Per Mr. Justice S.B.Mhase, Hon'ble President:

These appeals arise from the decision of complaint nos.115 and 116/2008 and 121/2008 decided by Additional District Consumer Disputes Redressal Forum, Thane on 27/02/2009.  It appears that since common point is involved in all the complaints. The complaints were allowed and therefore, org.opponent is the appellant before State Commission.  As against complaint no. 115/2008, Appeal No. 967/2009 has been filed while A.No.968/2009 has been filed against complaint no.116/2008 and A.no.969/2009 has been filed against complaint no.121/2008.  The respondent no.1 in Appeal no.967/2008 is one Mr.Govind Sadashiv Lad, who is a complainant in complaint no.115/2008 and Mr.Nikhil D.Khosla is the respondent/org.complainant in A.No.968/2009 and Mrs.Chandravati R. Chauhan is the respondent in A.no.969/2009.  Even though judgement in complaint no.115 & 116/2008 is common, three separate appeals have been filed.

        In filing these appeals, there is delay of 87 days and therefore, M.A.No.1154/2009 is filed in A.no.967/2009 and M.A.No.1156/2009 is filed in A.no.968/2009 are filed and M.A.No.1158/2009 is filed in A.No.969/2009.  These appeals were listed for admission and hearing on delay application on 03/12/2009 and to that effect Mr.A.Z.Mookhtiyar  has acknowledged the order sheet of State Commission.  On 27/10/2009 the appellants appeared before the State Commission and the State Commission passed order issuing notices to the respondents before admission and ad-interim stay was granted to the impugned order till returnable date. There was no stay granted in A.No.969/2009. The returnable date for all appeals  was 01/03/2010 and the point of limitation was kept open.  It appears from the order sheet that on 01/03/2010 due to holiday the matter could not be heard and board was discharged and matter was adjourned to 22/04/2010.  On 22/04/2010 it was found that only notice of appeal was served on the respondent.  However, the copy of the delay condonation application was not served on the respondent.  So also the copy of stay application was given in the presence of State Commission.  Therefore, time was granted so that respondent can file reply to these and it was adjourned to 07/07/2010.  On 07/07/2010 the advocate for the respondent was present, advocate for the appellant was not present; however, the appellant himself was present.  He reported that Mr.A.Z.Mookhtiyar is not available and therefore, he wants to withdraw his vakalatnama and he has filed the application to that effect.  A letter of Mr.A.Z.Mookhtiyar has been placed on record wherein said advocate has informed to engage another advocate.  Therefore, having found that appellant is present; under these circumstances we adjourned the matter to 28/09/2010 so that appellant can engage the advocate and conduct the case.  However, when today the appeal is called neither the appellant nor the newly engaged advocate of appellant, if any is present before us.  No one reports the difficulty of the appellant.  Under these circumstances, we are constrained to proceed in the absence of parties.  It is required to be noted that even Adv.Sharma for the respondent is absent and clerk from his office/Mr.Vishal Mane reports that advocate has gone to Karnataka, since his brother has expired.  However, respondent’s absence need not detain us from proceedings in the matter.

        Admittedly, this case has been decided by District Consumer Disputes Redressal Forum on 27/02/2009 and copies were received by the appellant on 29/03/2009.  However, from the postal packet which is on record, we find that it has been received on 22/03/2009 and not on 29/03/2009.  Therefore, there will be delay of 90 days in stead of 87 days. 

        The appellant has stated in the application that in order to file appeal he required roznama and for said purpose he gave an application on 19/04/2009 and copies were received by him on 23/04/2009.  In fact, he has received copy of order and judgment from the postal authorities on 29/03/2009.  As per his contention if he desired to have roznama, he should have filed an application for the same.  He has not given any explanation  as to why up to 19/04/2009 he could not make application for getting certified copies of the roznama if, he desired those copies for the purpose of appeal.  What is important to be noted is that, that even if we assume that statement made by the appellant is correct that he received copies of roznama on 23/04/2009, then it was possible for him to file the appeal within period of limitation because the last date for filing appeal is 22/05/2009 and earlier to that copies of rozanama were received by him on 29/03/2009.  However this is ascertained because this has all happened, taken place during the period of 30 days.  In fact, the appellant is under obligation to explain the delay which has taken place after 30 days.  If the appeal could have been filed within 30 days, the incidence of facts which have taken place within 30 days are at no consequence  for condonation of delay.

        He has further submitted in delay condonation application that after he gave an application on 19/04/2009 for getting copies of rozanama, he was called by the President in his chamber and after ascertaining that what purpose he required copies, the copies were given to him.  The appellant states that thereafter he gave instructions to prepare the appeal.  However, the appellant could not file the present appeal earlier as the appellant fell ill and could not go and meet his advocate to give any further instructions. What we find is that after perusal of the record, the date on which the appellant instructed the advocate is not disclosed, so also the date on which the appellant fell ill and when he recovered is not disclosed.  There is no supporting medical certificate or discharge card of hospital on record to show that appellant was ill for a particular period. 

Appellant thereafter stated that he started his work on 18/06/2009 on which date he had to go to attend the hearing of other cases filed against him by other persons.  However, the appellant had to immediately rush back home as his mother fell seriously ill and there was no other person to attend her.  According to him, his mother was hospitalized for her illness from 29/03/2009 to 17/04/2009 and thereafter, he went out of India from 22/05/2009 to 10/06/2009 for attending other legal cases and urgent business matters which could not be postponed. It is interesting to note that from 29/03/2009 to 17/04/2009 if the mother of the appellant was ill, he should have produced a certificate to that effect of a Doctor.  Said certificate is not produced on record.  Assuming for a moment that his mother was ill and she recovered on 17/04/2009 and appellant has left the India on 22/05/2009, what was the difficulty of the advocate from 17/04/2009 to 22/05/2009 has not been explained.  In fact, in this period the appeal could have been filed.  However, no explanation in this respect is given on record.  The appellant’s statement that he returned on 10/06/2009 to India and on his return he has submitted that his mother has again fell ill and there was no one in his family to attend her and therefore, he could not file appeal.  However, he categorically states that appellant had to attend other cases in Navi Mumbai and at the same time also required to rush back to his house to attend his mother due which fact the appellant could not file the present appeal.  While his mother was in Navi Mumbai what was his difficulty to instruct the advocate to file appeal is not disclosed so also he has stated that he has started the work on 18/06/2009 but he attended the other work.  In short, on going through the application we have noticed that ample and sufficient time was available to the appellant for filing the appeal.  However, no explanation is coming forward in this respect.   

Under these circumstances, probably realizing these difficulties in his way he has preferred to remain absent today so that if the matter stood dismissed for default, the restoration application can be filed and the matter can be made alive and/or it can be admitted by taking it to another Bench. In the facts and circumstance of the case, we are rejecting the application for condonation of delay and pass the following order:-

                                        :-ORDER-:  

1.           M.A.nos.1154/09, 1156/09 and 1158/2009 for condonation of delay stands rejected.

2.           Consequently, A.no.967/2009, 968/2009 and 969/2009 does not survive for consideration.

3.           No order as to costs.

4.           Copies of the order herein be furnished to the parties.