ORAL ORDER Per – Hon’ble Mr. Justice S. B. Mhase, President Mr. Zorast Zend, Managing Director is present on behalf the Applicant/Appellant. Adv. Asim S. Vidyarthi is present on behalf of the Non-Applicants/Respondents. He files his ‘Vakalatnama’. It is taken on the record. He also files a reply opposing the application condonation of delay. Heard. Perused the record. [2] This appeal takes an exception to an order dated 21/12/2010 passed by the South Mumbai District Forum in Consumer Complaint No.158 of 2010. By the impugned order, the consumer complaint was dismissed for default. There is an alleged delay of 281 days in filing the appeal and to seek condonation of delay the Applicant/Appellant has filed Miscellaneous Application No.14 of 2013. [3] Delay has occurred because after the order was passed by the District Forum dismissing the consumer complaint for default, the Applicant/Appellant herein (the Complainant before the District Forum) filed a miscellaneous application before the District Forum for restoration of complaint and in deciding said application time was consumed by the District Forum. In view of the decision of the Supreme Court in Rajeev Hitendra Pathak & Others Vs. Achyut Kashinath Karekar ~ (2011)-8-SCLR-068, an application for restoration is not maintainable. However, it appears that the advocate who represented the Applicant/Appellant before the District Forum had not properly guided the Applicant/Appellant and, therefore, such application was filed which was not tenable. However, the fact remains that the Applicant/Appellant had bonafide prosecuted such restoration application for the purpose of setting aside the order passed by the District Forum as regards dismissal of the complaint for default. Therefore, the time which was consumed by the Applicant/Appellant which resulted into delay in filing the appeal is because of bonafide prosecution of the restoration application. Therefore, we are inclined to condone the delay in filing appeal. [4] With the consent of the parties we are also disposing of this appeal. Since this is an appeal filed by the original Complainant, whose complaint came to be dismissed for default, we take a lenient view in the matter. It is the lapse on the part of the advocate who was representing the Applicant/Appellant before the District Forum which resulted into dismissal of the complaint for default. No doubt there was lapse on the part of the Applicant/Appellant in not prosecuting the complaint diligently before the District Forum. However, in the interest of justice and equity we find that it will be proper to offer one more opportunity to the Applicant/Appellant, who is the Complainant before the District Forum, to participate in the proceeding. However, equity can be balanced by imposing reasonable costs.
Hence, we pass the following order:- ORDER Miscellaneous Application No.14 of 2013 seeking condonation of delay in filing Appeal No.21 of 2013 is hereby allowed. Consequently, the delay in filing appeal stands condoned. Appeal No.21 of 2013 is allowed. Consequently, order dated 21st December, 2010 passed by the South Mumbai District Forum in Consumer Complaint No.158 of 2010 is hereby set aside. Consumer Complaint No.158 of 2010 is restored to the file of the South Mumbai District Forum subject to payment of costs of `5,000/- to be deposited into Legal Aid Fund of this Commission by the Applicant/Appellant within a period of fifteen days from today (Since the order is passed in presence of the parties) and failing which the order passed by the District Forum shall stands confirmed. Pronounced and dictated on 21st March, 2013 | 
