IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 596 of 2004(U) ----------------------------------- PETITIONER: ------------------- MANAGING PARTNER, SRI.SRINIVASA AGENCIES, OPP. CITY CO-OPERATIVE BANK, 219, ANUPPAR PALAYAM, COIMBATORE 641 009 BY ADV. SRI.THOMAS ANTONY SRI.M.P.PRAKASH RESPONDENTS: ----------------------- 1. K.P.ALI HAJI, KUTTIPALLIYALIL HOUSE, VALLUVAMBRAM P.O., MALAPPURAM 673 651 2. CONSUMER DISPUTES REDRESSAL FORUM, MALAPPURAM. 3. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. BY ADV. SRI.K.SHIBILI NAHA - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.596/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE COMPLAINT DT. 26.7.2000 WITH A COPY OF THE ORDER FORM DT. 7.6.2000. EXT.P2:- COPY OF THE VERSION OF THE PETITION FILED BEFORE THE 2ND RESPONDENT. EXT.P3:- COPY OF THE VERSION OF THE 2ND OPPOSITE PARTY IN EXT.P1 COMPLAINT. EXT.P4:- COPY OF THE ORDER DT. 8.1.2001 IN OP. NO.236/2000 OF THE 2ND RESPONDENT. EXT.P5:- COPY OF THE MEMORANDUM OF APPEAL WITH A PETITION TO CONDONE THE DELAY AND A PETITION FOR STAY SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P6:- COPY OF THE ORDER DT. 15.12.2003 IN IA. 346/2002 . EXT.P7:- COPY OF THE ORDER DT. 15.12.2003 IN APPEAL NO.255/2002. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J = = = = = = = = = = = = = = = = W.P.(C).No. 596 OF 2004 = = = = = = = = = = = = = Dated this the 6th day of June, 2008. J U D G M E N T Petitioner is the opposite party in O.P.No.236/2000, before the Consumer Dispute Redressal Forum, Malappuram. In that OP, the petitioner suffered an adverse order, Ext.P4. Against that order, the petitioner filed Ext.P5 appeal along with Ext.P8 application to condone the delay of 304 days in filing the appeal, which was dismissed by Ext.P7 order. Petitioner challenges Ext.P4 order on the ground that the 1st respondent herein is not a consumer as defined under the Consumer Protection Act and also that the Consumer Dispute Redressal forum does not have jurisdiction to entertain the O.P. and has not complied with the mandatory provisions of the Act and Rules, while passing Ext.P4 order. Petitioner challenges Ext.P7 order on the following ground. “H. Ext.P6 order dismissing I.A.No.346/02 is clearly improper. The above I.A was posted on 30.10.2003 and the 1st respondent/complainant was declared ex-parte. The 3rd respondent ought to have taken up the above I.A. on 30.10.2003 for hearing as the 2nd respondent in Ext.P5 appeal was only a formal and supporting party and ought not to have posted the case to 18.11.2003. The 2nd W.P.(C).No. 596 OF 2004 2 respondent in Ext.P5 appeal, the manufacturer of the good involved in the case had sought to dismiss the complaint in its written version submitted before the 2nd respondent. Therefore the 2nd respondent in Ext.P5 appeal is not at all affected by allowing the petition for condonation of delay. Therefore , the 3rd respondent ought to have allowed the petition of condonation of delay on 30.10.2003, Ext.P6 order is vitiated by procedural impropriety. Hence, Ext.P6 order dtd. 15.12.2003 is erroneous and is liable to be set aside by this Hon'ble court. Similarly, the consequential order, Ext.P7 is also liable to be set aside. The petitioner had urged valid, tenable grounds in Ext.P5 appeal and same ought not to have dismissed by Ext.P7 order”. Petitioner therefore seeks the following reliefs: i) Call for the records leading to Ext.P4 order dated 8.1.2001 in O.P.No.236/2000 of the 2nd respondent and Exts.P6 and P7 orders dated 15.12.2003 in I.A.No. 346/2002 and appeal No.255/2002 of the 3rd respondent and to set aside the same. ii) Declare that the 1st respondent/complainant is not a 'consumer' as defined under Section 2(1)(d) of the Act and also to declare that the 2nd respondent has no territorial jurisdiction to try Ext.P1 complaint and to dismiss the complaint by issuance of an appropriate writ, direction or order. 2. After considering the contentions of the petitioner, I am not inclined to exercise by discretionary jurisdiction in favour of the petitioner since he has not explained the long delay of more than 304 days sufficiently. The delay has been explained thus in the affidavit in Ext.P5. W.P.(C).No. 596 OF 2004 3 “3. It is further submitted that the impugned order is as passed on 8.1.2001 and the same has been communicated. However, the clerk, Sri.Ramakrishnan, who was dealing with the case did not inform about the same to me and he left the service on 10.2.2001. Thereafter, when notice in E.P.No.13/2001 was received on 2.4.2001 efforts were made to trace out the copy of the order communicated, but in vain. The above appeal ought to have been filed on or before 3.6.2001, i.e., 30 days from the date of knowledge of the order. I could not contact my lawyer at Malappuram as I was laid up due to heart diseases. Thereafter, I made arrangements to with the lawyer at Malappuram to get a certified copy of the impugned order. However, due to the State Government Employees' strike, my lawyer could not make an application before 15.3.2002. An application for the certified copy of the impugned order was made on 15.3.2002 and the same was delivered on 19.3.2002. Therefore, there is a delay of 304 days in preferring the above appeal. It is admitted that the above delay in preferring the above appeal is neither intentional nor wanton but only on account of the facts stated above. Unless the above delay of 304 days in preferring the above appeal is condoned I will be put to irreparable injury and loss”. It is clear from the above averments that Ext.P4 order, passed on 8.1.2001 was received by the petitioner soon after passing of the order. But the contention is that his clerk was dealing with the case do not inform him about the same and he left the service on 10.2.2001. Even assuming that the same is correct, admittedly, the petitioner received notice in the execution petition No. 13/2001, on 2.4.2001. Of course, he offers some explanation for W.P.(C).No. 596 OF 2004 4 the period from 15.3.2001 onwards. But there is no plausible explanation for the long delay for the period of almost one year between 2.4.2001 and 3.4.2002. Although, it is settled law that simply on the ground of delay, a meritorious claim should not be rejected at the threshold as held by the Supreme Court in various decisions, the petitioner should offer some plausible explanation especially when the delay is unduly long. In this case, the petitioner has not given any plausible explanation for the delay of 304 days. Therefore I am of opinion that notwithstanding the contention raised in ground of 'H' against Ext.P7 order, even after independently considering the petition for condoning the delay, I do not find any ground to allow the same. It is settled law that jurisdiction under Article 226 cannot be invoked for resurrecting a time barred claim when the appeal itself had not been filed in time. In the above circumstances, I am not inclined to entertain this writ petition and accordingly the same is dismissed. S.SIRI JAGAN, JUDGE bkn/-