IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 304/09 DATED 23.12.2009<br /> ORDER<br /> <br /> Complainant Sahana Arya (Independent Reporter and Social worker), Halepete Kantapura, <br /> eriyapatna-571107, <br /> Mysore District<br /> <br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Party Irfan, Advocate,<br /> Above the Sub-Registrar Office, B.M.Road, Peiryapatna-571107.<br /> Mysore District.<br /> <br /> (By Sri. M.U.Subbaiah, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 19.08.2009<br /> Date of appearance of O.P. : 18.11.2009<br /> Date of order : 23.12.2009<br /> Duration of Proceeding : 1 MONTHS 5 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Alleging deficiency in service on the part of the opposite party- advocate, complainant has filed the complaint, seeking compensation of Rs.2,00,000/-.<br /> <br /> 2. In the complaint it is alleged that, the complainant had engaged the opposite party, who is an advocate to defend her in CC 296/08 before JMFC, Periyapatna and so also security proceedings under section 107 of Cr.P.C. Nos. 49 and 64/08 before the Executive Magistrate, Periyapatna. The complainant had paid Rs.25,000/- to defend security proceedings and Rs.8,000/- the criminal case before the JMFC and so also Rs.300/- on 13 hearing dates. The deficiency alleged are that, the opposite party did not receive the document to substantiate the defence, forced to compromise, remained absent unnecessarily from attending the Court, despite payment of sufficient fees demanded more and more, forced to receive money in quarry matter and asked the complainant to consent for prepare tele-film. For these reasons, the complainant had informed the opposite party that she will engaged some other lawyer. The opposite party did not tell anything to the complainant. On 22.04.2009, the case was for hearing. The opposite party demanded Rs.50,000/- fees. For that, opposite party even sent SMS. On 16.06.2009 through somebody, copy of FIR and Vakalath with no objection were sent and so also at 9.23 am SMS was sent to the complainant, stating that since the complainant has no faith in the opposite party, the opposite party also does not intend to proceed with the matter. Also, opposite party informed through SMS that, the case was posted for hearing before the Court and hence, the complainant has to appear before the Court or else warrant will be issued and that the opposite party is ready to retire and complainant may appoint advocate of her choice. Thereafter, the complainant approached 4 – 5 advocates over phone, but they refused to take part heard cases. Then, complainant approached the Court to provide free legal aid. Hence, it is alleged that, on account of the behavior of the opposite party, the complainant suffered lot mentally and situation had arisen that the complainant was to be in imprison. The complainant had approached the Bar council and also to the police, but no action has been taken. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party has admitted that, complainant had engaged her in the said cases. However, the opposite party has denied the payment of the amount towards fees as alleged. All most all material allegations are denied and the said denials need not be repeated here. It is stated that, opposite party defended the complainant in the said cases in all respect and whenever the complainant was absent, exemption petitions were filed and also it is stated that, against the order of the Executive Magistrate, Revision Petition was filed before the District and Sessions Judge, Mysore, which has been disposed on merit etc. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. In support of the respective contentions, the complainant and the opposite party have filed their affidavits and various documents are produced. The complainant has filed written arguments. So also, we have heard the arguments of the complainant as well as the advocate for the opposite party and perused the records. <br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> REASONS<br /> <br /> 7. Point no. 1:- The fact that, complainant had engaged the opposite party advocate to defend her in the criminal case before the JMFC, Periyapatna and in security proceedings before the Taluka Executive Magistrate, is admitted.<br /> <br /> 8. The complainant alleges that, she paid fees of Rs.25,000/- to the opposite party to defend her in security proceedings and also to obtain stay from Mysore Court and also a sum of Rs.8,000/- was paid in the criminal case before the Magistrate in addition to payment of Rs.300/- on 13 hearing dates. So for concerned to payment of fees by the client to the advocate, it is their understanding and contract. Hence, assuming that as alleged the complainant has paid the fees to the opposite party advocate, it will not amounts to any deficiency in service on the part of the opposite party.<br /> <br /> 9. Of course, the advocate in spite of receipt of the fees and the necessary instructions from the client filed to discharge his duties, then it amounts to deficiency. In the case on hand, it is admitted fact that, the opposite party defended the complainant in the security proceedings and he had filed a revision petition before the District and Sessions Court, Mysroe and had obtained stay to the notices issued by the Taluka Executive Magistrate. However, the Sessions Court hearing the arguments of both sides, dismissed the revision petition. Further, it is pointed out for the opposite party by the learned advocate that on account of lapse of the period, the proceedings abated. Hence, under the circumstances, so for concerned to the security proceedings, we are of the opinion that, complainant has not established deficiency in service on the part of the opposite party.<br /> <br /> 10. As regards the criminal case pending before the JMFC, even though, the complainant has alleged that, the opposite party remained absent from the Court, from the order sheet it can be seen that on most of the dates, the present complainant who was accused, remained absent and the present opposite party filed exemption petitions which were allowed. It is not pointed out by the complainant that for the reason that the present opposite party did not appear before the JMFC in her case and did not file exemption, for which warrants were issued.<br /> <br /> 11. In respect of the allegation that, the opposite party pressed the complainant for compromise, at the outset it may be noted that in the order sheet itself, the Magistrate has noted that, it was fit case for compromise. Under the circumstances, even assuming that the present opposite party suggested or proposed for compromise, does not amounts to deficiency in service. The complainant was at liberty to agree or not to agree to the suggestion made by her advocate regarding compromise.<br /> <br /> 12. It is true that, the records disclose that the opposite party did not continue in the said criminal case and has given no objection on the vakalath to the present complainant who was accused to engage advocate of her choice. The complainant herself in the complaint has stated that many times she had informed the opposite party that she intend to engage some other advocate. Moreover, in the complaint further it is mentioned that, the opposite party sent no objection on the vakalath stating that, when the complainant has no faith in the opposite party, he informed that he do not intend to continue the matter as an advocate and thanking the complainant, he returned the FIR copy etc., Also, specifically in the complaint it is stated that, through SMS the opposite party informed the complainant that the hearing of the case was fixed on particular day and also informed, in case of non-appearance, warrant will be issued for which complainant may not complain against the opposite party. In view of these facts, we are of the opinion that, the complainant has not made out any deficiency in service on the part of the opposite party. <br /> <br /> 13. After the opposite party gave no objection, the complainant appeared before the Court and some other advocate let it be free legal aid or otherwise, is contesting the case through some other advocate. The complainant alleges that, the opposite party did not receive the evidence or document and did not conduct the case properly. To substantiate this fact and to establish negligence on the part of the opposite party that he did not efficiently cross-examine the witnesses if any, no evidence on the point is placed on record. Also, it is relevant to note that, after the present opposite party gave no objection, the advocate who later represented the present complainant, had filed application for recall of the witnesses and that application came to be allowed. It appears, said criminal case is still pending. It is not established that because the present opposite party did not conduct the case, she has been convicted etc., <br /> <br /> 14. The complainant in the complaint all along has alleged that, the opposite party had sent SMS regarding certain matters as noted here before, but the said SMS are not produced. Moreover even if same are taken into consideration, no sufficient ground to hold deficiency in service on the part of the opposite party. <br /> <br /> 15. As regards, the allegations that the opposite party persuaded the complainant to received money regarding quarry matter and persuaded the complainant to see that her father agree for tele film etc., is not matter for consideration by this Forum.<br /> <br /> 16. Considering the facts, material on record and the discussion made here before, in our opinion the complainant has not proved deficiency in service on the part of the opposite party and accordingly, our finding on the above point is in negative. <br /> <br /> <br /> 17. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd December 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />