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Judgment
Mr. Prem Narain, J.
This appeal has been filed by the appellant against the order dated 30.01.2018 of the State Commission wherein appellant's right to file written statement has been closed. The learned counsel for the appellant stated that vide order dated 18.08.2017, appellant/opposite party was provided the copy of paper book and the next date of hearing was 30.01.2018. Learned counsel further stated that on 30.01.2018, the main counsel could not appear as one of his family member had passed away, therefore, the appellant/opposite party was represented by a proxy counsel. The State Commission has passed the order closing right of the opposite party to file written statement, however, the proxy counsel only intimated about next date of hearing to the main counsel. Thereafter, opposite party came to know from the website of the State Commission that its right to file written statement has been closed and this came to their notice only on 12.04.2018. Therefore, appellant has preferred this appeal. Earlier the appellant got legal advice to file revision petition against the order of the State Commission. However, later on it was advised that only appeal can be filed, therefore, the present appeal has been filed with a delay of 61 days. Thus, delay in filing the appeal has been caused due to the fact that the appellant came to know of the impugned order only in April, 2018 and then there was some confusion regarding whether revision petition would lie or appeal. Learned counsel for the appellant further stated that no prejudice will be caused to either party if appellant's written statement is taken on record as the same was ready on 30.01.2018, but as the main counsel was not present, same could not be filed with the State Commission. Learned counsel for the appellant further requested that it may be allowed to file written statement and to take part in the proceedings before the State Commission.
On the other hand, learned counsel for the respondent/complainant who is on caveat states that if written statement was ready on 28.01.2018, then it is not clear as to why the same has not been filed on 30.01.2018. Even if the main counsel was not present, the proxy counsel could have filed the same on behalf of the main counsel. He further stated that the application for condonation of delay of 61 days is quite vague and does not mention any specific reasons or dates for delay. No affidavit of the counsel has been filed. It is wrong to say that no prejudice will be caused to the complainant because evidence of the complainant has already been filed and if the written statement will be accepted at this stage, then opposite party will also get chance to file his evidence. At this stage, when the opposite party has already been permitted to take part in the proceedings to argue and to file written submissions, there is no need to take the written statement on record. Learned counsel further stated that no explanation has been given by the opposite party as to why it could not file its written statement in between from 18.08.2018 to 30.01.2018.
I have given a thoughtful consideration to the arguments advanced by both the learned counsel and have carefully examined the record available. It is true that there is a delay of 61 days in filing the present appeal. However, it is also true that taking of the written statement is also necessary as it gives the version of the other party and the forum gets to know the arguments of both the parties before deciding the complaint on merits. The delay is not an inordinate delay, therefore, I find it appropriate to condone the delay in the light of the judgment of Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, wherein the Apex Court has laid down:-
"From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
Relying upon the above authoritative judgments of the Hon'ble Apex Court and after considering the facts and circumstances of the case as well as the reasons mentioned in the application for condonation of delay, I deem it appropriate to condone the delay in filing the present appeal at a cost of ₹10,000/- to be paid by the appellant to the respondent/complainant within four weeks from today.
So far as the question of closing right of the opposite party to file the written statement is concerned, in the light of the judgment of the Hon'ble Supreme Court in the case of Reliance General Insurance Company Ltd. And another Vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. And another [Civil Appeal No.....of 2017 (D. No.2365 of 2017) decided on 10.2.2017, wherein consumer fora have been authorized to accept written statement filed with delay in appropriate cases on suitable terms and in the interest of justice as well as for final disposal of the case, I deem it appropriate to allow the opposite party to file the written statement before the State Commission within a period of 30 days from today subject to a cost of Rs.30,000/- to be given to the complainant within a period of four weeks by way of demand draft. Accordingly, the order dated 30.01.2018 of the State Commission, so far as it relates to closing right of the opposite party to file written statement, is set aside and the opposite party is permitted to file the same before the State Commission within a period of 30 days from today. The total cost of Rs.40,000/- be paid to the complainant within a period of four weeks from today. If the cost is not paid or the written statement is not filed within the time prescribed under this order, the order dated 30.01.2018 of the State Commission shall become valid and operative.
Parties are directed to appear before the State Commission on the date already fixed.