Present: Complainant in person with counsel. Heard on admission. Complainant appears to be a consumer, the matter involved appears to be a consumer dispute and the complaint is prima-facie within limitation and falls within territorial jurisdiction of this Forum. So complaint is admitted. Notice of the complaint be issued to the OP/OPs alongwith copies of the complaint and documents for 31/12/2019. Thereafter, the case was fixed on various dates and relevant orders are reproduced as under: Dated : 31 Dec 2019 ORDER Present: Counsel for complainant. Sh. Devesh Kakkar, Advocate filed power of attorney on behalf of OPs. Quorum is incomplete today. Now file be put up on 17/1/2020 for further proceedings. Dated : 17 Jan 2020 ORDER First Appeal No.123 of 2021 Present: Counsel for complainant. Counsel for OP/s Written reply not filed. Be filed on 24/1/2020. Dated : 24 Jan 2020 ORDER Present: Counsel for complainant. Counsel for OP/s Counsel for complainant moved an application for dismissing the complaint on the ground of limitation. To come up on 3/2/2020 for filing reply to the application. Dated : 03 Feb 2020 ORDER Present: Counsel for complainant. Counsel for OP/s Reply to the application dated 24/1/2020 filed by complainant through counsel. Written reply with an affidavit filed by OP/s through counsel. Quorum is incomplete today. Now file be put up on 12/2/2020 for further proceedings. Dated : 12 Feb 2020 ORDER Present: Counsel for complainant. Counsel for opposite parties. Quorum is incomplete today. Now file be put up on 14/2/2020 for further proceedings. Dated : 14 Feb 2020 ORDER Present: Counsel for complainant. Counsel for OP/s On request, to come up on 27/2/2020 for consideration on the application dated 24/1/2020. Dated : 27 Feb 2020 ORDER Present: Counsel for complainant. First Appeal No.123 of 2021 Counsel for OP/s On request, to come up on 12/3/2020 for consideration on the application dated 24/1/2020. Counsel for complainant moved an application for directing the OPs to place on record the circular no. 555,568, 570 from PCDA. Reply be filed on 12/3/2020. Counsel for OP moved one another application for amendement of written reply along with amended written reply. To come up on 12/3/2020 for filing reply. Dated 12/3/2020 ORDER Present: Counsel for complainant. Counsel for OP/s The perusal of file reveals that on dated 27/2/2019, counsel for complainant moved the application for directing the OPs to place on record the circular from PCDA (Pension). Today counsel for OP not file the reply of the above said application and also filed circular which demanded by counsel for complainant on dated 27/2/2020. As such, the application dated 27/2/2020 for directing the OPs to place on record the circular from PCDA (Pension), is disposed off, accordingly. Now file be put up on 26/3/2020 for filing reply to the application dated 27/2/2020 for amendment of written reply, by complainant and also for consideration on the application dated 24/1/2020 for dismissing the complaint on the ground of limitation. Thereafter, the case was adjourned from time to time, mainly due to pandemic of COVID-19 and sometimes due to lack of quorum.

14. On perusal of above said zimni orders, it is apparent that at the time of admission of the complaint, it was specifically observed by the District Commission, vide order dated 21.11.2019, that the complainant appears to be a consumer and the complaint is prima facie within the period of limitation and falls within territorial jurisdiction of the Forum. Notice of complaint was issued to the opposite parties First Appeal No.123 of 2021 for 31.12.2019. Thereafter, the opposite parties appeared through counsel and they filed an application for dismissal of the complaint on the ground of limitation. Reply to that application was also filed by the complainant. Ultimately, vide impugned order dated 08.02.2021, the complaint was dismissed being not maintainable and barred by time. In the impugned order, there is no reference of above said zimni order dated 21.11.2019 passed by the District Commission, wherein the complaint was held to be within the period of limitation. The complainant was not given any opportunity to file even the application for condonation of delay. In case, the District Commission was of the view that the complaint was not within the period of limitation, opportunity should have been given to the complainant to file application under Section 5 of the Limitation Act, but no such opportunity was given. Simply, being satisfied by the filing of application for dismissal of the complaint on the ground of limitation, the impugned order was passed. However, no satisfaction was recorded in the impugned order to see as to when the cause of action had accrued to the complainant to file the complaint. Not only the representation was made but certain formalities were also completed by the complainant. Still the sought relief was not paid. Ultimately, a legal notice was also served upon the opposite parties and when nothing was done, the complainant was not having any option, except to file the complaint before the District Commission. It has been held in number of judgments of Honble Supreme Court of India that if the case is good on merits, the Courts should be liberal in condoning the First Appeal No.123 of 2021 delay. Neither any such finding has been recorded nor the complainant had been given opportunity to explain the reasons for not filing the complaint within the period of limitation.

