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Judgment
Karuna Nand Bajpayee, Presiding Member
This revision petition has been filed under section 58(1)(b) of the Consumer Protection Act, 2019 in challenge to the Order dated 07.03.2023 of the State Commission in appeal no. 09 of 2023 arising out of the Order dated 11.11.2022 of the District Commission in complaint no. 284 of 2020.
It appears that the earlier second appeal no. 20 of 2023 was filed by the revisionists (the ‘complainants’) and the following Order dated 03.05.2023 was passed by this Commission therein. The relevant paragraphs of the said Order are reproduced below for reference:
This second appeal no. 20 of 2023 has been filed under Section 51(2) of the Act 2019 apropos the State Commission’s Order dated 07.03.2023 in first appeal no. 09 of 2023 arising out of the District Commission’s Order dated 11.11.2022 in complaint no. 284 of 2020.
Learned counsel for the appellants (the ‘complainants’) submits that the complainants are aggrieved with the impugned Order of 07.03.2023 since not only has the State Commission erred in calculating the period of delay in filing first appeal before it but has also erred in holding that sufficient cause to condone the delay was not forthcoming. Submission is that the State Commission has committed jurisdictional error and acted with material irregularity. Learned counsel further submits that the complainants wish to withdraw their present second appeal and in its stead want to file revision under Section 58(1)(b) of the Act 2019.
In the wake of the above submissions the second appeal is dismissed as withdrawn with liberty to the complainants to file revision under Section 58(1)(b) of the Act 2019.
Heard the learned counsel for the revisionists (the ‘complainants’). Perused the record including inter alia the Order dated 11.11.2022 of the District Commission, the impugned Order dated 07.03.2023 of the State Commission and the petition.
The State Commission vide its impugned Order dated 07.03.2023 dismissed the appeal of the complainants being barred by limitation with the observations which read as follows:
Having regard to the statutory position discussed in para supra and the facts of the case, the applicants/appellants have failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellants seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
The submission of the learned counsel for the complainants is that the State Commission has committed a gross error in calculating the period of limitation while dismissing the appeal of the complainants vide its Order dated 07.03.2023 and has completely missed to advert to or attribute any significance to the date when the free certified copy of the impugned Order was provided to the complainants. The contention is that the State Commission has only taken into account the date of Order i.e. 11.11.2022, when the District Commission passed its Order and not the date when the free certified copy of the impugned Order was supplied to the complainants as per rules and regulations but which was of crucial relevance. The submission is that on that reckoning, the complainants had filed the appeal in the State Commission well within the limitation period as prescribed by the law. It has also been submitted that Hon’ble Supreme Court has also adverted to this aspect in a different matter and has taken a view which favours the contention of the complainants. Learned counsel relied upon the decision given by Hon’ble Supreme Court in the case of Housing Board, Haryana vs. Housing Board Colony Welfare Association & Ors. (1995) 5 SCC 672. Learned counsel has drawn the attention of the Bench to observations made in the afore said decision whereby the need, the significance and the crucial relevance of the time when the free copy of the Order is provided to the party has been expatiated upon for the purpose of counting the period of limitation. The aforesaid decision was also quoted and referred to in the application seeking condonation of delay in filing the appeal before the State Commission. It has been submitted by the learned counsel that in the impugned Order passed by the State Commission this aspect, which focused on the date of supply of the free certified copy of the impugned order to the complainants has completely been ignored and the State Commission has glossed over this germane legal aspect to the utter detriment of the complainants.
It has been further pointed out that even though the contents of the application seeking condonation of delay have been referred to in the impugned Order, despite that there is absolutely no discussion or views expressed with regard to aforesaid decision of Hon’ble Supreme Court which was relied upon by the appellant. Further submission is that even otherwise, in the circumstances of the case it is very much clear that the said presumed delay in filing the appeal before the State Commission was also so insignificantly small that in all fairness in order to meet the ends of justice and not to leave the complainants remediless, the State Commission ought to have condoned the delay as there was convincing explanation for the alleged delay which constituted sufficient case to condone the same. The submission is that the facts and circumstances of the case are such that no negligent conduct or deliberate intention on the part of the complainants to delay the filing of appeal could be adversely inferred or evinced out.
The Bench has perused the record, in the light of the submissions made by the learned counsel for the complainants.
It may be useful to quote some relevant paragraphs of the application moved before State Commission seeking condonation of delay in filing the appeal which read as follows:
That the above-caption Appeal was listed before this Hon’ble Commission on 17.01.2023 wherein this Hon’ble Commission was prima facie of the opinion that the appeal is time barred, hence the Appellants shall file the application seeking condonation of delay in filing the appeal.
