(Delivered on 11/05/2023)
PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.`
1. Petitioner- Bashir Ahmad has preferred the present Revision petition challenging the impugned order dated 06/11/2019 passed by the learned District Consumer Commission, Gondia by which application filed by the respondent /complainant for condonation of delay came to be allowed.
2. Short facts leading to filing of the petition may be stated as under,
Respondent/complainant–Javed s/o Salamkhan Pathan had preferred Consumer Complaint regarding deficiency in service under the Consumer Protection Act against the Petitioner/O.P.-Bashir Ahmad since there was delay in filing the complaint. Complainant / respondent has also filed an application for condonation of delay in preferring the complaint. Complainant /respondent has contended that he had received Suit Summons from the Court of Civil Judge (Junior Division), Gondia in Regular Darkhast No. 1/2009. The complainant /respondent thereafter approached the O.P./petitioner -Bashir Ahmad who was practicing advocate and appointed him to conduct his matter. The complainant / respondent was informed by the O.P./petitioner -Bashir Ahmad that Civil Suit bearing No. RCS No. 156/2005 had proceeded exparte and so the complainant had prefer an appeal. The complainant has alleged that he also paid a sum of Rs. 50,000/- towards the fee but the complainant found that no appeal was filed by the O.P.-Bashir Ahmad and so MJC bearing No. 48/2011 came to be filed on 21/10/2011 but the same was dismissed. The complainant thereafter, preferred an appeal before the Hon’ble High Court, Bench at Nagpur and same was also dismissed on 28/06/2013. The complainant thereafter also filed the complaint before the Lok Aayukta against the O.P./petitioner on 16/04/2016 and also lodged the complaint before Bar Council of Maharashtra and inquiry had also started. The complainant has contended that no inquiry was conducted in complaint by the Superintendent of Police, Gondia against the O.P. The complainant has thereby explained the delay in filing the complaint. The complainant has taken a plea that he was a layman and was also ignorant of law having studied up to 10th standard and so delay in filing the complaint was bonafide and needs to be condoned.
3. After filing of application due notice was issued to the non applicant/O.P. The Non applicant /O.P. has categorically denied all the contentions and has contended that the application for condonation of delay cannot be termed as bonafide. Non applicant /O.P. has denied that the non applicant did not get knowledge regarding filing of the consumer complaint. Non applicant /O.P. has admitted that the applicant /complainant had filed the Writ Petition before the Hon’ble High Court, Nagpur Bench and same was dismissed on 28/06/2013. The non applicant /O.P. has also admitted that the applicant /complainant had also filed the complaint with Bar Council of Maharashtra. Non applicant /O.P. has contended that there was huge delay in filing the complaint and the same cannot be attributed to ignorance of law on the ground that complainant was a layman. Finally the non applicant /O.P. has contended that applicant has not given satisfactory grounds for condonation of delay of more than six years and so application needs to be dismissed.
4. The learned District Consumer Commission, Gondia went through the application for condonation of delay as well as reply and also documents annexed with the same. The learned District Consumer Commission, Gondia thereafter allowed the application for condonation of delay subject to cost of Rs. 1,000/- by order dated 06/11/2019. Against this impugned order dated 06/11/2019 the present petitioner/non applicant has come up in Revision Petition.
5. We have heard Mr. Kshirsagar, learned advocate appearing for the petitioner and Mrs. Nandini Thete, learned advocate appearing for the respondent. It is argued by the learned advocate for the petitioner that the learned District Consumer Commission, Gondia has not appreciated the facts and the application for condonation of delay and has given findings which were erroneous in nature. It is submitted by the learned advocate for the petitioner that the learned District Consumer Commission, Gondia had not appreciated that the cause of action in filing the complaint regarding deficiency in service had arisen in the year 2011 whereas the Consumer Complaint came to be filed by the complainant/respondent on 17/05/2019 after the delay of more than 8 years but this aspect was not considered properly. On the other hand, Mrs. Nandini Thete, learned advocate appearing for the respondent /complainant has submitted that the Revision Petition is not tenable and there was also a continuous cause of action to the respondent /complainant to file the complaint regarding deficiency in service. Further it is argued by Mrs. Nandini Thete, learned advocate for the respondent /complainant that the respondent / complainant was litigant as well as Consumer and was also a layman having passed 10th standard and therefore was not having any knowledge of law. The learned advocate for the respondent/complainant has supported the findings given by the learned District Consumer Commission, Gondia and has submitted that there is no need to interfere in the impugned order dated 06/11/2019.
6. Now in order to appreciate the contentions certain material facts need to be stated. The respondent /complainant has come with the case that he had received Suit Summons from the Court of Civil Judge( Junior Division) in R.D. No. 1/2009 on 16/02/2009. The respondent /complainant thereafter contacted the petitioner -Bashir Ahmad who was an advocate and appointed as him advocate. The respondent/ complainant has stated that exparte order had come to be passed in Regular Civil Suit No. 156/2005 on 08/01/2008. Petitioner -Bashir Ahmad told the complainant that he will have to prefer an appeal and also demanded Rs. 50,000/- to file an appeal but no appeal came to be filed despite receiving the fee. The complainant thereafter filed MJC No. 48/2011 on 21/10/2011 but same was dismissed on 18/01/2013.The respondent/complainant then preferred an appeal Before the Hon’ble High Court, Nagpur Bench but same was dismissed on 28/06/2013 and complainant was given understanding to take action against the concerned advocate. The complainant thereafter filed the complaint before Lok Aayukta, Mumbai on 16/04/2014 and also filed one complaint before the Bar Council of Maharashtra and inquiry was also started. The complainant also lodged the complaint with Police Station, Gondia on 13/05/2013 but no relief was given. The complainant thereafter filed the complaint on 02/04/2019.
