Per Mr.Justice S.B.Mhase, Hon’ble President

This is a delay condonation application to condone delay of 46 days in filing the appeal.  Main appeal is directed as against an order passed by Central Mumbai District Consumer Disputes Redressal Forum in Misc.application no.16/2009 in consumer complaint no.133/2000.  Order in Misc.application was passed on 28/5/2010.  Thereafter, appeal has been filed on 17/9/2010. According to applicant/appellant certified copy was received in the month of July because it was dispatched by the District Consumer Disputes Redressal Forum on 01/7/2010.  Therefore, there is delay of 46 days in filing the appeal.  Before we consider the case on merits, we would like to place on record that this appeal along with delay condonation application was filed on 17/9/2010.  On the said date Advocate Mr.R.R.Yadav was present and he was given a date 23/9/2010 i.e. today’s date.  He has acknowledged the said date on order sheet, which is signed by the Registrar on 17/9/2010.  Thus, Advocate Mr.R.R.Yadav was/is aware of today’s date and he knows that the case has been fixed for hearing on admission before the State Commission. Today he is absent.  Mr.F.N.Cooper –Advocate appears as proxy and submitted before us that the case may be adjourned because according to his information Mr.Yadav is suffering from Malaria. 

We have come across in many cases that the proxy advocates or the advocates holding for another advocate appear before us.  Our experience shows that the different junior advocates appear on different dates and when we asked the later advocate that why you are not complying with the earlier orders, reply given by the advocate is usual that he was/is not aware of the earlier orders which are/were passed.  This we have realized more in cases where the partnership firms are appearing.  We have also noticed that even the vakalatnama on behalf of partnership firms are not signed by the partners but they are signed by juniors who are not partners of the said firms.  Ultimately, it is noticed that for the safety of a consumer there is no responsible person on record.  Not only that, but in one of the cases, where advocate appeared for the other side made a statement before us that he has instructions to appear in the matter and we directed him to file an undertaking to that effect. He filed an undertaking also and accepted the cost from the other side and, thereafter on the next date onwards he has not filed vakalatnama and, thereafter, he is not turning up to attend the said matter on behalf of other side.  So taking cognizance of all these aspects, we have now insisted that the advocate who appears as holding for, shall produce an authority letter of the advocate who is on record.  This is for the safety purpose and in case if the question arises to fix up the responsibility on a particular lawyer and, accordingly, we have already notified that the proxy advocate shall obtain an authority letter from the advocate on record.  In accordance with the said practice Mr.Cooper has not brought an authority letter with him.

There is another aspect that the High Court of Bombay has framed rules under section 34(1) of the Advocates’ Act.   Under these rules, the advocate is bound to appear before the court on a date fixed.  Said rule also contemplates that for any reasonable cause advocate is not in a position to attend the case on a date fixed, he may instruct another advocate for hearing of the case.  The rule further contemplates that for any reasonable cause, if it is not possible for an advocate on record to appoint any other advocate for the hearing of the case, then, the rule requires that, he may intimate or cause to be intimated in writing to the court and the court thereupon is supposed to adjourn the case for 4 days so that he can make appropriate arrangement of the case.  Here in the present matter, Mr.Cooper is not engaged for the purpose of hearing of the matter.  He is not possessed of the brief also. He only states that advocate Mr.Yadav resides far away but he does not know where he resides.  He further states that he only received a mobile call and therefore, mentioning the matter.  Therefore, we can understand that the case falls in a category that even Mr.Yadav is unable to engage an advocate for hearing purpose and he desires to have adjournment in the matter but however, as per rules, he himself can submit in writing to the court and/or show cause to be intimated in writing to the other agencies.

Mr.Cooper should have come along with letter from Mr.Yadav expressing his reasonable cause for not appearing before the State Commission.  However, no steps in this respect have been taken.  We have noted this, ultimately we find that rules which are required to be followed by an advocate whenever he is unable to attend the case have not been followed and, therefore, we are not inclined to grant time as prayed by Mr.Cooper, because there is nothing on the record which persuades us to believe that Mr.Yadav is sick and suffering from Malaria. 

