ORDER NO. 3 DT. 15.2.12

MR. S.COARI, LD. MEMBER

The record is placed today for passing necessary orders in respect of an application for condonation of delay in filing the present Appeal, which has been filed out of time by about 478 days from the date of passing of the impugned order.

The case of the Appellant/Petitioner, in brief, is that the complaint case before the Ld. District Forum was disposed of ex parte without service of summons upon the Appellants/OPs.  According to the Appellant/Petitioner, as and when the petitioner came to know about the ex parte hearing date the Ld. District Forum was requested not to pronounce the order.  But unfortunately, the same was not considered and the complaint case was disposed of ex parte against the Appellant/Petitioner.  Thereafter the Appellant/Petitioner filed a Misc. Application for setting aside the ex parte order and the same was also dismissed on 27.7.11.  According to the petitioner, thereafter the petitioner fell sick and was bedridden and was prevented from taking appropriate steps in the matter of preferring an Appeal against the ex parte order.  However, after facing great problems and putting much efforts, the said petitioner, who is a man of humble means, was successful in locating the chamber of the Ld. Advocate at Kolkata, with whose help the present Appeal has been filed.  But in the process, 478 days elapsed, for which the Appellants should not be penalized and held responsible and hence, the application for condonation of delay.

At the time of hearing it has been submitted on behalf of the Appellant/Petitioner that the Appellants were prevented by sufficient cause from preferring the present Appeal, which is out of time by 478 days.  According to the Ld. Advocate for the Appellants, the Appellants, who happen to be the residents of Burdwan with humble means, found it extremely difficult to come to Kolkata and appoint a suitable advocate for the purpose of preferring the present Appeal and that in the meantime, one of the Appellants, who happens to be sole tadbirkarak, fell seriously ill and was confined to bed for considerable time.  Due to such hazardous situation faced by the Appellants, a considerable amount of time has elapsed and ultimately after a lapse of 478 days the Appeal could be filed.  There is no intentional laches on the part of the Appellants in preferring the present Appeal after such delay, which should be condoned thereby affording opportunities to the Appellants to contest the case, which has been decreed ex parte without service of summons upon the Appellants.  The Ld. Advocate for the Respondents has seriously opposed the submissions so put forward on behalf of the Appellants and has submitted before us that the Appellants are solely responsible for the abnormal delay and in the absence of any cogent and bonafide reasons and sufficient cause the same should be rejected. 

We have duly considered the submissions so put forward on behalf of both sides and having considered the facts and circumstances of the case and the explanations given in the petition for condonation of delay are of the considered opinion that the explanations given in the petition for condonation of delay are not acceptable.  There is practically no bonafide explanation given in the application so as to presume that the Appellants were prevented by sufficient cause from preferring the present Appeal within the statutory period.  Having considered the present matter in the light of above discussions we find no merit in the application for condonation of delay and the same is liable to be dismissed.

Hence, it is ORDERED that the application for condonation of delay stands dismissed on contest without any order as to cost.  Consequently the Appeal stands dismissed being barred by limitation.