HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 15 of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order and judgment dated 02.08.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-III (South) (in short, ‘the District Commission’) in connection with consumer case No. CC/231/2018.

2. Along with the appeal an application for condonation of delay has been filed by the appellant. The office has submitted a report that this appeal has been filed with a delay of 39 days.

3. Heard the Learned Advocate appearing for the parties and also carefully perused the application for condonation of delay. Learned Advocate appearing for the appellant has submitted that the delay in filing the appeal is not willful and the case needs to be heard on merits as the appellant has a strong case.

4. Learned Advocate appearing for the appellant has further urged that the party cannot be made to suffer for fault of his Advocate. On the other hand, Learned Advocate appearing for the respondents has urged that the application for condonation of delay should not be allowed and it should be dismissed as because the appellant did not take proper steps in time to file the present appeal.

5. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that in the application the reason given for the delay in filing of the appeal is that the Learned Advocate who was engaged to deal with the case on behalf of the appellant intimated the appellant about the fate of the complaint case on 18/08/2023 and thereafter, the appellant met on two occasions with his Learned Advocate to discuss about what to be done after disposal of the case. Learned Advocate suggested the appellant that this complaint case being a complicated matter, he advised to appoint an Advocate who is well versed with the medical negligence matter before the State Commission. Thereafter, the appellant contacted Ms. Sanhita Shaoo, Advocate to file the appeal before the State Commission.

6. On careful perusal of the record and on consideration of the grounds of delay in filing of the instant appeal it is found that the present instant complaint case was filed against the appellant and others for medical negligence. So, the complainant and his erstwhile Advocate had full knowledge and well conversant with the case. So, the appellant and his erstwhile Advocate discussed about what to be done, is nothing but an attempt to mislead the Commission. Therefore, I find that the grounds of delay as mentioned in the application for condonation of delay is not believable and acceptable. The cause shown is not, therefore, sufficient.

7. 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 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.”

8. 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.”

9. 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.

10. 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.”

11. The Hon’ble Supreme Court has held in a case reported in 2022 Livelaw (SC) 430 – ( State of UP Vs. Satish Chand Shivhare ) that once an appeal is found to be barred by limitation, there can be no question of obligation of the Court to consider the merits of the case of the appellant.

12. Under these facts and circumstances and on careful perusal of the materials on record it appears to me that the appellant has failed to explain day to day delay in filing the instant appeal. Accordingly, I may conclude that the appellants have failed to prove sufficient cause or justify the delay in filing the present appeal.

13. The Learned Advocate for the appellant in support of her argument has relied on the judgments reported in 1981 AIR (Supreme) 1400, 1987 AIR (Supreme) 1353, 1999 AIR (Supreme) 1630, 2023 INSC 651, 2015(1) RCR (Civil) 920, 2000 (10) SCC 174. However, reliance on these 6 judgments in the adjudication of the case, facts being at variance, would be misplaced.

14. In the result, the submission of the Learned Advocate appearing for the appellant that due to fault of the Learned Advocate there is some delay in filing of the appeal is nothing but an attempt to mislead the Commission.

15. In view of the above, I find no sufficient ground to condone the delay of 39 days. The present appeal is nothing but an abuse of the process of law. The application for condonation of delay is, accordingly, dismissed. The appeal is dismissed being barred by limitation without being admitted.

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