NARIMAN POINT BOMBAY Vs. GANTI NARASIMHAMURTHY

JUDGEMENT

(1.) The respondent was served with notice. Heard the learned Counsel for the petitioners/appellants.

(2.) We find that sufficient cause is not made out for condoning the delay of 79 days in presenting the appeal, FA. SR. No.1392/1998 by the opposite parties in O. P. No.329/1996 questioning the order of the Visakhapatnam District Forum dated 12.1.1998 in that O. P. It is not in dispute that the order was received by the appellants. In the affidavit in support of the application for condoning the delay the reason for the delay is stated as follows : "it is submitted that the above appeal is filed questioning the order dated 12.1.1998 passed in O. P.329/96 on the file of the District Consumer Forum, Visakhapatnam. Since the impugned order was passed without hearing the arguments of the Counsel for the petitioners, the Advocate on record filed I. A.13/98 to set aside the order and to reopen the matter. After IA 13/98 underwent three adjournments, the Advocate on record before the District Consumer Forum by its letter dated 25.4.1998 advised the Corporation to file an appeal before the State Commission by way of abundant caution. The above appeal is filed before the Hon'ble State Commission on 2.5.1998. However. , there was delay of. . . days in filing the above appeal. The delay is neither wilful nor wanton but a bona fide one. " Though the number of days of delay was not stated in the affidavit in support of the petition, it is stated in the petition that there was 79 days delay in presenting the appeal before this Commission on 25.9.1998. This is not a case where the appellants who were the opposite parties in the OP were not served notice in the OP. They were served notice, engaged Counsel and filed version/counter. The District Forum passed an order observing that from the record the opposite parties were always reporting not ready and finally disposed of the matter after hearing the Counsel for the complainant. Under the circumstances filing an application before the Disrict Forum for setting aside its order is inexplicable because it is well settled principle that the Tribunals under the Consumer Protection Act, 1986 have no power to set aside the orders made ex parte or dismissals for default. We may also note that the time taken for such an application cannot be condoned. Even otherwise, in Viraj Overseas Pvt. Ltd. V/s. M/s. Hindustan Motors Ltd. and Ors. , the National Commission held as follows : "after it came to the knowledge of the complainant instead of filing an appeal before this Commission, the complainant chose to move the State Commission with an application for restoration of the complaint petition which had been dismissed for default. The pendency of that application which was ultimately dismissed by the State Commission, will not operate to stop the running of the period of limitation and the appeal. . . was clearly time-barred. No valid explanation has been furnished by the appellant for the delay. "

(3.) In the result we do not find any basis for condoning tthe delay in presenting the appeal. FA. IA. No.1320/1998 for condoning the delay is therefore dismissed and consequently FA. SR. No.1392/1998 is rejected.