Order No. 6 date: 03-06-2015

Sri Debasis Bhattacharya

Today is fixed for passing order in respect of the delay condonation petition filed by the Appellant.

By such petition, it is stated by the Appellant that although the impugned order was passed on 28-07-2014, it was communicated to her by the conducting Ld. Advocate only on 20-08-2014.  After going through the same, she asked the Ld. Advocate to obtain certified copy for the purpose of moving an appeal.  Meanwhile, representative of the Appellant fallen sick of a disease, namely, herpes zoster, for which she was advised bed rest from 07-10-2014 to 22-10-2014, and so, she was not in a position to constantly enquire about the update regarding collection of certified copy from her Ld. Advocate.  However, in spite of lapse of more than a fortnight, the Appellant did not receive any communication from the concerned Ld. Advocate.  The Appellant also failed to obtain copy of the pleading filed on her behalf in the Ld. District Forum.  Thereafter, the Appellant made contact with Ms Madhurima Mukherjee, Ld. Advocate and with her help, on 09-09-2014, she applied for certified copy of the impugned order and copies of pleadings, which was received on 22-09-2014.  After obtaining the same, the Appellant asked the said Ld. Advocate to prepare memorandum of appeal.  However, meanwhile, because of long vacation in the Hon’ble High Court, the said Advocate was not available for personal reasons.  Ultimately, the instant appeal was finalised on 29-10-2014 thereafter, filed before the Commission. 

Ld. Advocate for the Appellant has submitted that due to negligence on the part of the Advocate on record before the Ld. District Forum, a considerable time got lapsed in moving the appeal.  In between, illness of the Appellant also confined her to bed for which she could not properly liaison with her Ld. Advocate and lastly because of non-availability of Ld. Advocate during Puja vacation, it took some time more to prepare Memo of Appeal and other relevant papers.  All the reasons, which contributed to the delayed filing of the instant appeal, were beyond her personal control and therefore, such unintentional delay be condoned in the best interest of justice.

Ld. Advocate for the Respondent No. 1 has submitted that there is hardly any merit in the instant petition and therefore, the same be rejected.

Ld. Advocate for the Respondent No. 3 also echoed the Respondent No. 1 and prayed for dismissal of the instant petition.

The Appellant has primarily blamed her erstwhile Ld. Advocate for such inordinate delay in filing the instant appeal.  However, we cannot be oblivious of the fact that mere allegation against anyone behind her back does not prove anything.  It is not the case of the Appellant that throughout the entire proceedings before the Ld. District Forum, the conducting Ld. Advocate had shown similar lethargy in dealing with the case.  Now, why he/she would all on a sudden develop cold feet post-delivery of the final order and ill-treat her client does raise eyebrows.  Be that as it may, very recently the Hon’ble National Commission in its celebrity order reported in 2015 (2) CPR 226 (NC) has observed that fault on the part of the Ld. Advocate is no ground for condonation of delay.

Also, on going through the impugned order it transpires that it was a contested case.  So, it is but natural that the Appellant was fully aware of the ‘D-day’.  Even for the sake of argument if it is assumed that the concerned Ld. Advocate did not extend due co-operation to the Appellant, nowadays, daily as well as final orders of Consumer Fora being available on internet, there would hardly be any taker to buy such an argument that the Appellant was not aware of the day to day developments and final outcome of the case; more so, when copies of correspondence exchanged between the Appellant and the Respondents sufficiently proves that she is computer savvy person and has regular access to internet. 

Further, it is the settled position of law that day-to-day explanation should be there to justify delayed filing of case/appeal which is most surprisingly missing in the instant petition.  Admittedly, the Memo of Appeal was finalized and affirmed on 29-10-2014, but no explanation is there in the instant petition as to why it took eight days for the Appellant to ultimately file the appeal before this Commission on 07-11-2014.

To sum up, the grounds assigned behind such belated filing of the instant appeal with a huge delay of 60 days (excluding the statutory period of limitation 30 days) is not at all tenable. Hence, such prayer is rejected, but without any order as to costs.  Consequently, the instant appeal stands dismissed being barred by limitation.