Order on delay condonation application in moving the substitution application (Paper Nos. 60 to 61)

1.       An application for condonation of delay dated 26.02.2024 (Paper Nos. 60 to 61) was moved on behalf of the appellants, with a prayer that while granting the benefit of Section 5 of the Limitation Act, 1963, the substitution application dated 28.07.2023 (Paper No. 52) moved by one Sh. Saurabh Khokhar, be allowed.  The application for condonation of delay is supported by affidavit of Sh. Saurabh Khokhar (Paper Nos. 62 to 63).

2.       In the application for condonation of delay, it has been stated that the applicant – Sh. Saurabh Khokhar, for the first time, came to know about the instant appeal on 22.07.2023, when Sh. Shree Gopal Narsan, Advocate, contesting the appeal on behalf of the appellants, visited the house of the applicant and informed about the appeal and the said Advocate asked the applicant to bring death certificate and Aadhaar Card of the deceased.  On 28.07.2023, the applicant visited the court at Roorkee along with requisite documents and thereafter substitution application dated 28.07.2023 was moved.  There is no intentional delay in moving the substitution application.  It has been prayed that the benefit of Section 5 of the Limitation Act, 1963 be extended and substitution application dated 28.07.2023 be allowed.

3.       The respondent filed objections dated 25.07.2024 (Paper Nos. 65 to 66) against the delay condonation application, stating therein that no sufficient reason has been given by the applicant in application for condonation of delay.  On 06.04.2023, learned counsel for the appellants has apprised about the demise of appellant No. 1 – Rouqe Khokhar.  It has been prayed that the application for condonation of delay is liable to be dismissed with costs.

4.       We have heard learned counsel Sh. Shree Gopal Narsan on behalf of the appellants as well as learned counsel Sh. Arjun Sirohi on behalf of respondent through video conferencing, on the delay condonation application in moving the substitution application and perused the record.

5.       There is no dispute that the deceased – appellant  No. 1 late Rouqe Khokhar expired on 30.12.2022, as would be evident from the copy of his death certificate (Paper No. 54).  The present appeal was filed by the deceased – late Rouqe Khokhar during his lifetime, appellant No. 1 along with his wife – Smt. Uma Khokhar, who was impleaded as appellant No. 2.  Thus, the appellant No. 2, the wife of the deceased – appellant No. 1, had full knowledge about the appeal, being one of the appellants. 

6.       The period for moving the substitution application has been prescribed as 90 days’ from the date of death of a party.  A perusal of the order-sheet shows that on 06.04.2023, learned counsel for the appellants apprised the Commission about the death of appellant No. 1.  As is stated above, the appellant No. 1 expired on 30.12.2022.  Neither in the substitution application, nor in the delay condonation application, the aforesaid fact finds place.  It is pertinent to mention here that the substitution application was not moved within 90 days’ even from 06.04.2023 and the same came to be filed on 28.07.2023.  The substitution application was also not supported by affidavit and the supporting affidavit (Paper No. 57) was submitted on 06.11.2023, i.e., after three months’ of moving the substitution application, which shows total carelessness on the part of the appellants.

7.       It is important to note that the substitution application as well as delay condonation application have been moved by Sh. Saurabh Khokhar and not by appellant No. 2 – Smt. Uma Khokhar. 

8.       It would not be out of place to mention here that no application has been moved on behalf of the appellants for setting aside the abatement, as for not moving the substitution application in time, the appeal already stands abated.  Even otherwise, no sufficient cause or reason has been assigned by the applicant – Sh. Saurabh Khokhar for condonation of delay in moving the substitution application.

9.       For the reasons aforesaid, the application for condonation of delay dated 26.02.2024 in moving the substitution application (Paper Nos. 60 to 61) is hereby rejected.  As a consequence thereof, the appeal stands dismissed, as having been abated.  No order as to costs.

10.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

11.     File be consigned to record room along with a copy of this Order.