This appeal is preferred against the order dated 25/1/2008 passed in CC No.26/07 by the District Forum, Wardha by which the complaint has been partly allowed.
The case of the complainant, as set forth in the complaint, in brief is that the Opposite Party (for short OP ) Nos.1 & 2 launched a contest by name “Surf Excel Blue contest” and thereby offered to the general public amount of Rs.5 lac towards student scholarship and other prizes. As per that scheme, the participant had to buy new Surf Excel quick wash tab having 10/10 contest printed on it and whoever gets a cloth (swatch) having numerical score as 10/10, would get Rs.5 lac as scholership. Therefore, the complainant purchased packet of surf excel Blue on 2/11/2006 from OP No.2 by paying cash. The Bill was issued in the name of father of the complainant by OP No.2. The complainant found swatch having printed thereon 10/10. Therefore, she sent the same to OP No.1 by Registered Post on 6/11/2006. OP No.1 received it on 14/11/2006. The OP No.1 informed the complainant that as no code number is written on that swatch, her claim cannot be accepted. Therefore, the complainant claimed Rs.5 lac from the OP Nos.1,2 & 3. She also claimed Rs.50,000/- for not settling the claim by the OPs. She also claimed cost of the complaint.
The OP No.1 appeared and filed its written version on 8/8/2007 and submitted that the swatch sent by the complainant was not kept in the pocket of Surf Excel Blue and that the said swatch submitted by the complainant has been tested and found that it is a false swatch. No code number is written on it and there is no signature of the concerned officer on it. The OP No.1 produced the Xerox copy of the genuine swatch before the Forum and submitted that the cause of action did not arise within the jurisdiction of the Forum and the complainant is not a consumer and prayed that the complaint may be dismissed.
The other OPs also appeared and filed version and denied their liability to pay scholarship amount.
The Advocate of the OP No.1 filed no instruction pursis on 7/1/2007 and, thereby, he withdrew his power. The Forum below, therefore, heard advocates of the complainant and OP Nos.2,3 & 4. The Forum below, thereafter passed the impugned order giving direction to the OP No.1 to pay Rs.5 lac to the complainant towards scholarship with interest @ 9% p.a. and further to pay Rs.2000/- to her towards cost of the complaint. No order was passed against OP Nos.2 & 3.
Feeling aggrieved by the said order, the appellant Hindustan Unilever Ltd.Co. i.e. OP No.1 has preferred this appeal. The delay in preferring appeal has been condoned as per order dated 9/2/2010.
The advocate Shri.Rathi appeared for Respondent No.1 in appeal and Advocate Kataria appeared for Resp.No.4 in appeal on 10/7/2008 as seen from the order sheet dated 10/7/2008. Shri.Jailpal Magar, the Clerk of Respondent No.2 had appeared on 9/8/2012 without authority letter. He was directed to bring authority letter on next date. Resp.No.3 failed to appear though served with notice before admission. Therefore, this commission proceeded exparte against Resp.3 as per order dated 9/8/2012. The appeal was then admitted as per order dated 19/12/12. Notice after admission was issued to Resp.Nos.1 to 4 on 17/12/2012 by this Commission. Mr.Prakash Patil, the father of Resp.1 appeared on 3/4/13 and sought time to engage advocate. Adv.Tak appeared for Resp.3 on 3/4/13. The Resp.2 & 3 failed to appear though duly served with notice. The Adv.of the appellant filed service affidavit on 23/7/2013. This commission proceeded exparte against Resp.2 & 4 for final hearing as per order dated 23/7/2013. The appeal was adj.for final hearing till 17/9/13. The appellant’s advocate filed WNA on 17/9/13. None appeared for Resp.1 & 3 on that date for final hearing. Therefore, we heard the advocate appearing for the appellant on 17/9/13 and the appeal was then adjourned for judgment till this date.
