REGIONAL PASSPORT OFFICER Vs. SANTOSH CHAUHAN

JUDGEMENT

(1.) THIS appeal is directed against the order dated 5.11.2001 passed by District Forum, Gurgaon, whereby while accepting the complaint of the respondents -complainants direction has been given to the appellant -opposite party that the amount of the fee deposited by the complainants be refunded to them along with interest @ 9% per annum from the date of deposit till payment.

(2.) AS there was a delay of one year 9 days in filing the appeal, an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as the Act, 1963) was filed wherein it has been stated that the order dated 5.11.2001 of the District Forum, Gurgaon was not received by the office of the appellant and it came to know about the said order on receipt of summons in a petition filed under Section 27 of the Consumer Protection Act, 1986 . It is further pleaded that soon thereafter an application dated 21.10.2002 and another application dated 4.12.2002 were moved to the District Forum, Gurgaon seeking supply of copy of the impugned order. The certified copy of the order was supplied to the appellant on 5.12.2001 and thereafter time was taken to remove the objections raised by the Registry and in this manner the delay resulted in filing the appeal for the above stated period which deserves to be condoned in the interest of justice. Supporting the averments an affidavit of Sg. R.N. Sarkar, Assistant Passport Officer (Policy), Regional Passport Office, HUDCO -Tricoot -3, Bhikajicama Place, R.K. Puram, New Delhi was filed. This application has been opposed from the side of the respondent. In the reply filed by the respondent -complainants it has been averred that certified copy No. 897 dated 5.11.2001 was despatched by the District Forum, Gurgaon vide despatch No. 36 dated (sic.) and it was also duty of the appellant to have obtained the certified copy of the order if they wanted to file an appeal. It was further stated that they have waited for execution of the order for a period of 9 months and summons of the Executing Court were sent to the appellant on 3.9.2002 which was received on 6.9.2002 and thereafter an application for obtaining certified copy of the order dated 5.11.2001 was moved on 21.10.2002 which further shows a lapse of the period of 5 months and 7 days on the part of the appellant in obtaining the copy for which no explanation has been rendered. Accordingly, it was prayed that the prayer made for condonation of delay deserves to be rejected and affidavit of Mrs. Santosh Chauhan has also been filed along with the written reply sent by post.

(3.) THE learned Counsel representing the appellant at the time of arguments has pressed the ground stated in the application seeking condonation of delay noticed above. None has chosen to appear on behalf of the respondents -complainants and the stand taken by them in the written reply received has been taken into consideration. It cannot be disputed that there has been a total delay of 397 days in filing the appeal. It is the case of the appellant that copy of the impugned order dated 5.11.2001 was not received by the appellant and it came to notice about the impugned order after intimation about filing of the execution application under Section 27 of the Consumer Protection Act, 1986 was received by the appellant. Thereafter time was taken, as noticed above, in obtaining the certified copy of the order and the present appeal was initially filed on 6.1.2003 in which the Registry raised objection and thereafter it was re -filed on 13.2.2003. We have given serious consideration to the above noted circumstances which clearly spelled out that the explanation put forward appears to be not convincing but in this case keeping in view the facts and circumstances and cause of justice, the delay has to be condoned in order to avoid illegality committed by the District Forum remaining perpetuated on record. Even otherwise, suo motu power is vested in this Commission under Section 17(1)(b) of the Consumer Protection Act, 1986 to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. Therefore, the delay in filing the appeal is condoned.