Per Mr.Justice S.B.Mhase, Hon’ble President

The original complaint nos.397/04, 400/04 and 401/04 were filed by the respondents/original complainants before the Mumbai Suburban District Consumer Disputes Redressal Forum. In the said complaints the appellants in Appeal nos.1445/08, 1446/08 & 1447/08 were original opponent nos.1, 2, 3 & 5.  Appellant in Appeal nos.1575/08, 1576/08 & 1577/08 was original opponent no.5. Out of the three complaints referred to above, consumer complaint nos.397/04 and 400/04 were decided by the District Consumer Disputes Redressal Forum on 29/2/2008 and the consumer complaint no.401/04 was decided on 05/3/2008.  All these three complaints were allowed as against the original opponent nos.1 to 5 who have filed the above referred appeals.  The original opponent nos.1, 2, 3 & 5 have filed three appeals respectively bearing nos.1445/08 (against CC/401/04), 1446/08 (against CC/397/04) & 1447/08 (against CC/400/04).  In these group of appeals the appellants/ original opponent nos.1, 2, 3 & 5 have also filed Misc. application bearing nos.2039/2008, 2041/08 & 2044/08 making prayer for condonation of delay. 

There is another group of appeals which has been filed by the original opponent no.4 as stated above.  Original opponent no.4 has filed appeal no.1575/08 (against CC/397/04), 1576/08 (against CC/400/04), and 1577/08 (against CC/401/04).  However, in these appeals though there is a delay in filing the appeals, the appellant has not filed delay condonation application.  However, since all these appeals are arising from the decision of the common complaints decided as stated above, they were listed for admission together.

So far as Appeal nos.1445/08 to 1447/08 are concerned, we heard Mr.A.V.Patwardhan –Advocate for the appellants and Mr.U.B.Wavikar –Advocate for the respondents and following order is passed;-

“By order dated 03/12/2009 we have directed the appellant to clarify to the State Commission as to under which provision the present appeal is to be treated and/or as to how the jurisdiction of State Commission has been invoked by the appellant.  After consuming time for about one hour a pursis is filed submitting that this appeal is preferred under Section 15 of Consumer Protection Act, 1986 as against the order dated 05/03/2008 passed in complaint no.401/2004.  Said complaint is decided by the District Consumer Redressal Forum on 05/03/2008.  The free copy of the said order has been dispatched to the appellant on 14/03/2008.  The appeal as against this order has been filed on 18/11/2008. Therefore, there is delay of 250 days in filing the appeal.  For the condonation of said delay an application for condonation of delay has been filed.  In the said application the following averments are made in para 4 and 5:

“4.   I say that the Learned District Consumer Redressal Forum passed the order on 5^th March,2008.  However, copy of the order was received by the appellant on 28^th August, 2008.  The applicants learnt about passing of the order only 29^th August, 2008, when an application was made by the complainants for executing the said order. 

5.     I say that when the Advocates for the applicants approached the Learned District Consumer Redressal Forum to set aside the impugned order, the Advocate were informed that the only executive court to set aside the impugned order would be this Hon’ble Court and the only remedy is to file an application before this Hon’ble Court.”  

        On perusal of these contents in the application, we desired to know from Ld.Counsel appearing for the applicant/appellant as to how a sufficient cause for condonation of delay has been made out in para nos. 4 and 5.  Adv.Patwardhan submitted that this is a brief of solicitor firm and he can not add anything to what has been stated in it. Adv.Wavikar, who appears for respondent categorically and rightly, submitted that applicant failed to justify inordinate of 250 days.  What we find is that when the final order is passed by the District Consumer Redressal Forum on merit, there is no question of setting aside the order passed by the District Consumer Redressal Forum because District Consumer Redressal Forum do not have a power like that of Order 9 rule 17 as is available in Civil Court to set aside the decree passed in ex-parte order.  Therefore, the ground stated in para no.5 that the Advocate for the applicant approached to the Ld. District Consumer Redressal Forum to set aside the impugned order is not the ground for condonation of delay.  The statement made in para 5 itself is confusing statement.  Firstly, the District Consumer Redressal Forum which decided the case under Section 12 read with Section 13 has no power to set aside the ex-parte  order passed on merits and the only remedy is to file appeal under Section 15.  Secondly, the executing court does not have power to set aside the order passed on merit.  Executing courts are supposed to execute the order and they do not have power to go beyond the order under execution.  Therefore, ground stated in para no.5 cannot be a ground for condonation of delay.  Except this no grounds are made out in the application for condonation of delay of 250 days as admitted by the appellant.  There is no merit in the application made for condonation of delay.”

