ORDER

Appeared at the time of arguments

For Appellant                            : Mr. Harish Dasan, Advocate

For Respondents-1 & 2              : Mr. Jayanta Das Gupta, Advocate

                                                  Mr. Ritesh Kumar Maity, Advocate

For remaining Respondents       : NEMO                 

Pronounced on:  27^th February 2023 

ORDER

1.       This is the case of alleged medical negligence against the Respondent / Opposite Party, Peerless Hospitex Hospital & Research Centre Ltd. The State Commission, West Bengal, dismissed the complaint for non-prosecution. The impugned Order is reproduced as below:

“None appears for the Complainant. Ld. Advocates for OP Nos. 1 & 2, OP Nos. 3 & 4 and OP No. 6 are present. No reply to show-cause as per order dated 8.1.2018 is filed. The Complaint is dismissed for non-prosecution. The Interlocutory Applications bearing No. 49/2018 and 200/2017 are also disposed of.”

2.       Being aggrieved, the Complainant filed the instant First Appeal along with IA/22420/2018, an application for condonation of delay of 302 days in filing this First Appeal. According to the Registry, there is a delay of 269 days.

3.       I have heard the learned Counsel for both sides, perused the application for condonation of delay in filing the instant appeal.

4.       The learned Counsel for the Appellant stated that after passing the impugned Order, he being the only earning member of his family, unable to bear cost of Advocate in Delhi, thus he waited for the Circuit Bench of NCDRC at Kolkata; thus it caused delay.

5.        The learned Counsel for OPs stated that the Complainant did not appear and was absent in the dates whereas the respondent attended the case through their advocate all the way to Calcutta. The learned Counsel for the OPs further submitted that the Complainant is in service, neither retired nor unemployed. He is working in Steel Authority of India, the Public Sector Undertaking, therefore, it was false that due to financial reasons, the Appeal was not filed within time.

6.       I would like to rely upon the judgements of Hon’ble Supreme Court, discussed and defined the expression ‘sufficient cause’. It was also held that the burden is on the applicant to show that there was sufficient cause for the delay. The party who has not acted diligently or remain inactive is not entitled for condonation of delay.  In the case of R. B. Ramlingam vs. R. B. Bhavaneshwari[1], it was held as under:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

7.       Condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation.   The Hon’ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited[2], has held as under:

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be