7. If we go through the contents of the application filed by the complainant though it was necessary to file the Consumer Complaint within a period of two years from 13/05/2013 the complainant could not do so merely due to lack of any knowledge of the procedure and he filed the consumer complaint only on the basis of his own understanding as a layman. It is submitted by Mr. Kshirsagar, learned advocate appearing for the petitioner/ O.P. that inordinate delay of 8 years cannot be condoned and ignorance of law cannot be pleaded as an excuse. On the other hand, Mrs. Nandini Thete, learned advocate for the respondent /complainant has submitted that looking to the grounds pleaded by the complainant no narrow construction can be given to the period of limitation and liberal view have to be taken considering the position of the complainant as a layman. It is also contended by Mrs. Nandini Thete, learned advocate for the respondent /complainant that fraud and cheating had taken place with the complainant who was a Consumer as despite receipt of fee, the petitioner had not filed any appeal nor taken any steps due to which the petitioner was deprived from justice and recourse of law.
8. It is argued by Mr. Kshirsagar, learned advocate for the petitioner that inordinate delay of 8 years cannot be condoned in the absence of sufficient cause. On this aspect Mr. Kshirsagar, learned advocate has heavily relied upon judgments of Hon’ble Supreme Court as well as Hon’ble National Commission. At the outset he has relied upon the judgment of the Hon’ble Supreme Court in the case of Cicily Kallarakai Vs. Vehicle Factory, reported in IV(2012)CPJ (SC) 1. In that case there was delay of 1314 days in filing the petition and same was due to the fact that the petitioner was in hospital. It was observed that the reasons given were not sufficient to condone the delay. Further he has relied upon one judgment of Hon’ble National Commission in the case of Max Newyork Vs. Maqbul Husain, reported in 2015(4) CPR 620 (NC). In that case there was delay of 100 days and same was due to repeated defaults on the part of counsel and delay was not condoned. Further he relied upon one judgment of Himachal Pradesh State Consumer Commission, Shimla in the case of Suresh Kumar Vs. Raj Kumar, reported in I (2021) CPJ 183 (HP). In that case also plea was taken that applicant was a layman and does not understanding the intricacies of law but the plea was not accepted. But in the present case we find that though there was huge delay the complainant has given the details of the same in elaborate manner. The complainant /respondent has pleaded that he had entrusted the matter as a litigant to the petitioner for filing an appeal and he realized for the first time on 20/09/2011 that no appeal was filed by the petitioner despite accepting fee of Rs. 50,000/-. The complainant thereafter filed MJC No. 48/2011 before the District Judge, Gondia but the same came to the dismissed on 18/01/2013. The complainant thereafter preferred the Writ Petition No. 1347/2013 wherein the Hon’ble High Court, Nagpur Bench asked the complainant to take necessary action against the petitioner.
9. Bare facts and contents of the application shows that the complainant thereafter filed complaint with Lok Aayukta on 16/04/2014 and also lodged the complaint with Bar Council of Maharashtra on 28/02/2014 but no action was taken. From the aforesaid facts it is clear that though the complainant got knowledge about alleged deficiency in service on the part of the petitioner, The complainant was pursuing his remedy and was lodging complaint in various Forums in legitimate manner. It is submitted by Mrs. Nandini Thete, learned advocate on behalf of the respondent /complainant that liberal view will have to be taken in construing provisions of Limitation Act. No doubt it is settled that the limitation under the Consumer Protection Act, 1986 or under the Consumer Protection Act, 2019 has to be construed inthe strict manner. But in the present case before us, we feel that the respondent/complainant has given reasons which can be termed as cogent and satisfactory. Further we also find that the learned District Consumer Commission, Gondia has taken into consideration the fact that the respondent /complainant was not only a litigant but also a Consumer and it was necessary to give opportunity of adjudication to him. As such we feel though there was inordinate delay the respondent has given necessary and satisfactory explanation for the same. During the course of argument Mrs. Nandini Thete, learned advocate for the respondent /complainant has also relied upon one judgment of Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others, passed on 13/12/2017 in First Appeal No. 1415 of 2016 but we feel that the same is not applicable to our facts. Further she has also relied upon one more judgment of Hon’ble National Commission in the case of M/s Vora Home Makers Pvt. Ltd. and others Vs. Ismail Hasan Damudi but same is not applicable to our facts.
10. In the light of the aforesaid discussions we are unable to accept the contentions advanced by Mr. Kshirsagar, learned advocate for the petitioner that the learned District Consumer Commission, Gondia had committed error in passing the impugned order dated 06/11/2019 and so we pass the following order.
ORDER
i. Revision Petition No. RP/19/60 is hereby dismissed.
ii. Copy of order be furnished to both the parties free of cost.
