AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the appellant.
The second appeal has been filed challenging the order of the State Commission dated 26.06.2026 vide which the first appeal filed by the appellant herein was dismissed on account of limitation having been filed with a delay of 348 days. The appellant herein disputes the period of delay and submitted that the delay in filing would be roughly 100 days. A copy of the application filed by the appellant herein before the State Commission seeking condonation of delay has also been filed vide pages (101-108). In this application, the period of delay mentioned, for which condonation is sought, is 348 days. It is contended in this application that the appellant was not aware of the pendency of the consumer complaint before the District Commission as they were proceeded ex-parte vide order dated 05.08.2024 of the District Commission. Extracts of the relevant paragraphs of this application are reproduced below:
"6.That the perusal of the certified copy of interim orders reflects that the complaint in question was filed on 03.07.2025 and was put up before the Ld. Commission on 05.07.2024 for preliminary hearing. On 05.07.2024 the complaint was admitted and the Id. District Commission issued notice of the complaint to opposite parties for 05.08.2024. It is worth mentioning that it is not stated in the order dated 05.08.2024 by Ld. District Commission that the notice to opposite parties of the complaint can be issued by way of post (acknowledgement due) instead of in the mode of service laid down in Order V Rule X of CPC. Despite, the said scenario, while opposite party No.2 & 3 i.e., ADG, Gurdaspur and District Town Planning Officer were served by way of Dasti process, however for reasons unknown to the present appellant, he was not served by way of summons or in other words by way of personal service but it is stated that the summons was served to him by registered post. It is worth mentioning that in the absence of a specific direction by the Court the notice of the complaint cannot be sent to the opposite party/appellant herein by way of registered post selectively while issuing Dasti process to opposite party No.2&3. Thus, the very issuance of summons is defective.
7.The Service of summons by registered post only with regard to opposite party No.1/appellant is in violation to Order V Rule IX of CPC, 1908 & Order IX Rule X proviso and also in violation of Regulation X of Protection (Consumer Commission Procedure) Regulations, 2020. It is worth mentioning that as per Section 38 (9)(a) of Consumer Protection Act, 2019 which prescribes procedure on admission of complaint, the District Commission has some powers are vested in Civil Court under CPC, 1908 while trying a suit in respect of summoning and enforcing the attendance of any defendant/opposite party. In this manner the Ld. District Commission was under an obligation to comply with the procedure prescribed under Order V Rule IX of CPC, 1908 which deals with issue and service of summons. The Order V Rule IX specifically mandates that where the definition resides within the jurisdiction of this Court in which the suit is instituted to summons shall, unless the Court otherwise directs that, be delivered or sent either to the appropriate officer to be served by him or one of his subordinates but such courier services as approved by the Court. The expression used in Order V Rule IX is mandatory in nature as the word all has been used. Further as per Order V Rule X the mode of service is be of summons which shall be made by delivering or tendering a copy of the summons. There is an amendment in the rule with regard to Punjab which mandates that in case if the plaintiff so wishes the Court may serve the summons in the first instance by registered post acknowledgement dues) instead of in the mode of service laid down in this rule. However, in the present case the complainants/respondent No 1 to 3 have nowhere asked for service of summons by way of registered post. Nor the Ld. District Commissions states that the summons are to be served by way of registered post (acknowledgement dues). The perusal of order dated 05.07.2024 (A-2) mandates that the notice be issued to respondents and in the absence of any specific directions that the summons be served by way of registered post, the summons could not have been sent to the appellants by way of registered post. The only meaning which can be derived by reading order dated 05.07.2024 is that the issue which means that the notice is to be served by way of procedure prescribed under Order V Rule IX of CPC, 1908 and therefore the service is defective.
8.That the order dated 05.08.2024 proceeding appellants ex-parte is also in violation of Punjab and Haryana High Court Rules & Orders (Practice & Procedure) Volume 4 Chapter-7-B, Part B the service of process of mode of service in Civil matters is governed by Rules and Orders and the aforesaid Rule mandates that every attempt should be made to effect personal service in the first instance. It further mandates that as per order V Rule XX (i) Proviso added by amendment that the service by way of registered post can be done after the summons have been returned unserved for any reason whatsoever.
