Learned Advocate to file the appeal in proper time. Admittedly, except the dates 29.03.2022, 11.09.2022 and 08.11.2022 the appellant No. 1 was not suffering from any ailments before 07.01.2023 i.e. the date of filing of the appeal. Moreover, prescriptions dated 29.03.2022, 11.09.2022 and 08.11.2022 go to show that there is no whisper in the said prescriptions that the Doctor who treated the appellant No. 1, advised to take complete bed rest of the appellant No. 1 for the period from 14.03.2022 to 17.01.2023 and that the appellant No. 1 was bedridden and was not able to move. So, the ground for condonation of delay is that the appellant No. 1 was suffering from different ailments and for that reason could not contact with his Learned Advocate is not believable and acceptable.

5. I think that the said plea has been taken by the appellants only to get rid from the execution application filed by the respondents being No. EA/58/2022. Therefore, cause shown is not sufficient and convincing.

6. The Hon’ble Apex Court in Ram Lal and Ors.  – Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has observed as under :-

“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 suffcient 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 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.”

7. The Hon’ble Supreme Court in another case of R.B. Ramlingam vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), has stated that a court has to apply the basic test while dealing with the matters relating to condonation of delay, whether the Petitioner has  acted with reasonable diligence or not. The court has held as under :

“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.”

8. In another case reported in (2011) 14 SCC 578 ( Anshul Aggarwal vs. New Okhla Industrial Development Authority ),  the Hon’ble Apex has held that the special nature of the Act has to be kept in mind while dealing with the special period of limitation prescribed therein.

9. The Hon’ble court has further held as under :

“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 Fora.”

10. In view of the above decisions and under this facts and circumstances, I find no sufficient ground to condone the inordinate delay of about 260 days. The present appeal is nothing but an attempt to abuse the process of law.

11. The application for condonation of delay is accordingly dismissed.

12. The appeal is, thus, dismissed being barred by limitation without being admitted.

13. The appeal is, thus, disposed of accordingly.