Haryana

StateCommission

A/495/2015

SUDERSHAN KUMAR - Complainant(s)

Versus

HUDA - Opp.Party(s)

GOVIND CHAUHAN

06 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.495 of 2015

Date of Institution: 01.06.2015

Date of Decision: 06.02.2017

 

Sudershan Kumar S/o Mehar Chand Lamba, R/o Ward No.5, Indri,Tehsil Indri, Distt. Karnal.

…..Appellants

 

Versus

 

1.      Estate Officer, Haryana Urban Development Authority, Karnal, District Karnal.

2.      Rajinder Kumar @ Rajinder Mehta S/o Roshan Lal, R/o Raj Jewellers, Sarafa Bazar, Karnal,Tehsil and District Karnal.

…..Respondents

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri Sudershan Kumar appellant in person.

Mr. Saurabh Sharma, Advocate counsel for the  respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:-

          This appeal has been filed by third person against impugned order dated 15.04.2008 passed in complaint No.193 of 2006 filed by respondent No.2 Rajinder Kumar.

2       Appellant has filed an application under section 5 of the Consumer Protection Act of 1986 (In short “Act”) for condonation of delay  of 2572 days in filing of the appeal, wherein it is alleged that he was not aware about the filing of complaint filed by Rajinder Kumar before District Forum, Karnal as well as impugned order dated 15.04.2008. In the month of May, 2015 he came to know from one of his well wisher that plot in question was transferred in the name of Rajinder Kumar by O.ps.  The delay is not intentional  or deliberate  and the same be condoned.

3.      Arguments heard. File perused.

4.      Learned counsel for the appellant vehemently argued that he was not a party before the District forum and one well wisher told him in the month of May 2015 that plot in question was transferred in the name of Rajinder Kumar by HUDA. Thereafter he obtained copy and filed this appeal. The delay is not intentional and be condoned.

5.      This is not proper explanation about delay.  It is no-where alleged specifically that who was the well wisher who told him about the transfer of plot in question in  favour of complainant. The application is vague and  indefinite and cannot be relied upon.  It is well settled preposition of law if delay is not properly explained the same cannot be condoned.

6.      A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

7.       The inordinate delay of 2572 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

 

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “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.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“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 sufficient 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.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In (2012) 3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd. and Anr. Hon’ble Apex Court has not condoned delay in filing appeal even by Government department and observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed 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 Foras”.

 

8.      On merits, it was alleged by complainant-Rajinder Kumar alias Rajinder Mehta S/o Sh.Roshan Lal that Prem Lata General Attorney of Sudershan Kumar(appellant), sold plot in question to him vide sale deed dated 10.02.2005.  Lateron Sudershan Kumar and his GPA Prem Lata became dishonest and to extract more money filed  a civil suit against him and OP before civil court to restrain Estate Officer HUDA Karnal from transferring plot in dispute in his name  (i.e. Rajinder).  No relief was granted to him in that matter. So O.P. be directed to transfer the plot in his name.

9.      Estate Officer filed reply alleging that the matter was pending before civil court and the complaint be dismissed.

10.    After hearing both the parties learned  District Consumer Disputes Redressal Forum, Karnal (in short “District Forum”) allowed the complaint and directed as under:-

“In view of the above, refusal of OP to transfer the plot in question in favour of the complainant on these grounds is not justified and shows unfair trade practice and deficiency in service on its part. The original allottee is also stopped by his own acts and conduct to challenge the transfer permission. Accordingly, we direct OP to transfer the plot in question in favour of the complainant within a period of 30 days of the receipt of copy of this order.”

11.    Feeling aggrieved therefrom Sudershan Kumar has preferred this appeal on the ground that impugned order be set aside because he was real owner of the plot in question, but, was not impleaded as a party. As his right is going to be effected he has a right to file appeal even if he was not a party  before Ld. District Forum. So impugned order be set aside and complaint filed by respondent Rajinder Kumar be dismissed.

12.    Learned counsel for the appellant vehemently argued that when his right is going to be effected he has every right to file appeal even if he was not a party before District Forum and appeal is very much maintainable. The impugned order was obtained behind his back and the same be set aside.

13.    This argument is devoid of any force. When appellant was not a party in the matter, which was pending before District Forum, he has no right to file an appeal. More so it is clear from the documents available on the file that he filed civil suit NO.370 of 2009 before the civil Court for declaration to the effect that he was owner in possession of plot in question and to restrain Prem Lata  from acting on the basis of cancelled GPA and not to act upon the sale deed dated 10.02.2005, because the same was executed on the basis of revoked GPA.  The said suit was dismissed by civil court vide order dated 01.04.2010.  Appellant filed appeal No.193 of 2010 before appellate court which was dismissed vide order dated 26.07.2012. During the arguments it was admitted that second appeal filed before Hon’ble High court by appellant has also been dismissed. When the matter has already been adjudicated upon on the civil side upto Hon’ble High court Sudarshan Kumar has no right to file this appeal. 

14.    Taking into account the pleas raised by the appellant in the application for condonation of delay and the settled principle of law that if case is not good on merits delay cannot be condoned, this Commission does not find it a fit case to condone delay of 2572 days in filing this appeal. Hence, application filed for condonation of delay is dismissed.

15.    Resultantly, appeal is also dismissed.

February 06th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.