9.That it is worth mentioning that the appellant has been proceeded ex-parte on the basis of report that the appellant refused the service. It is worth mentioning that the appellant never received any summons from postal authorities and there is no occasion with appellant to not to appear before the Court. The registered cover refusal is extremely because while opposite party No.3 i.e., by respondents were chosen to be served by way of dasti process but only present appellant Le opposite party no.1 was chosen to serve by way of registered post. The refusal report is incorrect and based on the same the appellants cannot be proceeded ex-parte. The summons and service report of opposite party No.2 & 3 i.e., respondent No.4 & 5 herein are attached as Annexure A-2 & A-3 and the envelop reflecting alleged refusal of present appellant is attached as Annexure A-4.
10.That the appellant is filing the present appeal immediately on coming to know about the order dated 22.10.2024 and the delay in filing the present appeal is not deliberate and intentional and is on account of the fact that he was never served during the complaint and the order passed against him is an absolute nullity.
11.That the appellant came to know about the present impugned order dated 22.10.2024 when execution application was filed by the respondents wherein bailable warrants of appellant was issued and the said execution is now pending before the Ld. Court for 22.12.2025.
***
17.That the delay of 348 days in filing the present appeal is not deliberate and intentional and is on account of the aforesaid set of circumstances and the appellants sincerely regrets the same. In case the delay is not condoned the appellant would face irreparable loss and injury."
The State Commission, not considering the cause for delay to be sufficient, dismissed the application for condonation of delay and, consequently, the first appeal on account of limitation, after taking note of the facts of the case and various case laws as cited in its order. Extract of the relevant paragraphs of the orders of the State Commission is reproduced below:
"6.Admittedly, there is delay of 348 days in filing of the Appeal. Simply, it has been mentioned in the Application that the Applicant was not aware about the ex-parte order dated 22.10.2024 and he came to know about the said case when the bailable warrants were issued against him by the District Commission in the execution Proceedings. Further, the Applicant was not served properly as the notice was sent through Registered Post, which was not valid service. The District Commission had sent the notices through registered covered and the Applicant had refused to accept the same. In case the postman had made wrong report, he could have challenged the same before the Postal Authorities but no complaint was moved by the Applicant against that postman. When the District Commission has sent the bailable warrants in the execution proceedings then the Applicant had decided to challenge the impugned order of the District Commission. Moreover, there is presumption of service of the letter sent under registered cover. Had the same be returned back with the postal endorsement that the addressee had refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to produce evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered/sent the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies upon the party, challenging the factum of service but in the present case, the Applicant has failed to lead any evidence in support of his averments.
7.On hearing the oral arguments, the Counsel is to examine whether the delay in filing the Appeal has been properly explained. It is also to be seen as to whether the Applicant had acted with reasonable diligence in filing the Application for condonation of delay or not? After considering such arguments raised orally and the averments made in the Application it is to be seen as to whether the Applicant is entitled to the benefit of condonation of delay under the facts and circumstances of the case or it can be considered as a matter of right or it is to be seen whether the cause of delay has been properly explained by believing the reasons in occurring the delay for sufficient cause. It is also to be seen as to when the Court is to inquire whether in its discretion the delay should be condoned by believing the version of the Applicant or not. This aspect of the matter is to be seen by taking into consideration certain material/relevant facts and also to see as to whether there was any diligence on the part of the party or Bonafide reasons were there which may be considered for condonation of delay. However, the scope of inquiry or consideration while exercising the discretionary power after sufficient cause is to be seen that the stand taken in the Application are worth considering and convincing.
8.The burden is upon the Applicant to show that there was sufficient cause for the delay which had occurred in filing of any Petition/Appeal. The expression of 'sufficient cause' has been discussed and defined by the Hon'ble Apex Court in a number of cases by holding that the delay was on the part of the party or the Counsel and for that the sufficient and adequate as well as enough reasons were there. The word 'sufficient' is to be considered in case it is convincing and for good reasons, the delay has occurred which cannot be avoided. Meaning thereby, the facts and circumstances of the case are to be examined. From this point of view by adopting a reasonable standard of the person who has approached the Court for condonation of delay. The 'sufficient cause' means that the party had not acted negligently or had not remained inactive. The facts and circumstances of each case is required to see the sufficient ground to enable the Court concerned to exercise the discretion for the reason and said discretion is to be exercised judicially as the Applicant is to satisfy the Court that he was prevented by any sufficient reason from presenting his case before the Court. For that purpose, the satisfactory explanation so advanced by the party or the Counsel is to examine that inspite of taking all necessary steps, still party could not present his case well in time as per the provisions of law of limitation."