15. From the facts and circumstances as mentioned above, the issue for determination by this Commission is as to whether the District Commission was justified in dismissing the complaint on the ground of delay without going through the merits of the case and without construing the provisions of Section 5 of the Limitation Act in its proper prospective?

16. As already discussed above, at the initial stage of admission of the complaint, the District Commission passed the order dated 21.11.2019, observing in so many words that the complaint was prima facie within the period of limitation and was filed within the territorial jurisdiction of the District Commission, Ferozepur. By making those observations, the notice was issued to the opposite parties. Thereafter, an application for dismissal of the complaint, on the ground of limitation, was moved by the opposite parties. Reply to that application was filed by the complainant. The District Commission, without taking into consideration the zimni order dated 21.11.2019 stating the complaint to have been filed within the period of limitation, dismissed the complaint being not maintainable on the ground of delay, vide the impugned order. There was no reference of zimni order dated 21.11.2019 passed by the District Commission, wherein the complaint was stated to be filed within the period of limitation. Even the complainant was not asked to file application for condonation of delay. First Appeal No.123 of 2021 An opportunity should have been given to the complainant to file application under Section 5 of the Limitation Act. However, no opportunity was given to the complainant to argue on the issue of limitation and simply by relying upon the contents of the application moved by the opposite parties, the complaint was dismissed on the ground of delay.

17. It is well settled principle of law that in case there is merit in the main case, the case should not be dismissed at the threshold on the ground of limitation. This view was held by the Honble Supreme Court of India in case titled as Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others AIR 1987 SC 1353. It was held in the said case that the applicants were having good case on merits and it was found to be a sufficient reason for the purpose of condonation of delay. In Para-3 of the above said judgment, the Honble Supreme Court held as under:

3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very First Appeal No.123 of 2021 threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal........

18. In another case reported as Bhivchandra Shankar More

v. Balu Gangaram More AIR 2019 Supreme Court 1915, the Honble Supreme Court held in Para Nos.12 & 15 as under:

12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:- "36. ............... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be First Appeal No.123 of 2021 fixed thereupon unless the statute expressly or by necessary implication says so. [See (2004) 5 SCC 385, Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Boaroda and Chandravathi P.K. and Others v. C.K. Saji and Others (2004) 3 SCC 734]." "38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Chaudhari that the "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhury . (1982) 2 SCC 596, P. Kiran Kumar v. A.S. Khadar and Others (2002) 5 SCC 161 and Shyam Sundar Sarma v. Pannalal Jaiswal and Others (2005) 1 SCC 436."

15. It is a fairly well settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:- "6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay." First Appeal No.123 of 2021

19. It is also well settled law that sufficient cause is required to be given liberal interpretation for advancement of justice in case there was no intention in delaying the matter or negligence on the part of the party. However, no hard and fast rule can be laid down for deciding the applications for condonation of delay. Over the years together, the Courts have repeatedly observed that liberal approach is required to be adopted in such like matters, so that the substantive rights of the parties are not defeated by dismissing the case only on the ground of delay.

20. Observing that the rules of limitation are not meant to destroy the rights of the parties, in case N. Balakrishnan v. M. Krishnamurthy . (1998) 7 SCC 123, the Honble Supreme Court held as under: "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring First Appeal No.123 of 2021 appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay.

21. In one more judgment of case Ummer v. Pottengal Subida & Ors. AIR 2018 SC 2025, the Honble Supreme Court has held as follows:

18. Once cannot now dispute the legal proposition that the earlier view of this Court that the appellate was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decision of this Court and is, therefore, held as no longer good law.