Apart from that in this case there is a chequered history of absenteeism on the part of the parties. 

This appellant is an original complainant.  Initially, he, for the same reliefs, which were claimed before the Central Mumbai District Consumer Disputes Redressal Forum, filed complaint no.133/2000.  Said complaint was dismissed for default on 13/6/2003.  In the said complaint, M.A.no.16/2009 was filed.  In the said original complaint also Advocate Mr.R.R.Yadav was an advocate as it appears from the vakalatnama dated 17/10/2000.  He and his client remained absent and, therefore, consumer complaint was dismissed for default on 13/6/2003.  Thereafter, misc. application no.16/2009 was filed.  That misc. application appears to have been filed in December 2009.  That will show that said application has been filed after a period of 6 years.  In the said application, it is stated that files were not traceable and he further states that delay may be condoned and prayed that the order dated 13/6/2003 be set aside and complaint be restored. This application was rejected by the District Consumer Disputes Redressal Forum by order dated 28/5/2010.  Therefore, if we consider the case on merits, it will show that in what callous manner advocate and original complainant were prosecuting the complaint. Apart from that if we peruse the provisions of section 13 & 14 of Consumer Protection Act, 1986, District Consumer Disputes Redressal Forum did not have power to set aside the ex-parte order.  Apart from that, a delay which has been caused in preferring such application is more than six years and no reasons have been stated for condonation of such delay.  What is important that, that the said delay for six years is not explained.  There is no explanation as to facts as to who is responsible for such a delay, namely whether the advocate is responsible and if the advocate is responsible, what is the difficulty of the advocate and/or if the complainant is responsible, then what was/is the difficulty of the complainant.  However, complainant is M/s.Gujarat Roadlines, which is a partnership firm according to them and, therefore, since it is a partnership firm, appropriate steps should have been taken by one of the partners of the said firm to file appropriate application immediately.  What was the difficulty of the said firm for a period of six years and earlier to that in not attending to the proceeding is not explained anywhere. Therefore, on merits there is nothing in the case and M.A.no.16/2009 has been rightly rejected by the District Consumer Disputes Redressal Forum. 

Apart from that coming to the present delay condonation application, in this application, it is stated that, “order was collected by my previous advocate Mr.Amit Sharma and the same was handed over to me and accordingly I contacted my present advocate along with the copies of the original complaint, Misc. application, application for condonation of delay and copy of the original order dated 28/5/2010 passed by the District Consumer Disputes Redressal Forum .”

What is important to be noted that when the copies were received by Mr.Amit Sharma is not disclosed. When the copies were received from Mr.Amit Sharma by Mr.Vijaykumar Shaligram Goyal, who is partner of the said firm is also not explained and he further states that he was busy because of preoccupation, and, therefore, case could not be filed.  Now, if the partnership firm is functioning and partners are working, they have time to look after other business of the partnership then it would not be permissible for them to state that appeal could not be filed in time. It is only by this method, dispute which is long back dismissed and lost its merits due to lapse of time of six years, is tried to be revived on flimsy grounds. Advocate Mr.Yadav was initial advocate and in this matter also Mr.Yadav is an advocate. Even when misc.application no.10/2009 was decided by the District Consumer Disputes Redressal Forum, Mr.Yadav-Advocate was not present.  Not only that Mr.Amit Sharma was also not present.  So complaint was dismissed for want of advocate. Restoration application was dismissed for want of advocate.  Therefore, they are accustomed to the practice of remaining absent and then recalling the orders.  What we find that these are the dilatory tactics being followed by the party.  Taking overall view of the matter and looking to the facts and circumstances of the case, we do not find that this is a fit case to grant time.  We find that this a misuse of process of law and, therefore, we reject the delay condonation application.  Resultantly, appeal is also dismissed. Hence the order:-

                                                ORDER

Misc.application for condonation of delay is rejected.

Consequently, appeal is also dismissed.

Copies of the order be furnished to the parties.