Section 51 (2) envisages a second appeal to this Commission if the case involves a substantial question of law. What constitutes a substantial question of law and how it differs even from mere question of law has been elaborated by the Hon'ble Supreme Court in Chandrabhan (Deceased) Through LRs & Ors. Vs. Saraswati & Ors. 2022 SCC OnLine SC 1273. Further, Section 51(3) states that such substantial of law needs to be listed in the memorandum of appeal. In the present case, the following substantial questions of law have been listed by the appellant in the memorandum of appeal:
A. Whether the learned District Commission committed a grave illegality by drawing a presumption of service and wrongly proceeded against the applicant ex parte, despite the fact that the envelope did not bear any endorsement as to who had allegedly refused to accept the summons, nor did it disclose the name or particulars of the person who attempted service upon the appellant?
B. Whether the learned State Commission erred in dismissing the appeal on the ground of limitation without appreciating that the applicant had been proceeded against ex parte and had filed the appeal immediately upon acquiring knowledge of the impugned order through service of warrants in the execution proceedings?
C. Whether the applicant was wrongly proceeded against ex parte despite not having been duly served, and whether the mandatory procedure prescribed under Order V Rule 10 of the Code of Civil Procedure, 1908, Order IX Rule 6 (Proviso), and Regulation 10 of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020, was violated?
D. Whether the learned State Commission and the learned District Commission failed to appreciate that every effort is required to be made to effect personal service upon a party in the first instance, and that, in the absence of such service, the applicant could not have been proceeded against ex parte?
K. Whether the order passed by the learned District Commission is in violation of the Punjab and Haryana High Court Rules and Orders, Volume IV, Chapter VII, Part B, which provide that service of process in civil matters is governed by the prescribed Rules and Orders and that every endeavour should be made to effect personal service in the first instance?
F. Whether the learned State Commission failed to appreciate the law laid down by the National Consumer Disputes Redressal Commission in Mrs. Metropolis Landholdings Pvt. Ltd. & Ors. v. Rupinder Kaur & Anr., 2019 (4) CPJ 16, First Appeal No. 1636 of 2018, decided on 24.05.2019, wherein it was held that drawing a presumption of deemed service under Section 28A of the Consumer Protection Act, 1986 (corresponding to Section 65 of the Consumer Protection Act, 2019) is not legally permissible, as such presumption may prove misleading and detrimental to the parties due to deficiencies in the postal service, and that the Consumer Form must exercise greater caution before proceeding against a party ex parte?
G. Whether the learned State Commission failed to appreciate that the delay in filing the appeal was neither deliberate nor intentional, but occurred due to circumstances beyond the control of the applicant?
The appellant has challenged the orders of the State Commission on following grounds:
State Commission failed to appreciate that the Appellant had specifically pleaded in IA No. 1724 of 2025 that he was never served in the complaint and came to know of the ex parte order only upon receiving summons in execution proceedings. The finding that the Appellant ought to have complained against the postman before raising the plea of non-service is patently perverse and illegal, as such a complaint is not a legal precondition for disputing service.
State Commission wrongly relied upon the presumption of service arising from registered post without appreciating that such presumption is rebuttable. The Appellant consistently asserted that the registered letter was never tendered to him, he never refused service, and therefore the presumption stood effectively rebutted.
Impugned order fails to address the Appellant's specific submissions and instead reproduces general legal principles regarding service of notice and limitation. The State Commission did not consider the Appellant's principal contention that the delay occurred solely because he had no knowledge of the ex parte order due to absence of valid service.
Service of summons upon the Appellant was illegal and defective. The order dated 05.07.2024 merely directed issuance of notice without directing service through registered post. While opposite parties No. 2 and 3 were served through Dasti process, the Appellant alone was selectively served by registered post without any judicial direction, rendering the service contrary to the prescribed procedure.
Service was in violation of Order V Rules IX and X CPC, Section 38(9)(a) of the Consumer Protection Act, 2019, and the Consumer Protection (Consumer Commission Procedure) Regulations, 2020. In the absence of any request by the complainants or direction by the District Commission for service through registered post, the mandatory procedure for personal service was not followed, making the service legally defective.
Ex parte order dated 05.08.2024 is also contrary to the Punjab & Haryana High Court Rules and Orders. The applicable rules require every attempt to effect personal service in the first instance, and service through registered post is contemplated only after summons are returned unserved. Further, the postal cover does not disclose who attempted service or how refusal was recorded, whereas the Appellant never received any summons and had no occasion to refuse service.
Appeal was filed immediately after acquiring knowledge of the ex parte order during execution proceedings, and therefore the delay was neither deliberate nor intentional. Any subsequent delay was attributable to the Appellant's advanced age of 69 years, his residence in a village approximately 30 kilometres from Gurdaspur and about 200 kilometres from Chandigarh, and the time required to obtain the certified record before filing the appeal.
