1. This revision has been filed under section 58(1)(b) of The Consumer Protection Act, 2019 in challenge to the impugned Order dated 22.02.2023 passed by the State Commission in appeal no. 216 of 2023 arising out of the Order dated 29.11.2022 of the District Commission in complaint no.189 of 2022. 2. Heard the learned counsels for the petitioner and for the respondent. Perused the record including inter alia the impugned Order dated 29.11.2022 passed by the District Commission, the impugned Order dated 22.02.2023 passed by the State Commission and the memo of petition. 3. The relevant facts germane to the petition appear to be like this. The complaint in question was filed before the District Commission. The notice was issued which stood served on 31.08.2022. The matter was next fixed before the Commission on 15.10.2022. On the same date, appearance was put in and the written version was filed on behalf of the respondent / opposite party. As the written version was filed beyond 30 days, the application for extension of time / condonation of delay was also filed along with it but the same was rejected by the District Commission vide its Order dated 29.11.2022. 4. Feeling aggrieved by the same, the appeal was filed before the State Commission by the respondent / opposite party. The appeal was allowed and the Order dated 29.11.2022 passed by the District Commission whereby it refused to take the written version on record, was set aside. The State Commission was of the view that the notice was served on 31.08.2022 and if 45 days are calculated form then it will end on 15.10.2022. According to the State Commission, the written version was filed along with application seeking permission to bring it on record on the last permissible day i.e.15.10.2022. According to the State Commission, the District Commission could and should have accepted the written version to be taken on record by allowing the application moved by the respondent / opposite party. Now the complainant has filed the present petition in challenge to the impugned Order dated 22.02.2023 passed by the State Commission allowing the written version to be brought on record. 5. Learned counsel for the petitioner / complainant has argued that the District Commission had passed its Order on 29.11.2022 while the appeal against the same was filed by the respondent / opposite party on 04.02.2023 with some delay. Submission is that the State Commission has proceeded to pass the impugned Order without considering the issue of delay and without condoning the delay in filing the appeal. Submission is that this omission of the State Commission is a jurisdictional error. The State Commission could have assumed the jurisdiction to pass any order only after condoning the delay which it did not. According to the learned counsel, the impugned Oder on this very ground becomes unsustainable having been passed without jurisdiction. It has also been submitted that in the Consumer Protection Act the word ‘from’ has not been used while laying down the period within which the written version can be filed. Attention was drawn to the relevant portion of Section 38(3) (a) of the Consumer Protection Act, 2019 which reads as follows: “Section 38 xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx (3) The District Commission shall, if the complaint admitted by it under sub-section(2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be flowed, or if the complaint relates to any services,— (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not extending fifteen days as may be granted by the District Commission;” According to the learned counsel in the absence of the word ‘from’ in the relevant context of the Act the date on which service has been effected on the opposite party should be included and not be excluded from being counted for the purpose of counting the period of 30 days or 45 days as the case may be. It has been argued that the State Commission has wrongly excluded the day of service while counting the prescribed period within which the written version had to be filed. It has also been argued that the District Commission had passed its Order on 29.11.2022(whereby it refused to take the written version of the opposite party on record after hearing both the sides). The State Commission at the admission stage itself allowed the appeal of the opposite party without even issuing notice to the petitioner. Submission is that though there may be circumstances in a given case which may justify such an expeditious course of action but ordinarily in a matter like this which is at hand opportunity of hearing must have been granted to the petitioner to make its submission in this regard before allowing the appeal. 6. Learned counsel appearing for the respondent / opposite party has submitted that in Section 38 of the Consumer Protection Act there is nothing written on the basis of which the date of service should be counted towards calculating the period of limitation for filing the written version. It has also been submitted that the Apex Court’s decision given in New India Assurance Vs Hilli Multipurpose Cold Storage Pvt. Ltd (2020) 5 SCC 757 has taken the view to strictly adhere to the period of 45 days within which the written version has to be filed and not to extend the period beyond 45 days because there is no legal provision to extend this period. According to the learned counsel the Hon’ble Apex Court while giving its decision has also taken note of the fact that with regard to the delay which may be involved in filing a complaint belatedly in a given case or the delay involved in filing the appeal belatedly or the delay that may be involved in filing the revision petition, there are provisions whereby the Commission has been vested with the power to condone the same if there is a sufficient cause or valid