Learned counsel Sh. Vijay Pal Tiwari & Sh. Rajesh Kumar Devliyal on behalf of the revisionist and learned counsel      Smt. Gomti Chauhan on behalf of the opposite party, have appeared.

This revision petition has been directed against the impugned order dated 19.04.2023 passed by learned District Consumer Disputes Redressal Commission, Udhamsingh Nagar (hereinafter to be referred as “The District Commission”) in Miscellaneous Application No. 47 of 2022, styled as Sh. Dinesh Vs. Dr. Kanika Agrawal Saraf, wherein and whereby the delay condonation application was allowed and the delay in filing the consumer complaint was condoned.

The brief facts, giving rise to the present revision petition are, as such, that the opposite party / complainant had filed a consumer complaint before the District Commission, alleging medical negligence on the part of the revisionist (opposite party before the District Commission) in the operation / treatment of his eye.  Along with the consumer complaint, an application was moved under Section 69(2) of the Limitation Act, 2019, with a prayer to condone the delay in filing the consumer complaint.

Against the aforesaid application, objections were filed by the revisionist, stating that the complainant has concealed the true facts and the application has been moved against the mandate of law.

The District Commission vide impugned order dated 19.04.2023 has allowed the delay condonation application and condone the delay in filing the consumer complaint.

Being aggrieved by the impugned order, the present revision has been submitted by the revisionist, alleging that the impugned order is against law.  There is no such provision under Section 69(2) of the Limitation Act to condone the delay in filing the consumer complaint, hence the application moved was beyond law, but learned District Commission has not considered the said fact and wrongly allowed the application.  It is further averred that day-to-day delay was not explained, hence the delay condonation application could not have been allowed.  Thus, the impugned order is perverse and has been passed without application of judicial mind and the same is also against the settled principle of law.  Therefore, the impugned order is liable to be set aside.

We have heard learned counsel for the parties and perused the record.

The revisionist has submitted copy of the delay condonation application moved by the complainant before the District Commission, stating it to be application under Section 69(2) of the Limitation Act, 2019.  We have also perused the said application, wherein in para 4, it is clearly averred that the delay in filing the consumer complaint is liable to be condoned under Section 5 of the Limitation Act.  In the application, the complainant has clearly mentioned that the delay in filing the consumer complaint has occurred on account of his treatment in various hospitals, therefore, the delay in filing the consumer complaint be condoned.

It is pertinent to note that in para 4 of the application, the complainant has clearly mentioned Section 5 of the Limitation Act, wherein the delay in filing the case can be condoned.

We are of the view that merely on account of mentioning incorrect Section in the heading of the application, the application can not be dismissed, particularly when, in the body of the application, the complainant has sought benefit of Section 5 of the Limitation Act.

Apart from it, learned counsel for the revisionist have submitted that while allowing the delay condonation application, learned District Commission has not imposed any costs upon the complainant.  The submission put forward, is worth acceptable and we are of the considered opinion that in the event of allow of delay condonation application, the revisionist should be compensated by the opposite party / complainant by way of costs, which we quantify at Rs. 5,000/-.  The impugned order passed by learned District Commission, allowing the delay condonation application, should remain intact, subject to above modification of awarding costs to the revisionist.

In view of above, the revision petition is disposed of, upholding the impugned order dated 19.04.2023 passed by the District Commission and directing the opposite party / complainant to pay an amount of Rs. 5,000/- to the revisionist, imposed as costs upon the opposite party / complainant for allowing the delay condonation application.  Costs stand paid, which has been received by learned counsel for the revisionist.

File be consigned to the record room along with copy of this order.

A copy of this order be sent to the concerned District Commission for perusal, information and necessary action.