HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Heard Learned Advocate appearing for the revisionist / petitioner / opposite party No. 1.

2. The above revision has been filed against the order No. 11  dated 28.12.2022 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit III (South), West Bengal whereby the maintainability application filed by the revisionist was rejected.

3. The complainant filed the case being No. CC/634/2021 before Learned District Consumer Disputes Redressal Commission, Kolkata, Unit III praying for handing over vacant and peaceful possession of the room so that the same can be utilized for the common purpose as a watchman’s room.

4. So far as the prayer for direction upon the opposite parties to hand over the vacant and peaceful possession of the room is concerned, it is of the nature of the continuing wrong as per provision of section 22 of the Limitation Act, 1963. Therefore, we find that the Learned District Commission has rightly held that failure to give possession of the flat is continuing wrong and constitutes recurrent cause of action as long as the possession is not delivered to the buyers. They have, however, right to approach the consumer court. Moreover, the Hon’ble Supreme Court has held in a case reported in Samruddhi Co Operative Housing – Vs. – Mumbai Mahalaxmi Construction 2022 SCC online SC 35 that in case of continuing the cause of action, the limitation is not started unless the right is denied by the opposite party.

5. Under these facts and circumstances we find that there is no incorrectness, illegality or impropriety in the impugned order passed by the Learned District Commission.

6. This apart, it appears that the revisionist / petitioner has filed the instant revisional application with a delay of 107 days. The office has also submitted a report that this revisional application has been filed with a delay of 107 days. To explain the delay the revisionist / petitioner has stated in the condonation application that the petitioner / revisionist was suffering from swelling of face and severe space infection involving buccal space, maxillary space and due to that the revisionist / petitioner was unable to contact his Learned Advocate and advise her to take proper steps in the complaint case. The petitioner has also stated in the petition that he was under the treatment of Doctor and the Doctor prescribed him on 05.02.2023, 18.03.2023 and 05.06.2023. To that effect one prescription is filed but no medical certificate in support of his case has been filed. Moreover, it appears that the complainant has nowhere stated in the application for condonation of delay that he was completely bed-ridden and he was unable to move. Therefore, on consideration of the said application for condonation of delay and the prescription issued by the Doctor, we find that the revisionist has not explained the cause of delay properly to us. So, the delay in filing the revisional application cannot be condoned.

7. In view of the matter, we hold that the order of the Learned District Commission below should not be disturbed. Therefore, there is nothing to interfere with the impugned order. So, the revisional application is without any merit and it is, therefore, dismissed in limini.

8. Considering the facts and circumstances of the case, there will be no order as to costs.

9. The Learned District Commission below is directed to dispose of the case as early as possible preferably within a period of two months from the date of passing of this order.

10. Let a copy of this order be sent to the Learned District Commission below at once.

11. Office to comply.