No.14/25.05.2015

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This order relates to hearing on MA 256 of 2015 and MA 347 of 2015.

            MA 256 of 2015 has been filed by the Respondent/Misc. Applicant as per the direction of the Hon'ble High Court, Calcutta in C.O. 463 of 2015 to raise the point that the Appeal was filed without certified copy and it was applied for after the expiry of the period of limitation.  It is contended that when the Memo of Appeal was filed it was already time barred and, as such, the Appeal was not maintainable and it should be dismissed.

            It is submitted by the Respondent/Misc. Applicant that the filing of the Appeal without the certified copy rendered the Appeal not maintainable.  It is contended that when the certified copy was applied for the Appeal already stood time barred.

            The Learned Counsel for the Appellant has submitted that the Learned Advocate who conducted the case before the Learned District Forum did not obtain the certified copy within time and for such omission on the part of the Learned Advocate, the client cannot suffer.  It is contended that the undertaking was given at the time of filing the Appeal on 21/10/13 that the certified copy of the judgment will be submitted by 28/10/13 and in fact it was filed on 24/10/13. 

            We have heard the submission made by both sides and perused the papers on record.  The fact remains that the impugned judgment was delivered by the Learned District Forum on 19/07/13 and the Appeal was filed on 21/10/13.  The Memo of Appeal clearly shows that delay condonation petition was enclosed along with the Memo of Appeal and in fact the delay was condoned vide order no.2 dated 19/11/13 on payment of cost of Rs.1,000/- to be paid by the Appellant to the Respondent/Complainant.  On 07/01/14 the Respondent refused to accept the cost and the Appellant was directed to deposit the cost with the SCWF.  The cost was, accordingly, deposited. 

               The Respondent filed MA 535 of 2014 contending that the Appeal was not maintainable as it was filed without the certified copy of the impugned judgment.  Upon hearing both sides such application was dismissed on 09/01/15 and the Appeal was fixed for hearing.  The Respondent moved the Hon'ble High Court, Calcutta against the order of dismissal of the MA 535 of 2014 and the Hon'ble High Court, Calcutta made the following observation.

“To my mind, the Commission ought not to have dismissed the said application without satisfying itself as to whether the certified of the impugned order was applied within the statutory period or not. Once the limitation intervenes, in the absence of any prayer for condonation of delay, the Court ought not to have taken the said application to be filed validly.”

This Court, therefore, grant liberty to the petitioner to raise such an issue before the State Commission by filing a substantive application and the State Commission shall decide the same in the light of the observations made hereinabove.  It is expected that the disposal shall come without unreasonable delay.”

                It appears that the certified copy of the order was applied for on 22/10/13 and it was made ready for delivery on 22/10/13.  It was delivered on the same date.  Obviously it was applied for after the expiry of the period of limitation.  Since this Commission has been directed to decide this issue in the light of the observation made in the order dated 17/02/15 in C.O. 463 of 2015, we are of the view that the Memo of Appeal filed without the certified copy of the impugned judgment was not maintainable. 

             The MA 256 of 2015 is allowed.  The Appeal is dismissed being not maintainable without certified copy of the impugned judgment.  The MA 347 of 2015 is also disposed of.