MUMBAI GRAHAK PANCHAYAT Vs. MRS RASHMI B FADNAVIS

JUDGEMENT

(1.) FIRST Appeal Nos. 471 to 477 of 1994 were filed here on 22nd July, 1994. Since these appeals were filed against the order dated 8th July, 1994 by which the application for setting aside the ex - parte order dated 8th February, 1994 was dismissed by the learned District Forum, Hissar, the appeals were treated as revisions. The short point by way of preliminary objection is, which we otherwise also on the face of it find, that the basic order by which the complaints have been allowed against the appellant being on 8th February, 1994 these appeals/revisions are obviously barred by time. The application for condonation of delay has been filed, which is duly supported by the affidavit of the appellant/ petitioner in which it has been stated that when the appellant came to know about the passing of the ex -parte order dated 8th February, 1994, immediately the application for setting aside the ex -parte order was filed before the District Forum, Hissar. The exact date of knowledge has been stated to be 5th March, 1994 on which date the copy of the order was received by the appellant, so thereafter the application was filed on 7th March, 1994, which has been disposed of being not maintainable on 8th July, 1994. The principal ground for sufficient cause for not filing the appeal within limitation is that the time taken by the appellant before the District Forum in pursuing the subsequent application for setting aside the ex -parte order should be taken as the time, which has to be taken note of in reckoning the period of limitation; meaning thereby the period during which the application for setting aside the ex -parte order remained pending right from 7th March, 1994 to 8th July, 1994 should be excluded. Taking that into consideration, according to the learned Counsel for the appellant, the appeals filed on 22nd July, 1994 are within limitation more so when the orders were not in accordance with law, as they had been passed without actually serving the appellant. In support of that, reliance has been placed by the learned Counsel on the well -known case of Usha Rectifier Corporation (I) Ltd. v. R. Krishnaswamy reported as I (1995) CPJ 121 (NC), in which Hon'ble National Commission has been pleased to hold that if an order was illegal or void, then period of limitation will not stand in the way of setting aside that order. On the other hand, Mr. V.S. Juneja, learned Counsel appearing on behalf of the respondents has vehemently opposed the application for condonation of delay, by placing reliance on the decision of the Hon'ble National Commission reported as II (1992) CPJ 360 (NC), Viraj Overseas Pvt. Ltd. v. M/s. Hindustan Motors Ltd. & Others, and II (1992) CPJ 937, The Prop. M/s. Super Dry Cleaners v. Kapil Devi Bhakhri. The principal contention of the learned Counsel for opposing the application is that firstly it was a proper service of the notice which had been duly served under the law on the opposite party, i.e. the present petitioner, when the complaints were filed before the District Forum and the application for setting aside the ex -parte order has rightly been dismissed. Secondly, it has been contended that if at all it is taken that 5th March, 1994 was the date on which it came to the notice of the appellant that the complaints had been decided against him, he should have filed the appeals within 30 days before the State Commission instead of approaching the District Forum for setting aside the ex -parte order.

(2.) AFTER hearing the learned Counsel for the parties we arc of the considered view that it is a fit case in which the appeals should be decided on merits by condoning the delay. On the facts and circumstances of the case and by taking into consideration the fact that within 30 days of the date of notice of the passing of the order, i.e. 5th March, 1994, when the copy of the order was received by the appellant, the application for setting aside the ex -parte order was filed within 2 days, i.e. on 7th March, 1994. The appellant had of course two options - one by filing of appeal before the State Commission within 30 day sand second by approaching die District Forum for setting aside the ex -parte order. Of course, the District Forum did not have the jurisdiction to restore a complaint, which had been dismissed in default, but the appellant rightly took a chance for setting aside the ex -parte order on the plea that he was not duly served. In any case, seeing the facts and circumstances of the case, we condone the delay and allow the application and proceed to decide the appeals on merits.

(3.) ACCORDING to the appellant K.K. Sharma as the proceedings against him were conducted ex -parte, which ultimately ended in the acceptance of complaints on 8.2.1994, he has filed the present appeals/revisions in which it has been vehemently contended that had the appellant been permitted to file his written statement he would have proved that the complainants had no case whatsoever before the learned District Forum. in nutshell the submission is that once the Vakalatnama had been signed by him in favour of his Advocate, all subsequent applications could be signed and verified and presented by his Counsel. It is further contended that the dispute between the parties was a commercial transaction and therefore, was not covered under the Consumer Protection Act, In any case, the learned District Forum, Hissar, had no territorial jurisdiction to entertain the complaints.