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2010 Supreme(Online)(KER) 43630
HIGH COURT OF KERALA
ANTONY DOMINIC, J
FAROOK E.K. – Appellant
Versus
SECRETARY, CHOKLI GRAMA PANCHAYTH – Respondent
WP(C)/25926/2010
SRI.P.U.SHAILAJAN, SRI.K.S.MADHUSOODANAN, SRI.T.V.JAYAKUMAR NAMBOODIRI, SRI.THUSHAR NIRMAL SARATHY, SRI.M.M.VINOD KUMAR, SRI.P.K.RAKESH KUMAR, GOVT.PLEADER SRI.DILEEP MOHAN
A party must be granted an opportunity to appeal if no factual error is found in their explanation for delay.
Headnote:
Writ - Consumer Protection - CDRF - Appeal Process - Delay Condonation
Fact of the Case:
The petitioner challenges an order by the CDRF that allowed a complaint against him, claiming he was not informed about the case's disposal, resulting in a 461-day delay in filing his appeal.
Finding of the Court:
The court found that the 3rd respondent did not ascertain the factual correctness of the petitioner's reason for the delay, thus setting aside the order rejecting the prayer for condonation and directing that the appeal be considered on its merits.
Issues: Whether the delay in filing the appeal should be condoned based on the petitioner's claims of lack of information from his counsel.
Ratio Decidendi: In the absence of a factual finding against the petitioner's reason for delay, the court deemed it unjust to reject the condonation request.
Final Decision: The rejection order for delay in filing the appeal is set aside; the appeal must be considered on its merits.
J U D G M E N T
Heard both sides.
2. Petitioner who was the opposite party in C.C.No.
194/2004 on the file of the CDRF, Kannur has filed this writ petition challenging Ext.P1 order passed by the CDRF and also Ext.P3 order in IA NO.88/2010 in Appeal No. 36/2010 passed by the 3rd respondent.
3. According to the petitioner, by Ext.P1, complaint filed by the 1st respondent was allowed against him. It is his case that his counsel did not give him intimation regarding the disposal of the case, as a result of which, he could file the appeal only with a delay of 461 days. It is stated that by Ext.P3 order, the 3rd respondent has rejected his application for condonation of delay stating that the reason assigned is hardly sufficient to condone the delay and that the petitioner also had a duty to ascertain the progress of the case.
4. It is now submitted by both sides that out of the total liability of Rs.2,09,650/- arising under Ext.P1 order of the CDRF, WPC No. 25926/10 :2 :
petitioner has already deposited an amount of Rs.1.25 lakhs and the said deposit is available with the CDRF and the State commission. Thus the petitioner has deposited more than 50% of the amount, which he will have to pay if ultimately Ext.P1 order is sustained.
5. Having regard to the validity of Ext.P3 order rejecting the prayer for condoning the delay is concerned, a reading of this order shows that the 3rd respondent did not enter a finding that the reason stated by the petitioner is factually incorrect. In the absence of such a finding, I am unable to sustain Ext.P3. Therefore, I set aside Ext.P3 and direct the 3rd respondent to treat the delay as condoned and consider Appeal No.36/10 filed by the petitioner against Ext.P1 on merits and with notice to the parties. The appeal shall be disposed of as expeditiously as possible, at any rate within 6 months of production of a copy of this judgment. It will also be open to the petitioner to seek a stay of Ext.P1 by making an appropriate application to the 3rd respondent.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE Rp
