1.       This revision petition has been filed under Section 21(b) of the Act 1986 in challenge to the 03.07.2019 in Miscellaneous Case No. M/143/2019  and 18.07.2012 in Appeal No. 1231/2004 of the State Commission Uttar Pradesh arising out of the Order dated 22.10.2003 of the District Commission in Complaint no. 258 of 2001.

2.       Heard the learned counsel appearing for the petitioners and also learned counsel for the respondents  and have perused the record including inter alia the Order dated 22.10.2003 of the District Commission and the Orders dated 03.07.2019 and 18.07.2012  of the State Commission and the Petition.

3.       It appears that initially the complaint was filed in the District Commission in the year 1999 and the complaint could get decided by the District Commission in the year 2003. It may be useful to extract and quote some relevant portion of the Order passed and also the award granted by the District Commission which reads as follows:

We carefully perused the entire evidence material available on the file and herd the arguments of the parties. The complainant was allotted 800 sq meter plot in the industrial area in the year 1989, which possession was given on 28.3.95. Prior to this, an agreement was executed in between both parties on 26.2.90. In the year 1998 the respondent cancelled the allotment on account of being no any construction or no any use of the land by the complainant and the possession was formally taken back. In the year 1998 itself when the complainant requested for restoration of plot then it was told by the respondent that the restoration can be considered on deposit of 50% of the difference of past and present premium. Although it has been mentioned by the respondent that in the industrial area in question all basic facilities are available and many big factories are also working/functioning, but simultaneously when the concerned area has been got inspected by the Advocate/Commission, then it has been said in the relevant report that in three sides of the plot in question the plots are lying vacant and there were not roads 3 years ago. No drinking water line was found on the spot and the area is not found fully safe. As per report, in the last two-three years only the development of this area has been done. Simultaneously, it is also for consideration that the allotment of plot was made to the complainant in the year 1989 and agreement was also executed in the year 1990 but the possession on the plot was given in the year 1995. Thus, the respondent took about 6 years for providing possession of the allotment plot but in case of not doing construction of non-use of land by the complainant in three years, the allotment of the plot was cancelled. Not only this, or the request for restoration of plot, the complainant was asked to deposit 50% of the difference of rates of past and present premium. It is clear from all these facts that although some delay has been made by the complainant in the use and construction of the plot but simultaneously it is also for consideration that the respondent itself took 6 years in giving possession of the allotted plot and till date availability of complete basis amenities/facilities in the industrial area in question is still not confirmed. As per the opinion of the forum the complainant is not required to be given more concession/time in starting the use of plot by taking benefit of all these, but simultaneously it is also the opinion of the forum that there was no any justification in cancellation of the allotment of plot of the complainant. Otherwise also, at present, all basic amenities are not available in the area and whatever construction and developments have been done, that too have been done in the last three years i.e. these developments have been done after cancellation of the plot in question. After due consideration of all these circumstances it is the clear view of the Forum that restoration of the plot without charging any restoration fee in favour of the complainant is justified. The complainant wants to start his own industrial work in the industrial area while in the industrial area all adjoining lands/plots are lying vacant. As per the opinion of the forum it would be justified/appropriate to revive the previous allotment of the plot in favour of the complainant. Simultaneously, the complainant should also get the litigation costs unnecessarily borne by him.

ORDER

On the basis of aforesaid analysis, it is the order of the Forum that the earlier allotted plot bearing No.77, Site-C be revived by the respondent without any restoration charges to the complainant within one month from today and the complainant be provided Rs.12.000/- as litigation cost.

4.       Being aggrieved by the District Commission’s Order the appeal was filed before the State Commission in 2004.  After an unusually long period of time the said appeal was dismissed in non-prosecution in the year 2012.  The Order passed by the State Commission reads as follows:

18.07.2012:

Listing has been repeated. Even after uploading of cause list on the website of the Commission, its display on internet and sufficient information/notice, none is appeared at the time of hearing on behalf of the parties.

Therefore, it is clear from the above that in the proceeding of this appeal the appellant has no interest. Accordingly, on account of the absence of the parties, this appeal is rejected in the absence of persuasion.

5.       Again after a very unusually prolix period of time a restoration application was filed in the year 2019 but the same also got dismissed. The Order passed by the State Commission reads as follows:

03-07-2019

Learned Counsel Sri Manoj Sahu appeared for applicants. Heard learned counsel for the applicants.

Present application has been moved to recall dismissal order dated 18-07-2012 passed in Appeal No.1231/2004.

In view of proposition laid down by Hon'ble Apex Court in the Karekar and another reported in IV (2011) CPJ 35 (SC) the State Commission has no power to recall order passed by it earlier.

As such the application is rejected.