State Commission ignored the Appellant's specific plea that the matter raises substantial issues on merits. The Appellant had obtained regularisation of Rana Enclave in 2017, but subsequently, along with his co-owners, sold the entire colony through an agreement to sell dated 09.07.2021, delivered possession to the purchasers, and thereafter a GPA was executed in favour of Ajay Gupta and Rahul Uppal, which was later cancelled.
After execution of the agreement to sell, the responsibility for development and compliance with the conditions of the regularisation certificate shifted to the purchasers. The sale deeds referred to in the complaint were executed by the GPA holders or purchasers themselves, and the complainants were fully aware that the Appellant had already transferred the project. Nevertheless, the Appellant alone was impleaded while the actual purchasers and GPA holders were deliberately omitted.
Complaint is misconceived and filed against the wrong person. Certain plots were admittedly not sold by the Appellant, while others were purchased by third parties. The complainants, particularly Gurjit Singh, were fully aware of the subsequent transactions, GPAs, and sale deeds, yet procured an ex parte order against the Appellant by relying upon an incorrect report of refusal and concealing the material fact that the entire Rana Enclave had already been sold. Hence, the impugned order deserves to be set aside and the delay in filing the appeal ought to be condoned.
The Appellant has also relied on the following judgments passed by the National Commission, Hon'ble Supreme Court as well as by the Hon'ble High Court of India:
M/s Metropolis Land Holdings Pvt. Ltd. & Ors. v. Rupinder Kaur & Anr., 2019 (4) C.J.P. 16, First Appeal No. 1636 of 2018, decided on 24.05.2019.
Dr. P.K Harza Medical Officer v. Malabika Bhattacharya, 2018 (1) C.L.T. 50, First Appeal No. 1625 of 2017, decided on 05.09.2017.
Lifestyle Equities C.V. & Anr. v. Amazon Technologies Inc., 2025 INSC 1190, decided on 07.10.2025.
Basant Singh v. Roman Catholic Mission, reported in (2002) 7 SCC 531.
Sushil Kumar Sabharwal v. Gurpreet Singh & Ors., reported in (2002) 5 SCC 377.
M/s Unnati Industrial Corporation Vs. M/s Balbir Singh and Company Law Finder Doc. Id. 2799239.
The main question for consideration is whether in the facts and circumstances of the case the State Commission was justified in declining condonation of delay in filing the Appeal and dismiss it as barred by limitation. We have carefully gone through the orders of the State Commission, other relevant records and contentions of the Petitioner herein. We have also considered the reasons for delay as contained in the condonation of delay application filed by the petitioner herein before the State Commission in the light of observations of Hon'ble Supreme Court and this Commission in various cases.
In Sheo Raj Singh (deceased) through Legal Representative and Ors. Vs. Union of India and Anr. (2023) 10 SCC 531, Hon'ble Supreme Court observed that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the lengths of delay being immaterial, each case for condonation of delay based on the existence or absence of sufficient cause has to be decided on its own facts and that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below. In Basawaraj and Another. Vs. Special Land Acquisition Officer (2013) 14 SCC 81, the Hon'ble Supreme Court observed that when a case is filed beyond the limitation period, the applicant must demonstrate "sufficient cause," meaning an adequate and enough reason for not approaching the court within the prescribed time. If the party is found to be negligent, lacking bona fides, or not acting diligently, there is no justified ground for condoning the delay. Courts are not justified in condoning such delays by imposing any conditions and must adhere to the established parameters for condonation of delay. Condoning delay without sufficient cause and proper justification would violate statutory provisions and show disregard for legislative intent. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649], the Hon'ble Supreme Court expressed concern over the growing tendency to perceive delay as a trivial matter and to exhibit a lackadaisical attitude towards it, which needs to be addressed within the confines of legal parameters. In Popat Bahiru Govardhane v. Land Acquisition Officer, (2013) 10 SCC 765, the Supreme Court affirmed the principle that the law of limitation must be applied rigorously as prescribed by statute, even if it causes hardship to a particular party. The court cannot extend the limitation period on equitable grounds. In H. Dohil Constructions Co. (P) Ltd. v. Nahar Exports Ltd., (2015) 1 SCC 680, the Hon'ble Supreme Court emphasized that the law of limitation is based on sound public policy, and therefore, applications for condonation of delay should be strictly construed in the absence of genuine reasons. Hon'ble Supreme Court in Pathapati Subba Reddy v. LAO, 2024 SCC OnLine SC 513 observed that the law of limitation is rooted in the public policy of concluding litigation by forfeiting the remedy rather than the right itself, emphasizing that rights or remedies not exercised within a specified time should cease to exist. In State of M.P. v. Bherulal, (2020) 10 SCC 654, the Supreme Court observed that the notion that merit in a case justifies disregarding a period of delay is preposterous. Regardless of a case's merit, the limitation period can bar its consideration, potentially excluding even strong cases. However, this does not negate the court's jurisdiction to condone delay in appropriate circumstances. In Bappanand Narshimman Annu Vs. Hirmanidevi G.S. Gupta & Ors., 2016 SCC OnLine NCDRC 2605, the National Commission observed that in accordance with the broad principles established by numerous decisions of the Hon'ble Supreme Court, the term 'sufficient cause' cannot be interpreted liberally when negligence, inaction, or lack of bonafides are attributable to the party seeking such discretion. Emphasizing the importance of applying the statutory period of limitation rigorously, the Commission observed that unlimited leniency in time limits fosters uncertainty.