That without prejudice to the rights of the Appellants the present application for condonation of delay is being fled only in compliance of the directions given by this Hon’ble Commission. It is hereby pertinent to mention that the filing of the present application does not in any manner amounts to admission on part of the Appellants with respect to any delay in filing the captioned appeal.
That it is outrightly and humbly submitted that there is no delay in filing of the present appeal against the final order / judgment dated 11.11.2022 passed by the Ld. District Consumer Disputes Redressal Commission-VII, District-South West, Dwarka, Delhi in case bearing CC No. 284 of 2022.
That the Appellants had not received the free copy of final Order dated 11.11.2022 passed by the District Consumer Disputes Redressal Commission-VII, District-South West, Dwarka, Delhi in case bearing CC No. 284 of 2020, in compliance of Regulation 21 of Consumer Protection (Consumer Commission Procedure) Regulations, 2020, nor had any information whatsoever as regard passing of the impugned order dated 11.11.2020.
That on 29.11.2022, the Counsel appearing for the Appellant before the Ld. DCDRC, went to the Ld. DCDRC-VII, District-South West, Dwarka to enquire about the status of the judgement, if any passed in the mater which was pending before the Ld. DCDRC, to which it came to his knowledge that the final order in the matter has already been passed and the first / free copy of the impugned Order was provided to the said counsel on te same day i.e. on 29.11.2022. The copy of the impugned Order which is attached to the appeal is the same first / free copy of the Order which the Appellants have right to receive in accordance with the aforesaid regulations, which was handed over Dasti to the said counsel by the registry of the Ld. DCDRC.
That it is submitted that the though the impugned Order in the captioned appeal is passed on 11.11.2022 but the limitation for filing the captioned appeal commences / runs / reckons from the date of receiving of the free copy of the Order and not from the date of the order and not even from the date of pronouncement of the order. It is submitted that since the Ld. DCDRC’s impugned order first / free certified copy to be provided to the parties was itself provided to the complainant therein / appellant herein on 29.11.2022, therefore, period of limitation of 45 days as prescribed in Section 41 of the Consumer Protection Act, 2019 shall commence from the said date only. The said view has already been taken by the Hon’ble Supreme court of India in Housing Board, Haryana Vs. Housing Board Colony Welfare Association & Ors., (1995) 5 SCC 672.
That on computing the limitation period of 45 days from 29.11.2022, the limitation would end / expire on 13.01.2023 whereas the captioned appeal was filed on 09.01.2023 i.e., within the limitation period. Therefore, there is no delay in filing the captioned appeal, but still the present application is being filed by the appellant in compliance of the order dated 17.01.2023 and as a matter of abundant precaution.
That it is humbly submitted that although there is no delay in filing the captioned appeal but if this Hon’ble Commission is of the view that there is any delay then the delay may kindly be condoned in the interest of justice for the reasons already mentioned above particularly in view of the fact that passing of the judgement / final order by the Ld. DCDRC / impugned order challenged herein, was not in the knowledge of the appellant.
That this present Application is bona fide and in the interest of justice.
A perusal of the impugned Order dated 07.03.2023 of the State Commission shows that the aforesaid aspect of the matter which has been emphasized by the learned counsel for the complainants and which relates to commencement and counting of the period of limitation and the views expressed by Hon’ble Supreme Court in the decision of Housing Board, Haryana (supra) and the observations made therein in this regard have completely escaped the attention of the State Commission. There is hardly any observation made regarding the same in its impugned Order. If the State Commission found the aforesaid case distinguishable, it could have very well given its reasons in this regard. But nothing of that sort has been done. It is difficult to speculate what view would have been taken by the fora below had it considered the aforesaid aspect. The Bench is of the considered view that the present matter ought to be remanded back to the State Commission to reconsider the same afresh and to arrive at its findings in that perspective afresh. While reconsidering the matter the State Commission would also do well to keep in perspective the fact that in this case the complainants have pleaded to have acquired the knowledge of the Order on the same date when its free copy had been supplied to them, and not before it. This is not a case in which there is any material to convincingly show or demonstrate that even before this supply of free certified copy, the complainants had acquired the knowledge of the Order and then negligently or deliberately or intentionally did not bother to receive or obtain its copy. Beside that it may be further observed that even the view taken by the State Commission regarding the sufficiency or insufficiency of cause to condone the delay in filing the appeal also appears to be a little harsh, if not inclement, leaving the complainants remediless. The doors of justice could better have been kept ajar in the peculiar circumstances of the case.
Sequel to the above the impugned Order dated 07.03.2019 is set aside and the case is remanded back to the State Commission with the request that it may decide the matter in issue afresh in view of the observations made herein above and proceed further as per the law.
The complainants are directed to appear before the State Commission on 23.08.2023.
The Registry is requested to send a copy of this Order to the complainants and to their learned counsel within three days. It is further requested to most immediately send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.