6.       The aforesaid two twin Orders have now been challenged by way of filing the present revision. 

7.       The submission made by the counsel on behalf of the petitioner is that though the initial Order of dismissing the appeal was passed in the year 2012 but the counsel who was appearing there was negligent and it was because of his lackadaisical approach and attitude the appeal of the petitioners got dismissed in non-prosecution. Further submission is that after dismissal of the appeal too the counsel never took care to inform the petitioners about the dismissal of the appeal and, therefore, the petitioners remained in dark and could never know the fate of his appeal. It was this reason, according to learned counsel for the petitioners, that the restoration application was filed so belatedly in the year 2019 almost after seven years.  Submission is that the factum of the dismissal of appeal by the State Commission could be known to the petitioners only when the execution proceedings started. Contention of the counsel for the petitioners is that, therefore, now the matter should be remanded back to be decided on merits after hearing the petitioner. Submission is that the default of non-appearance before the State Commission should be condoned.  

8.       On the other hand learned counsel appearing on behalf of the respondents has vehemently opposed the submissions of the counsel for the petitioners.  Her submission is that this is an extraordinary case in which the complainant has been cooling his heels for the last two decades just awaiting to get justice which has eluded him so far.  Submission is that the argument raised on behalf of the petitioners is unsubstantiated and the petitioners have got nothing better to explain the prolonged delay involved in the matter than just to pass the buck on its counsel making him a scape goat. Submission is that even according to the petitioners’ case the execution proceedings had started in the year 2017 and according to the claim of the petitioners themselves the notice of the execution was served on them in the year 2018. Submission is that even on that reckoning the restoration application against the dismissal of the appeal filed in the month of June 2019 is highly belated without any adequate explanation for the same. Submission is that if the cause of justice remains unredressed for decades, it defeats the very purpose of the judicial process and the entire system of administration of justice is brought to a naught. Submission is that in the specific circumstances of the case with such feeble and untenable explanations proffered on behalf of the petitioners the matter should no further be remanded back to start another innings of litigation. According to the counsel, there is now no good reason at all to condone the default of non-appearance before the State Commission.  

9.       The bench has accordingly perused the entire record available before it including inter alia the Order passed by the District Commission, the two Orders passed by the State Commission and also the grounds of revision.

10.     Though the Orders under challenge relate to the dismissal of appeal for want of prosecution and to the subsequent Order whereby the restoration of the earlier Order has been refused, the essential issue involved in the matter appears to be the prolonged delay after which the appeal was filed in the State Commission.  As such the bench has thoroughly heard the petitioner’s counsel as well as counsel for the respondent on that aspect of the matter in order to see whether there was at all any justification for filing the appeal in the State Commission with so much of delay and as to whether the explanation in that regard is worth acceptance.

11.       Ordinarily we tend to adopt a liberal approach on the aspect of considering the point of delay and lean to take an indulgent view towards the side who seeks its condonation. We prefer that a matter be decided on merits rather than be closed at the threshold stage i.e. on the ground of delay, but that does not imply that we may ever ride roughshod over the statutory requirement regarding the law of limitation wherever it has been provided by the legislature in its wisdom. It does not need much elaboration to state that when the period of limitation expires it simultaneously gives rise to a right which accrues to the other side and the other side cannot be divested of its accrued right for no adequate reason, that is why, whenever there is a delay, and whenever condonation on that aspect is sought, by either side, it has to discharge the onus of showing such factual basis from which may emanate the convincing grounds relying upon which such delay may be condoned. It goes without saying that such explanation has to be genuine and not an explanation just for the sake of explanation. Anything and everything said to bridge up a considerable gap of delay is not to be termed as legitimate explanation, which has to be sincere, honest and persuasively adequate and worthy of credence.

12.     It may also be observed that at times we come across cases where it is possible for us to take a different view of the matter but that by itself does not vindicate or serve as a good reason to substitute the orders passed by the lower fora by our own unless we see some element of perversity in it or see a wholly erroneous approach towards the matter which cannot be sustained either on facts or in law or find that the larger ends of justice and good conscience would otherwise stand vitiated and detrimentally compromised.

          In the present matter, however, the bench finds that the submissions that have been made on behalf of the petitioners fall far short of being called either adequate or sufficient in order to explain the colossal delay involved in the matter at all stages of litigation and has found it too hard to accept that a party would be so completely unconcerned with its case that for years and years together it will not come to know about its fate. The explanation is too loud and too hollow to be given credence. The bench does not see any jurisdictional error involved in the impugned Orders, nor does it see any element of perversity which may persuade the Bench to allow the revision.

13.     In the peculiar facts and circumstances of the case which include the fact that the complaint was filed in the year 2001 and it is more than two decades now that it is still awaiting for the compliance of its award; if the counsel of the party does not take care even to appear before the Commission, and even when the case is dismissed in non-prosecution they do not find it fit to seek its restoration in the appropriate forum, for several years, such an apathy towards the procedure and process of law is difficult to be countenanced with, and certainly not at the expense of the consumer.  Remanding back the case now after two decades will be only a travesty of justice. There is no good reason to absolve the petitioner for its default or for being so remiss.  

          Revision petition stands dismissed. 

14.     The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel within three days.  The stenographer is requested to upload this Order on the website of this Commission immediately.