Hon'ble Supreme Court, in Manjunath Anandappa (Supra), stated that appellate courts generally should not intervene with the discretion exercised by lower courts. This principle is affirmed in U.P. Coop. Federation Ltd. v. Sunder Bros (AIR 1967 SC 249), where it is emphasized that appellate courts should be hesitant to interfere with the exercise of discretion by trial courts. The appellate court should not replace its own discretion for that of the trial judge unless the trial court has acted unreasonably, capriciously, or ignored relevant facts. Additionally, in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, it is highlighted that appellate courts should intervene only when the lower court's order is clearly wrong, not just when it is not right.
Primarily, it is the satisfaction of the fora considering the application for condonation of delay about the sufficiency of cause and we cannot substitute our satisfaction unless it is shown that the fora below improperly exercised its discretion to consider the application for delay based on untenable, arbitrary, or perverse grounds and/or its order suffers from any illegality or material irregularity.
We have carefully considered the orders of the State Commission, the District Commission, other relevant records, and the contentions of the appellant herein. Although, in the paper book, only typed copy (which is claimed to be downloaded from the site of the District Commission) of the District Commission's order was placed on record, during the hearing, photo copy of the certified copy of the District Commission's order was placed before us. A perusal of this copy clearly indicates that the copy of the District Commission's order dated 22.10.2024 was sent to the OPs on 23.10.2024. In normal course, such communication would reach the party within a maximum of about 7 days' time, unless proved otherwise. Further, our attention was drawn to the order dated 05.08.2024 of the District Commission vide which the appellant herein was proceeded ex-parte. This order records that the notice issued to the appellant herein (who was OP-1 before the District Commission) has been received back with a report of refusal. The said order is reproduced below:
Dated : 05.Aug.2024
Order
Present: Sh.Balbir Singh Gill, counsel for the complainants.
Notices were issued to the opposite parties. As per report of clerk R.C. of opposite party no.1 has been received back with the report of 'Refusal'. Refused report of service conveys that opposite party no.1 has been served but he is intentionally evading the service of the notice. Opposite parties no 2 and 3 have been served through dasti notices/summons. Case called several times but none has appeared on behalf of opposite parties. It is now 4.00 P.M. Hence, opposite parties are ordered to be proceeded against exparte. Now case is adjourned to 20.8.2024 for filing of written arguments by the complainant.
After careful consideration of the facts and circumstances of the case, we are of the view that the District Commission was justified in proceeding ex-parte against the appellant herein on account of their refusal to accept the notice. Further, the copy of the order dated 22.10.2024 of the District Commission was sent to the appellant herein on 23.10.2024. Allowing a reasonable period of about 7 days from this date, the limitation to file the appeal has to start from that date. Hence, there was a delay of more than 300 days in filing the first appeal before the State Commission. The State Commission have duly considered the facts of the case and the evidence before it and was justified in dismissing the application seeking condonation of delay. We are in agreement with such findings of the State Commission and find no reason to interfere with the same. There is no illegality or material irregularity in the orders of the State Commission. Accordingly, order of the State Commission is upheld. Consequently, second appeal is dismissed.
Registry of NCDRC is directed to send a copy of this order (free certified copy) to both sides, in particular the Respondent(s), on the address given in the Memo of Parties, within a maximum period of one week from the date of this order.
Pending IAs, if any, also stand disposed off.