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Judgment
Heard Mr. Chaitanya G Barapatre, Advocate, for the petitioner.
This revision has been filed against the order of State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur dated 20.12.2019 and 07.01.2021 passed in First Appeal No. A/15/178 of 2015 (arising out of the order of District Consumer Disputes Redressal Forum, Nagpur dated 25.02.2014, passed in Consumer Complaint No.633 of 2012) whereby State Commission has rejected the application for condonation of delay in filing the application for setting aside abatement and substituting the heirs of Smt. Shakuntala Prakash Choudhari (sole respondent) and dismissed the appeal as abated.
Smt. Shakuntala Prakash Choudhari (the respondent) filed Consumer Complaint No. 633/2012, for directing the petitioner to deliver possession of (i) flat No. 33 (admeasuring 550 Sq.ft.), at third floor of the building E-6 (ii) flat No. T-52 (admeasuring 825 sq.ft.), at 5 th floor, in the building named as Tower over plot No. 198 and 309, at Vyankatesh Nagar, Nagpur to her and execute sale deeds in respect of aforementioned flats, in alternative to pay present market price of these flats or give other flats of the same area in same locality and execute sale deeds of those flats in her favour, to pay Rs.50000/- as compensation for mental pain and agony, Rs.5000/- as cost of the litigation and any other relief which may deem fit and proper. It was stated that the petitioner advertised for construction of residential flats at Vyankatesh Nagar, Nagpur, in 2005. The respondent paid Rs.4,25,000/- and Rs.6,40,000/- respectively on 17.01.2005 for the aforesaid flats and agreements in her favour were executed by the petitioner (the developer) and the owner of the land. The complainant also paid Rs.23000/- for electricity connection and meter. Under the agreement, possession over the flats had to be delivered in 18 months. However, due to some dispute with the land owners, the construction could not be started at the time of agreement. The dispute with land owners was settled on 14.10.2006. Then the constructed was started in 2007 and completed in 2011. The complainant requested to execute sale deeds of the flats in her favour and hand over possession of the flats to her but the petitioner was avoiding her requests. The complainant gave legal notice on 04.07.2012 but in spite of service of the notice neither any reply was given nor sale deeds were executed. On these allegations, the complaint was filed on 10.09.2012.
In spite of service of the notice, the petitioner did not appear before District Forum. Therefore, the case was proceeded exparte against him. After recording evidence of the complainant, the complaint was partly allowed by order dated 25.02.2014. The petitioner filed First Appeal No. A/15/178 of 2015 from the aforesaid order. State Commission issued notice to the respondent on 02.12.2015, which was returned back with endorsement that the respondent was dead. State Commission, thereafter, granted time to the petitioner for substituting the heirs of the respondent on various dates. But the petitioner did not file any substitution application and after some times, started committing default in appearing before State Commission as such the appeal was dismissed in default by order dated 25.01.2017. The petitioner filed Revision Petition No. 3702 of 2017, against the order dated 25.01.2017. This Commission allowed the revision by order dated 26.03.2018 and remanded the matter for deciding the appeal on merit.
The petitioner filed an application for substituting the heirs of the respondent on 28.06.2018. Notice of this substitution application was issued to the proposed heirs. The proposed heirs of the respondent filed an objection that substitution application was long barred by limitation and neither an application for setting aside abatement nor an application for delay condonation was filed. Then the petitioner filed an application for condonation of delay in filing the substitution application and another application for setting aside abatement dated 18.01.2016, on 10.04.2019. State Commission by the impugned order dated 20.12.2019 held that Smt. Shakuntala Prakash Choudhari (sole respondent) died on 09.10.2015. The notice issued to the respondent in the appeal on 02.12.2015, was returned back with endorsement that the respondent was dead. Thereafter, the petitioner was granted time for filing substitution application. The application for setting aside the abatement was filed on 10.04.2019. There is absolutely no explanation for condonation of inordinate delay of three years 100 days. On these findings delay condonation application and applications for setting aside abatement and substitution were rejected. By a subsequent order dated 07.01.2021, the appeal was dismissed as abated. Hence this revision has been filed.
We have considered the arguments of the counsel for the petitioner and examined the record. A perusal of delay condonation application and application for setting aside abatement dated 10.04.2019, shows that the petitioner had knowledge of the return of the notice issued to the respondent with endorsement that the respondent was dead, in the appeal, from very beginning. Smt. Shakuntala Prakash Choudhari (sole respondent) died on 09.10.2015. Her death came to the knowledge of the petitioner at least through endorsement in the notice, in January/February 2016.
By virtue of Section 13 (7) of the Consumer Protection Act, 1986, the provisions of Order 22 of Civil Procedure Code, 1908 has been applied to the proceedings before the consumer forum. Order 22 Rule 4 C.P.C. requires for substituting the heirs of the deceased opposite party/respondent within 90 days of the death. If no application for substitution of deceased opposite party is filed within 90 days of the death, the appeal is abated against him after expiry of 90 days under Order 22 Rule 4 (3) C.P.C. Order 22 Rule 9 C.P.C. provides for filing of application for setting aside abatement. Under Article 120 of Limitation Act, 1963, 90 days limitation from the date of death, has been provided for filing substitution application. Under Article 121 of Limitation Act, 1963, 60 days limitation has been provided from the date of abatement, for filing application for setting aside abatement. Accordingly substitution application ought to have been filed till 07.01.2016. The appeal was abated on 08.01.2016 and limitation for filing the application for setting aside abatement was up to 08.03.2016. The application for setting aside abatement was filed on 10.04.2019. Neither in the application for condonation of delay nor in the application for setting aside abatement, any reason has been given for not filing the substitution application or application for setting aside abatement in time nor any cause has been shown for condonation of delay.
Supreme Court in Esha Bhattacharjee Vs. Raghunathpur Nafar Academy, (2013) 12 SCC 649 has laid down following principles for condonation of delay:-
"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.
21.2. (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.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (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.
21.5 (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.
21.7. (vii) The concept of liberal approach has to encapsulate 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. (xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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. (xv) 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. (xvi) 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. (xvii) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-chalant manner requires to be curbed, of course, within legal parameters."
Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578 has held that Consumer Protection Act, 1986 provides special limitation for expeditious adjudication. If the Consumer Forum/Commission condones inordinate delay without assigning any reason then the object of the would be defeated. In H. Dohil Construction Company Pvt. Ltd. Vs. Nahar Export Ltd. (2015) 1 SCC 680 has held that law of limitation is based upon sound public policy. In the absence of bonafide reasons, delay should be construed strictly. In Shanti Devi Vs. Kaushalya Devi, (2016) 16 SCC 565 , has held that in the absence of any explanation, the delay cannot be condoned.
ORDER
In view of the aforesaid discussions, the revision is dismissed.