Haryana

StateCommission

A/1092/2016

KALAM SINGH - Complainant(s)

Versus

SHANKAR DASS JAGDISH KUMAR - Opp.Party(s)

LALIT SHARMA

17 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.1092 of 2016

Date of the Institution: 11.11.2016

Date of Decision: 17.01.2017

 

Kalan Singh S/o Sh.Kokanram, R/o village Kharkari Makhvan, Tehsil Tosham, Distt. Bhiwani.

                                                                             .….Appellant

 

Versus

 

1.      M/s Shankardass Jagdish Kumar, 119 New Anaj Mandi, Bhiwani, Lohar Bazar (Dealer) through its Manager.

2.      Dolpin (Insecticide) manufactured by:- GSP Crop Science Pvt. Ltd. 551 Phase II G.I.D. Kathwada Odhav Ahmedabad 382430 Gujarat.

3.      MIG Alphamethin (Insecticide) Manufactured by:
Devidayal (Sales) limited an ISO 9001-2000 Company) having its Registered office at: Reay road Mumbai 400010 FAC: Derol Kalol (Distpms) 389330 India.

                                                                             .….Respondents

 

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Gaurav Khera, Advocate counsel for the appellant.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

The appellant-opposite party has preferred this appeal against the order dated 19.05.2016 passed by the District consumer Disputes Redressal Forum, Bhiwani (in short ‘District Forum’).

2.       Alongwith appeal, appellant-opposite party has filed an application under section 5 of the Limitation Act  of 1963 (in short “Act”) for condonation of delay of  125 days wherein, it is alleged that   appellant was illiterate and poor person and had no knowledge about limitation to file appeal.  The delay in filing the appeal was not intentional and was bonafide,  so the same be condoned.

3.      Arguments heard.  File perused.

4.       Learned counsel for the appellant vehemently argued  complainant was illiterate and poor person. He had no knowledge about period of limitation to file appeal. In this way the delay was not intentional and same may be condoned.

5.  This argument is devoid of any force. Since the complainant was  represented by the counsel and order was pronounced in his presence so it cannot be presumed that he was not aware about the order or the limitation. After the decision of the complaint, he must have asked his counsel about filing of appeal.  So plea raised about ignorance qua limitation cannot be believed.  It appears that plea about illiteracy has been raised just to cover the inordinate delay of 125 days. 

6.  A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

 

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

7.      Taking into consideration the plea raised by appellant for condonation of delay and the settled principle of law, this Commission does not find it a fit case to condone the delay of 125 days in filing of the appeal. Hence, the application of the appellant is dismissed and appeal is also dismissed as time barred.

 

January 17th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.