Alla Venkat Reddy vs Vellanki Syam Prasad

The present revision petition has been filed against the order dated 30 th December, 2016 passed by the State Consumer Disputes Redressal Commission Telangana at Hyderabad (hereinafter referred to "the State Commission) by which the State Commission has declined to condone the delay of 187 days in filing the Appeal.

We have heard Mr. E. Jaganwadha Sastrulu, learned Counsel for the Petitioner and Ms. A. Subhashini, learned Counsel for the Respondent and have perused the impugned order passed by the State Commission.

Learned Counsel for the Petitioner submitted that the Petitioner had given sufficient reasons for not filing the Appeal within the stipulated period and, therefore, the State Commission ought to have condoned the delay of 187 days in filing the Appeal. Learned Counsel for the Respondent/Complainant, however, submitted that the conduct of the Petitioner was not above board and, therefore, the State Commission had rightly declined to condone the delay in filing the Appeal. From perusal of the impugned order passed by the State Commission, we find that in the first round of litigation the Petitioner had filed an Appeal before the State Commission with a delay of 179 days which was not condoned by the State Commission, whereupon in the Revision Petition filed before the National Commission, the Petition was allowed and the delay was condoned. The matter was remanded to the State Commission for deciding on merits. On remand, the State Commission further remanded the matter to the District Forum for deciding the Complaint case in accordance with law. Before the District Forum, the Petitioner remained ex-parte. The order was passed by the District Forum on 26.02.2015. The Execution Application was filed by the Complainant before the District Forum in which initially the notice was issued and subsequently when the Appellant did not appear, non-bailable warrants were issued. It was executed. The Petitioner was arrested and produced before the Executing Court. Before the Executing Court, a statement was made by the Petitioner that the Petitioner had preferred an Appeal before the State Commission. Therefore, the District Forum stayed the execution of non-bailable warrant. Subsequently, the Complainant made enquiry before the State Commission and came to know that no such Appeal had been preferred. It was brought to the notice of the District Forum, which again issued the non-bailable warrants and the Petitioner was arrested. Thereafter, the Petitioner preferred an Appeal before the State Commission with a delay of 187 days. For ready reference relevant portion of the order passed by the State Commission is reproduced below: -

"3. The Respondent opposed the above application contending that even after receipt of the notice from the District Forum, the petitioner was set ex parte and the District Forum passed orders. After receipt of summons in Execution Petition, the petitioner preferred the appeal before the State Commission with a delay of 179 days and it was dismissed in FAIA 31/2013 in FASR 40/2019. Aggrieved by the said orders, the revision petition in RP 1986 of 2013 preferred by the petitioner before Hon'ble National Commission was allowed on payment of costs of Rs.10,000/- remanding the matter back to the State Commission. The State Commission while condoning the delay of 179 days vide orders dated 25.02.2014 remanded the same to the District Forum to reopen the matter. The District Forum served notices on both parties. The petitioner became set exparte. The District Forum passed orders. For non- compliance of the said order, the respondent filed Ea and after receipt of notice the petitioner did not turn up to comply with the orders and hence the District Forum issued NBW against the petitioner. The police arrested the petitioner and produced before the District Forum and the petitioner mis-represented the facts before the District Forum deposing that he has preferred an appeal before the State Commission and then the District Forum released him on his personal bond. He obtained the information from the State Commission under RTI ct that the petitioner did not prefer an appeal. He furnished the same before the District Forum and the District Forum issued NBW against the petitioner. After issuance of NBW the petitioner preferred the present appeal to condone the delay of 187 days and the Commission granted stay on 29.12.2015. It is further submitted that there are no valid and sufficient grounds/cause to condone the delay of 187 days. The matter pertains to way back 2008. The petitioner deliberately avoided to contest the matter before the District Forum and mis-represented the facts before the District Forum and obtained the orders to recall NBW and filed this appeal with a delay of 187 days, hence, prayed to dismiss the petitioner with costs."`

The facts are not in dispute. On a query being put to the learned Counsel as to why such a false statement was given before the District Forum that an Appeal has been preferred before the State Commission when no such Appeal was preferred, the reply given was not satisfactory. According to learned Counsel for the Petitioner no such statement was given except that the Petitioner intended to file an Appeal before the State Commission. This submission cannot be accepted. We have to go by the findings recorded by the State Commission. Neither the Petitioner nor their Counsel can take another contrary stand than what has been recorded by the State Commission. From the memo of Revision preferred by the Petitioner, we find that in ground X the Petitioner has stated the following: -

"For that the Hon'ble State Commission ought to have considered that the petitioner did not receive the summons in the execution case later he came to know that NBW were issued by the forum as the date of the hearing was wrongly noted by his counsel as 8/10/2015 instead of 6/10/2015. After arrest of the petitioner, the petitioner requested for preferring an appeal and Ld. District forum enlarged the petitioner on his personal bond."

However, this ground does not categorically state that no such statement as recorded by the State Commission that the Appeal has been preferred, was given by his Counsel. Even otherwise, in law this is not permissible. The Hon'ble Supreme court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr. AIR 1982 SC 1249 has laid down the law as to when the statement made by a counsel before the Court below can be resiled. For ready reference, relevant paragraphs is reproduced below: -

"When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation".(1) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (2) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate (I) Per Lord Atkinson in Somasundaran v. Subramanian, A.I.R 1926 P.C. 136.

(2) (Per Lord Buckmaster in Madhusudan v. Chanderwati, A.I.R. 1917 P.C. 30.

Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

In Rev. Mellor, 7 Cox. P.C. 454 Martin was reported to have said: "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".

In Ring Emperor v. Barendra Kumar Ghose (1): said, ".. these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version".

In Sarat Chandra v. Bibhabati Debi (2) Sir Asutosh Mookerjee explained what had to be done:

"It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment"

So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else."

In view of the foregoing discussion, we are of the considered opinion that taking into consideration the conduct of the Petitioner, the State Commission was perfectly justified in declining to condone the delay of 187 days and consequently rejecting the appeal. Order does not suffer from any illegality which would warrant any interference in exercise of our Revisional Jurisdiction. The Petition fails and is dismissed.