reasons available to explain the same. No such provision to condone or extend the period to file the written version has been provided in the Act which makes the period of 45 days legally sacrosanct and by imposing some cost or by imposing some terms and conditions this period cannot be extended any further. But that does not mean that the Apex Court’s decision given in Hilly Multipurpose case (supra) should also be taken to imply that the period of 45 days or 30 days itself should be counted in a manner which may be restrictive in nature and circumscribing in its import. The proper view of interpretation would require that the ordinarily way of calculation has to be brought into application. It has also been submitted that if we go by the ordinarily ways in which ordinary course of business takes place it is a common happening that after a particular correspondence reaches a company’s office in the evening hours it is more likely to be opened up on the next day only. It has also been submitted that the District Commission had fixed the next date of appearance / hearing on 15.10.2022 which also implied that in its own calculation also the period of 45 days were deemed to expire on 15.10.2022 and not before it. On this very date, the appearance was put in on behalf of opposite party and the written version along with application seeking permission / extension of time / condonation of delay was filed in that regard so that the written version could be taken on record. Yet the District Commission for no good reason refused to take written version on record. According to the learned counsel, there is no good reason to justify the District Commission’s Order passed in this regard just as there is no good criticism to assail the order passed by the State Commission, which set the District Commission’s Order right. 7. Having considered the submissions made at the bar it may be observed that at this stage, the Bench would restrain to express any final opinion about the correctness or otherwise of the view taken by the State Commission even though prima-facie it feels that the submission made by the respondent’s counsel does not appear wholly without substance or entirely without a clue. The Bench abstains to enter into further discussions on merits in this regard or formulate its final opinion in that context, but it does not find any good rebuttal from the side of the respondent with regard to the first limb of the argument raised by the petitioner’s counsel relating to the legal omission committed by the State Commission to condone the delay. 8. It is relevant to refer to the statutory provision pertaining to the limitation period to file an appeal against an order / judgment which is enshrined in Section 15 of The Consumer Protection Act, 1986. The same is reproduced below for ready reference: “15.Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed. Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not fling it within that period: ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- It may also be relevant to refer to Section 41 The Consumer Protection Act, 2019 which is the statutory provision pertaining to the limitation period to file an appeal before the State Commission against an order / judgment of the District Commission which reads as follows: 41. Appeal against order of District Commission.—Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed: Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period: ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- 9. It does not need much elaboration on this point and the position of the law in this regard is trite that the appeal has to be filed within the prescribed period of limitation and the appellate court would not have any jurisdiction to entertain the appeal if the same was filed after expiry of the limitation period.
Of course the legislation in its wisdom has taken care of such situations were an appeal etc. may not have been filed within prescribed period of time. With regard to the appeals filed with delay, the judicious discretion has been vested with the Commissions to condone the same, if it may be shown that there was ‘sufficient cause’ behind such delayed filing. Unless the appellate forum exercises its judicious discretion in this regard and arrives at its finding about the sufficiency of which may deserve the condonation of delay, the appellate forum cannot straightway start hearing the appeal and the same would be clearly an illegal outreach. While saying so this Commission must not be misconstrued to imply that the delay involved in the matter was such which could not have been condoned or that there was no ‘sufficient cause’ to condone the same. The cause could have been well sufficient and the delay could have well deserved the condonation in the facts and circumstances of the case, but this finding and this order must have preceded the order that has been passed in the main appeal. Afterall it was primarily the State Commission’s jurisdiction to look into this aspect and arrive at its own view. 10. In this view of the matter as discussed above the impugned Order becomes legally unsound and unsustainable. The instant revision petition is thus allowed and the impugned dated 22.02.2023 passed by the State Commission stands set aside. The matter is remitted back to the State Commission with request to decide the question of condonation of delay in filing the appeal first and then to proceed further in accordance with law and decide the appeal after affording opportunity of hearing to both sides. 11. The parties are directed to appear before the State Commission on 07.08.2024. 12. The Registry is requested to send a copy each of this Order to the parties in the Petition and to their respective learned counsels as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days. | 
