Judgment:
K.S. Chaudhari, Presiding Member
This revision petition has been filed by the petitioners against the order dated 06.05.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, the State Commission) in Appeal No. 625/2011 “ M/s. Young India Engineers Vs. Badri by which, while dismissing application for condonation of delay, appeal was dismissed.
2. Brief facts of the case are that complainant/respondent filed complaint before District Forum. OP/petitioner did not appear before District Forum and learned District Forum vide order dated 30.6.2010 allowed complaint and directed OPs to handover possession of the flat or pay Rs.5,90,000/- with 18% p.a. interest and further awarded Rs.25,000/- as compensation and Rs.2,000/- as cost. OP filed appeal along with application for condonation of delay of 475 days and learned State Commission vide impugned order dismissed application for condonation of delay and consequently, appeal was dismissed.
3. Learned Counsel for the petitioner submitted that learned District Forum proceeded ex-parte against the petitioner without service on the petitioners and further submitted that inspite of reasonable explanation for condonation of delay, learned State Commission committed error in dismissing application for condonation of delay; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by leaned State Commission is in accordance with law; hence, revision petition be dismissed.
4. The core question to be decided in this matter is whether reasonable explanation has been offered by the petitioner for condonation of delay of 475 days. Petitioner filed application for condonation of delay before State Commission and submitted that notices were not served on them and petitioner came to know about the order first time in September, 2011, when notice of Execution Petitions were served on them. It was further submitted that on 4.11.2011, Counsel for the petitioner could not appear in Execution proceedings, co-incidentally, another Execution Petition No. 90/2011 was also fixed on the same date and President of the District forum pointed out to their Advocate to seek instructions to appear in other revision petitions. Then, the petitioner applied for certified copy on 8.11.2011 and same was received on 18.11.2011 and appeal along with application for condonation of delay was filed on 8.12.2011 and prayed for condonation of delay of 475 days. Perusal of record apparently reveals that OPs were not served with the notices issued by District Forum, though; we need not to decide this issue at this stage because this issue is to be decided by State Commission in the appeal if application for condonation of delay is allowed.
5. Admittedly, ex-parte order was passed by District Forum and there is no iota of evidence on record to prove that copy of ex-parte order was served on OP. As per submission of OP, they came to know about orders only in September, 2011 when they were served notice of Execution Petition and later on, they applied for certified copy and filed appeal on 8.12.2011. No doubt, when petitioner came to know about the order in September, 2011, they should have applied for certified copy of the order immediately, but they applied on 8.11.2011 and obtained copy on 18.11.2011 and then filed appeal on 8.12.2011. In this way, apparently, there was delay of about 30-40 days in filing appeal, but there was not delay of 475 days from the date of knowledge and in such circumstances, learned State Commission ought to have condoned delay, as it was ex-parte order against the petitioner. Learned Counsel for the respondent could not place on record any document proving knowledge of petitioner about the District Forum order earlier than September, 2011 and in such circumstances, observation of learned State Commission that they were aware about the pendency of the complaint and had intimation about the complaint is not correct and impugned order is liable to set aside.
6. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 6.5.2013 passed by learned State Commission in Appeal No. 625 of 2011 “ M/s. Young India Engineers Vs.l Badri is set aside and Application No. 367 of 2011filed before the State Commission for condonation of delay is allowed and delay stands condoned, subject to payment of cost of Rs.5,000/- to the respondent on or before the date the matter is taken up by the State Commission. The matter is remanded back to the learned State Commission to decide the appeal on merits after giving an opportunity of being heard to both the parties.
7. Parties are directed to appear before the State Commission on 9.7.2014.