ORDER NO. 4 DT. 08.09.2009

This Appeal is fixed for admission hearing today when the Respondent is present through her Ld. Advocate.  The Appeal has been filed against the judgement and order passed by the Ld. DCDRF, South 24 Parganas in Complaint Case No. 05 of 2008 when the complaint was filed on 10.1.08 and the Ld. Forum passed its judgement on 14.8.08.  Subsequent thereto, execution case was filed upon due notice to the other side namely the Appellant here, and on 22.7.09 the Appellant here appeared for the first time before the Ld. Executing Forum and filed Vokalatnama.

The Appellant here filed this Appeal on 6.8.09 and stated inter alia that only upon the order of the Ld. Executing Forum dt. 15.6.09 the Appellant got aware of the execution case and then appeared on 22.7.09 at the Executing Forum and immediately thereafter searched the record of the case and obtained certified copy of the order of the Ld. District Forum on 28.7.09.  In that view the Ld. Advocate for the Appellant stated that it did not file any condonation petition along with the Appeal, the same having been filed on 6.8.09 on its obtaining certified copy of the order on 28.7.09.  The Appellant accordingly prayed for admission of the Appeal petition. 

The Ld. Advocate for the Respondent objected to this position and stated that the OP (Appellant here) did not contest the case in the Forum below even after having been served due notice when the complaint case was heard ex parte against the OP and orders were accordingly passed, certified copy of which was duly sent to the present Appellant, who chose to remain silent.  Subsequent thereto, the Execution case was filed before the Ld. Executing Forum when again the OP in the Executing Forum namely the Appellant here, inspite of due notice chose not to appear in successive proceedings in the execution case.  Then the Ld. Executing Forum by its order dt. 15.6.09 required the presence of the JDr/CESC Ltd., when the JDr namely the present Appellant, appeared on 22.7.09 and filed power.  Thus the Appellant here cannot pretend ignorance of the matter pending before the Ld. District Forum below either in the complaint case or in the execution case prior to 22.7.09 and, therefore, this Appeal petition is vitiated in absence of appropriate application for condonation of delay required to be filed U/S 15  of the Consumer Protection Act as amended, and, accordingly, this Appeal petition is liable to be not admitted.  In this regard, the Ld. Advocate for the Respondent also stated that there were two operative parts in the order namely one for re-installation of the electric meter in the Respondent/Complainant’s meter board and the other was for payment of an amount of compensation of Rs. 10,000/- to the Respondent/Complainant.  It was pointed out that the electric meter was since re-installed and only the compensation part of the order remained to be executed arguing that once a part of a decree was carried out, no Appeal could lie for the remainder unexecuted part.

          The matter was heard from respective sides when citations as under were furnished in support of respective contentions.

1.                 III (1995) CPJ 28 (SC) – Housing Board, Haryana Vs. Housing Board Colony Welfare Association & Others

2.                 III (1995) 67 (NC) – Union of India & Others Vs. Ramesh Kumar

3.                 II (2009) CPJ 191 (NC) – Delhi Development Authority Vs. R.K.Meena

4.                 I (2009) CPJ 13 (NC) – Agra Development Authority Vs. Shailendri

DISCUSSION :-

A.      The OP in the Ld. Forum below and the JDr. in the Execution Case in the Executing Forum and the Appellant here has no plausible explanation as to why it chose not to participate in the complaint proceeding or for that matter in the execution proceeding till 22.7.09 when there was no contrary evidence produced as to non-issue or non-receipt of appropriate notice from the Forum.  The Respondent here and the complainant in the Forum also filed a copy of Lawyer’s notice in the matter of the complaint, which was duly received by the Appellant here on 4.10.07.  Therefore, we are unable to accept as to the plea of ignorance of the complainant’s case before the Forum below or in the execution case.  In such regard, the citations relied by the Appellant namely (i) III (1995) CPJ 28 (SC) – Housing Board, Haryana Vs. Housing Board Colony Welfare Association & Others and (ii) III (1995) 67 (NC) – Union of India & Others Vs. Ramesh Kumar, have no application in this matter where firstly, there is no condonation of delay application accompanying this Appeal and secondly, there is no good reason to believe that indeed the present Appellant was wholly in the dark either on the proceedings in the complaint case in the Forum below or on the execution case in the Executing Forum below at any time prior to 22.7.09.

B.      The Respondent’s citations in (i) II (2009) CPJ 191 (NC) – Delhi Development Authority Vs. R.K.Meena and (ii) I (2009) CPJ 13 (NC) – Agra Development Authority Vs. Shailendri have also been taken into account where stress had been laid on lack of convincing reasons for condoning the delay by the adjudicating Forum.

C.      In above view, considering that the impugned judgement and order was passed on 14.8.08 and this Appeal was filed on 6.8.09 and that too without any application for condonation of delay application as provided U/S 15 of Consumer Protection Act, 1986, as amended, this Appeal is not admitted, the same being violative of laws and rules laid down therefor and also on account of our not being satisfied that there was sufficient cause for not filing within the period provided under statute.