The Ld.Advocate of the appellant raised main contention that the advocate of the appellant engaged to contest the complaint did not issue notice to the appellant for withdrawal of his power and without such notice he could not withdraw his power. He thus submitted that the Forum below also could not have proceeded exparte against Ori.OP No.1/appellant when no prior notice was given by the Adv.of appellant to it. He relied upon observations made in the case of Dattusingh, Girdharsingh Rajput (Thakur) Vs.Bhagwant Devsthan, Barshi & Ors., reported in 2005(2) Mh.LJ 743 in support of his said submission. It is observed by Hon’ble High court in that case that an advocate does not get discharged by merely filing a “No instructions Pursis” and that the condition precedent for grant of leave to withdraw appearance by an advocate is that a written intimation of his intention to do so has to be served on the client atleast 7 days in advance and the practice adopted by Civil Courts of treating the act of filing a “No instructions pursis” by an advocate as discharge of the advocate is deprecated.
Thus, relying on the said decision, the Ld.Advocate of the appellant submitted that as the appellant did not receive any intimation from its advocate about his withdrawal of power, the appellant was under impression that its advocate would duly defend it before the Forum below. He further submitted that when news was published in local newspaper about allowing the complaint against the appellant, the appellant learnt about passing of order against it. Thus, according to him, appellant was not given proper opportunity to engage another advocate and to contest complaint on merit and hence the appellant is prejudiced by the course adopted by the Forum below in proceeding exparte against it. He therefore submitted that on this short ground itself, the impugned order dated 25/1/2008 deserves to be set aside and the matter may be remanded for deciding it afresh after giving opportunity of hearing to the appellant.
The Ld.Advocate of the appellant also argued on the merits of the case, however, we find that as we are satisfied for the following reasons that the complaint needs to be remanded, we do not enter into the merits of the case.
The impugned order shows that the advocate of the Ori.OP No.1/appellant had only filed “No instructions Pursis” before the Forum on 7/1/2008 and, thereafter the proceeded further and decided the complaint. We find substasnce in the submission of the Ld.Advocate of the appellant that no intimation was given by appellant’s advocate engaged in the complaint by serving notice to it about withdrawing his power. Thus, in the absence of any such notice, to the appellant, the District Forum below would not have allowed the advocate of the appellant/Ori.OP No.1 to withdraw his power. The Hon’ble Bombay High Court in the above referred case has held that mere filing of No instructions pursis without prior notice to the client by the advocate does not amount to discharge of the advocate. The Hon’ble Bombay High Court has deprecated such practice of accepting No instruction Pursis of Advocate without any notice as discharge of the advocate. Therefore, the Forum below, ought to have directed the advocate of appellant, initially to serve notice to the appellant of his intention to withdraw his power and then to file such a No instruction pursis alongwith copy of notice with acknowledgment signed by appellant/OP No.1 about receipt of the same. However, the Forum below did not adopt such a recourse of law and erroneously proceeded to decide the complaint.
We, thus hold that as the appellant/Ori.OP No.1 was not given intimation by his advocate about his intention to withdraw power, it could not another advocate to represent it before the Forum below at the time of final hearing. Therefore we find that proper opportunity of hearing was not given to appellant/OP No.1 by the Forum below, which resulted into erroneous order. Thus, we hold that the appeal deserves to be partly allowed and the complaint deserves to be remanded to the Forum below for deciding it afresh as per provisions of law.
ORDER
The appeal is partly allowed as under.
The impugned order dated 25/1/2008 passed in CC No.26/2007 by the District Forum, Wardha is hereby set-aside.
The complaint bearing CC No.26/2007 is remanded to the District Forum, Wardha for fresh hearing and decision according to law.
The appellant shall appear before the District Forum, Wardhaon 2/12/2013.
The District Forum, Wardha shall issue notice to Ori. complainant Manisha Prakash Patil and Original OP No.2 & 3 for fresh hearing.
No orders as to cost in appeal.