22. By considering the ratio of said judgments and also the provisions of Section 5 of the Limitation Act, the Court has to keep in mind that the discretion as provided in the said Section has to be exercised to advance substantial justice. The Court is having discretion to condone or to refuse to condone the delay, as is clear from the words may be admitted used in the Section. While dealing with the scope of Section 5 of the Limitation Act, the Honble Supreme Court in case Ramlal & Ors. v. Rewa Coalfields Ltd. AIR 1962 SC

361 held as under: Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in First Appeal No.123 of 2021 substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal & the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant. First Appeal No.123 of 2021

23. Further, the Honble Supreme Court in Appeal (Civil) 4779 of 2001 (M.K Prasad v. P. Arumugam .) decided on 30.07.2001, held as under: Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors. 1972 (1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore 1988 (2) SCC 142 this Court observed the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy . [1998 (7) SCC 123] this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed: It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."

24. On perusal of ratio of said judgments, it is apparent that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised First Appeal No.123 of 2021 only if the delay is within a certain limit. The number of days of causing delay is not material but the explanation given by the party is relevant; as in some of the cases even the short delay in filing the cases is not condoned due to want of acceptable explanation, whereas in some other cases a long delay can be condoned where delay has been satisfactorily explained. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the Courts exercise their discretion by recording findings. In some other cases, the first Court refuses to condone the delay but subsequently the superior Court condones the delay by recording reasons and findings, which have not been given by the first Court.

25. In some of the cases, the parties appear not to be vigilant, as they should have been and in such a situation, the delay is not condoned. No doubt, the inconvenience is caused to the opposite party on account of delay but keeping in view the interest of justice and by considering the peculiar circumstances of the case and especially in cases of setting aside ex parte orders, the delay is to be condoned.

26. In certain cases, where recurring cause of action is there, like proper pay fixation and cases of promotion or grant of increment, the delay is to be condoned. Under the similar circumstances, where there was continuous cause of action, Honble Delhi State Commission dismissed the complaint, on the ground of limitation by passing the following order:

6. I have gone through the material on record and heard the counsel for parties on the question of limitation. The First Appeal No.123 of 2021 counsel for OP has relied upon decision of National Commission in Writ Petition No.2618/02 titled as C.H. Vittal Reddy Vs. the Manager, District Coop. Central Bank Ltd. and Ors. decided on 04.12.2002. Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.

7. The application for condonation of delay is dismissed. With this complaint also stands dismissed as barred by limitation

27. The aggrieved party filed appeal before the Honble National Commission to challenge the order passed by the State Commission and by considering the case of continuous cause of action, the delay was condoned and the order passed by the State Commission was set aside and the matter was remitted back to the State Commission for deciding the complaint on merits after giving fresh opportunity to both the parties to lead evidence in their favour. First Appeal No.123 of 2021

28. From the facts and ratio of judgments, as discussed above, we are of the considered opinion that in the present case, in-spite of positive observations made by the District Commission in the zimni order dated 21.11.2019 regarding the complaint being prima facie within the period of limitation, later on the complaint was dismissed vide impugned order on the ground of delay only on the basis of the application moved by the opposite parties, without going through the merits of the case. Even no satisfaction was recorded in the impugned order, whereas the explanation should have been asked from the complainant. In case there was any delay and opportunity could have been given to the complainant to move appropriate application. Thereafter, by considering the stand of both the parties, appropriate order should have been passed. However, nothing like this has been done and not even a single finding has been recorded with regard to the merits of the case.

29. Keeping in view the above observations and the ratio of the law laid down in the judgments as cited above as well as in view of the order dated 21.11.2019 passed by the District Commission, it is held that the complaint was filed within the period of limitation being a continuing and recurring cause of action.

30. Accordingly, the appeal is allowed and the impugned order dated 08.02.2021 passed by the District Commission is set aside. The case is remanded back to the District Commission for deciding the complaint on merits after giving due opportunity to First Appeal No.123 of 2021 both the parties to lead evidence and raise arguments in support of their respective contentions.

31. The parties through counsel are directed to appear before the District Commission on 06.01.2022. (JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER November 30, 2021. (Gurmeet S)