STATE CONSUMER DISPUTES REDRESSAL COMMISSION,           

                                   UTTAR PRADESH, LUCKNOW

                                      APPEAL NO. 541 OF 2016

             (Against the judgment/order dated 21-08-2015 in Complaint

           Case No.623/2011 of the District Consumer Forum-I, Lucknow )

Meenu Sharma

                   ...Appellant/Complainant

                                                             Vs.

Ansal Properties & Infrastructure Ltd.

                                                                           ...Respondent/Opposite Party

BEFORE:

HON'BLE MR. C B SRIVASTAVA, PRESIDING MEMBER

HON’BLE MR. JUGUL KISHORE, MEMBER

For the Appellant        :      Sri Vikas Agarwal, Advocate.

For the Respondent     :                      -                           

Dated : 21-03-2016

                                                  JUDGMENT

          MR. C B SRIVASTAVA, PRESIDING MEMBER (ORAL)

            We have heard Sri Vikas Agarwal, learned Counsel for the appellant at the time of admission of this appeal and perused the entire record.

            This appeal has been filed by the appellant/complainant against the impugned order dated 21-08-2015 passed by the District Consumer Forum-I, Lucknow in Complaint Case No. 623/2011 by which the District Consumer Forum has dismissed the complaint in default of the complainant.

            It is argued by the learned Counsel for the appellant that the complainant filed the complaint case for defective as well as unfair trade practice and after being satisfied with the arguments of the complainant the District Forum passed an interim order dated 13-07-2011 and restrained the respondent not to cancel the allotment of the flat of the complainant. It is further submitted that during the pendency of the complaint case the respondent proposed a compromise that if the complainant withdraw their case then the builder wave of the interest portion and the complainant believing upon the version of the respondent filed an application for withdrawal of the complaint case in terms of compromise. Learned Counsel further pleaded that after filing the withdrawal application the complainant was very much optimistic that the District Forum will pass the orders in the light of their application but the District Consumer Forum dismissed the complaint case in default of the complainant without considering the

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application of the complainant and as such the impugned orders are liable to be quashed.  It is further argued that when the complainant served the order of the District Consumer Forum the respondent in utter disregards of their commitments deviated from their commitments and denied for any compromise as such the impugned orders are liable to be dismissed. Learned Counsel further submitted that the written statement of the opposite party was on record and the District Consumer Forum should have decided the complaint on merit instead of dismissing the complaint in default. 

            After hearing of the learned Counsel for the appellant and perusing the record, we are of the view that once the complaint is filed, it is advisable that the District Consumer Forum has to ensure the appearance of the parties and if all the opposite parties appeared and given time to file the written statement/counter affidavit or if the written statement of the opposite party is on record, the complaint should not be dismissed in default of the complainant since each and every complaint is generally filed by the complainant supported by the affidavit of the complainant.

            Though there is a provision in the Consumer Protection Act provided as per Section 13(2)(c) that where the complainant fails to appear on the date of hearing before the District Consumer Forum, the District Consumer Forum may either dismiss the complaint for default or decide it on merit but looking into this provision that the District Consumer forum have a right to dismiss the complaint for default or decide it on merit, we are of this view that this discretion of the District Consumer Forum should be used to decide the complaint on merit.

Hon’ble Supreme Court has held in the case of RAFIQ AND ANOTHER Versus MUNSHILAL AND ANOTHER (1981) 2 SCC 788 in respect to Practice and Procedure that contesting parties should not suffer for lapses on the part of their counsel. Ex parte order of dismissal of appeal was passed by High Court on non-appearance of appellant's counsel on the date of hearing in that case. Application made by counsel for recalling the order and for permission to participate in the hearing of the appeal was rejected on ground of unexplained delay in presenting the application to the court. Rejection of the application was not found justified as the party should not

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suffer for the inaction, deliberate omission, or misdemeanour of his agent, the lawyer.  Costs was also ordered to be recovered from the counsel who absented in that case. The Apex Court Observed :

“ The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A K Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing  this  matter  which  may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A K Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for

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ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A K Sanghi.”

Here in this case the complaint is dismissed in default of the complainant and since the complainant could not appear before the District Consumer Forum on 21-08-2015 and the written statement of the opposite party is on record, the District Consumer Forum should have decided the complaint on merit instead of dismissing it in default of the complainant. In such circumstances we are of this view that the impugned order is liable to be set aside and the District Consumer Forum concerned is to be directed to restore the complaint on its original number and after affording an opportunity of hearing to both the parties, the complaint should be decided on merit.

                                           ORDER

The appeal is hereby allowed accordingly. The impugned order is hereby set aside. The concerned District Consumer Forum is directed to restore the complaint on its original number and decide the same on merit after affording an opportunity for hearing to both the parties within two months.

            ( C B SRIVASTAVA)                            (JUGUL KISHORE )

           PRESIDING MEMBER                               MEMBER

Pnt.