So far as other group of appeals is concerned which is filed by the original opponent no.4, it is to be noted that the order passed in consumer complaint nos.397/04 & 400/04 were passed on 29/02/2008 and the order was passed on 05/03/2008 in consumer complaint no.401/04.  The first copies of these orders were dispatched by the District Consumer Disputes Redressal Forum on 05/04/2008 and in normal course those copies must have been received by the appellant/original opponent no.4.  However, on the basis of the said copies the appeal was not filed.  It appears from the certified copy annexed to the appeal memo that the copy annexed to the appeal memo is second certified copy and for the said second certified copy, appellant/ original opponent no.4 has made an application on 10/12/2008 and the copies were given on the said date and, thereafter, appeals have been filed on 16/12/2008.  Therefore, there was delay in filing the appeal.  What we find that the same date of decision and the date of dispatch are also reflected in the certified copies which are annexed to the Appeal nos.1445/08 to 1447/08 filed by the original opponent nos.1,2,3&5.  Addresses of all the opponents as reflected in the complaint and also in the appeal memo are one and the same and, therefore, normal inference follows that the copies must have been received by them when dispatched by the District Consumer Disputes Redressal Forum on 05/04/2008 within a reasonable time.  However, appellants in Appeal no.1445/08 to 1447/08 at least have preferred application for condonation of delay which we have rejected on merits as stated in the above para of the order.  However, appellant/original opponent no.4 has not preferred any delay condonation application in A/1575/08 to 1577/08.  Not only that but when the matters are called today appellant and appellants advocate both are absent.  They were all aware of the date fixed.  On the contrary, from the application made for certified copies to the District Consumer Disputes Redressal Forum and thereafter filing of an appeal, it appears that though two groups of appeals have been filed they are acting conjointly.  Not only that but the opponent no.4 –Ramesh Pukhraj Jain who has filed separate group of appeals without delay condonation application is equally a partner of M/s.Mahavir Construction Co. which is opponent in the complaint and also appellant in the Appeal nos.1445/08 to 1447/08, thereby being a partner his interest is also represented in Appeal nos.1445/08 to 1447/08.  Therefore, reasoning which has been given by us for rejection of the delay condonation application equally applies in case of the appeals filed by the original opponent no.4 Ramesh Pukhraj Jain.  Not only that but his case stands on worse position because he has not bothered to file delay condonation application and thereby has not placed on record any separate distinct reasoning making out case on sufficient ground for condonation of delay and, therefore, there is no other alternative but to reject Appeal nos.1575 to 1577/08 being barred by limitation and, therefore, we pass the following order:-

                                                ORDER

Misc.application nos.2039/08, 2041/08 & 2044/08 for condonation of delay stands rejected.

Consequently, Appeal nos.1445/08 to 1447/08 stands rejected.

So far as Appeal nos.1575/08 to 1577/08 are concerned they are time barred appeals and, therefore, they stands disposed of as time barred.

An amount of `25,500/- which has been deposited by the appellant be paid to the respondent after period of limitation to approach Hon’ble National Commission is over.

Parties are left to bear their own costs.

Dictated on dais in presence of parties.

Copies of the order herein be furnished to the parties as per rules.

Pronounced dated 1^st December, 2010.