Chinnamma vs EXECUTIVAE ENGINEER KARNATAKA HOUSING BOARD

BY way of this order, we shall dispose of petitioners application seeking condonation of delay of 692 days in filing of the present revision petition.

BRIEF facts of the case are that petitioner/complainant had paid Rs.40,500/- pursuant to the allotment of MIG flat in her favour in addition to Rs.1,050/- for registration fee. According to the petitioner, said allotment was cancelled without any notice to her. The defence of the respondents is that since petitioner had not paid the amount as per schedule, the allotment has been cancelled and, thereafter, the same has been allotted to someone else.

District Forum ordered the refund of the amount with interest and also awarded damages to be paid to the petitioner.

PETITIONER not satisfied with the order passed by District Forum, filed an appeal before Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short State Commission). State Commission vide its order dated 11.12.2008 dismissed the appeal of the petitioner as well as application for condonation of delay, as there was delay of ten days in filing of the appeal. However, State Commission further observed that if any vacant house in that area is still available, in the event, if the petitioner files an application for allotment of alternative house, the respondents may consider the same. Aggrieved by the decision of State Commission, petitioner has filed the present revision petition. Since, there is a delay of 692 days in filing of the petition, petitioner has filed an application for condonation of delay.

IN application for condonation of delay, it has been stated that after passing of the impugned order, her Advocate could not communicate her immediately. Thereafter, when petitioner came to know about the impugned order in the month of May, 2009, she immediately applied for certified copy of the impugned order, which was issued on 20.5.2009 and contacted the Advocate, who advised her to file writ petition but petitioner, being lady and in poor financial condition, it took some time for arranging the funds to file a case in the High Court, which ultimately was filed in May, 2010. Petitioner filed the writ petition due to wrong legal advice and she was granted liberty by the High Court to file this revision petition. The petitioner seeks benefit of Section 14 of Limitation Act due to the fact that writ petition was filed in the wrong Forum. It is further stated that due to above reasons, there is delay of 692 days in filing the revision petition, which is beyond the control of petitioner, not deliberate nor due to negligence on the part of the petitioner and, as such, the delay deserves to be condoned.

IT is well settled that each day delay has to be explained. The grounds seeking condonation of delay are that the petitioner is a lady having poor financial condition and thus, it took some time for arranging the funds for filing the case and due to wrong legal advice, she filed writ petition in the High Court.

AS per petitioners case, the impugned order was passed on 11.12.2008 and as such petitioners Advocate could not communicate with her immediately and she came to know about the passing of the impugned order in May, 2009. Petitioner, in the entire application has nowhere stated as to what was the source of her knowledge and how she came to know about the passing of the impugned order in May, 2009. The application for condonation of delay is absolutely silent on this aspect. Further, the case of petitioner is that it took some time for arranging the money and after arrangement of the amount, she filed writ petition in the High Court in May, 2009. It is nowhere stated as to how and from where petitioner arranged the funds nor there is any explanation as to how she has taken about one year for arranging the funds.

Taking the averments made in application for condonation of delay on its face value, even then, the petition is hopelessly time barred. The impugned order was passed on 11.12.2008, whereas, the writ petition in the High Court was filed in May, 2009, which ultimately was withdrawn on 29.9.2010. The present revision petition was filed on 3.2.2011.

THERE is no explanation at all, as to after withdrawal of the writ petition on 29.9.2010, what prevented the petitioner for not filing the present revision petition till 3.2.2011. THERE is no explanation in this regard nor the same has been pleaded in the application. Keeping in view the totality of the facts of the case, it cannot be said that petitioner was a lay woman, firstly, she filed complaint before the District Forum and then she filed appeal before the State Commission and after dismissal of her appeal, she filed writ petition in the High Court and, thereafter, she has come before this Commission.

IT is well settled that sufficient cause for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, held; No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that; There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.

IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.

SINCE, there is an unexplained delay especially for the period May, 2009 till May, 2010 and, thereafter, from 29.9.2010 till 3.2.2011, we hold that no sufficient cause nor any cogent reason has been shown which entitles the petitioner to have the delay condoned in her favour. Under these circumstances, application for condonation of delay being not maintainable, is hereby dismissed. Consequently, the present revision petition is not maintainable, as it is barred by limitation and the same is hereby, dismissed. Pending application also stands dismissed.