BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 165/2006 Filed on 07.06.2006<br /> Dated : 15.05.2008<br /> Complainant:<br /> G. Vikraman Nair, Vadakke Uttarathalaveedu, Pappanamcode, T.C.No. 1845/54, Thiruvananthapuram – 18.<br /> Opposite party: -<br /> Santhivila M.P. Sasidharan Nair, Advocate & Notary, Vasantha Building, Vanchiyoor, Thiruvananthapuram – 35.<br /> (By adv. Smt. M. Sulekha)<br /> <br /> This O.P having been heard on 03.04.2008, the Forum on 15.05.2008 delivered the following:<br /> ORDER<br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> This complaint is filed for directing the opposite party to pay the complainant a sum of Rs. 46,500/- towards compensation. The case of the complainant is that complainant is a commission agent attached to the Central Kerala Commission Agent Association Reg. No. 134/93. Complainant has acted as a middleman to purchase some property in favour of one Sreekantan Nair on commission basis. Sreekantan Nair did not pay the commission (brokerage) of Rs. 18,000/- as agreed by him when Sreekantan Nair purchased the property. To recover the said amount of Rs. 18,000/- complainant engaged the opposite party to institute a case against Sreekantan Nair before the Munsiff Court, Thiruvananthapuram. Opposite party filed a case against Sreekantan Nair as OS 1571/98 before the Munsiff Court, Thiruvananthapuram. Because of inaction and negligence of the opposite parties OS 1571/98 was dismissed. Thereafter the complainant engaged the opposite party to prefer an appeal against the judgement in OS 1571/98 and handed over the required money to file an appeal to the opposite party. The opposite party preferred appeal as AS 30/02 before the District Court, Thiruvananthapuram. On 01.11.2004 the said AS 30/02 was dismissed. Opposite party did not inform the dismissal of the appeal to the complainant. On a perusal of the appeal it is known to the complainant that the junior counsel of the opposite party was not ready to argue the appeal. Due to the delay in informing the dismissal of the said appeal complainant could not prefer a second appeal before the Hon’ble High Court. Opposite party received huge amount from the respondent of the said appeal with dishonest intention to deceive the complainant and with a calculated attempt. Opposite party did not argue the appeal and the dismissal of the said appeal was not informed the complainant on time. Hence this complaint claiming a compensation of Rs. 46500/- from the opposite party.<br /> <br /> Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. It is true that opposite party has conducted a case as OS 1571/98 on behalf of the complainant. It is the bounden duty of the complainant to prove that he is entitled to get Rs. 18000/- as per agreement from the defendant in OS 1571/98. As per the request of the complainant opposite party issued an advocate notice to the defendant in OS 1571/98. It is only on the basis of an advocate notice opposite party was forced to file OS 1571/98. No other documents were furnished by the complainant to substantiate the case. Witness names were not furnished by the complainant. Since complainant had conducted several cases by different lawyers he would very well know about the case proceedings before the Civil Court. OS 1571/98 was dismissed because of non-production of the related documents and witness schedules by the complainant. Opposite party has not received any amount from the complainant in filing cases since complainant was a servant of the opposite party. The opposite party has informed the complainant the posting date of the said AS 30/02. Moreover the complainant would often visit the opposite party’s office and note the posting dates. Complainant was also aware of the dismissal of AS 30/02. The averment that he did not know the dismissal of AS 30/02 is absolutely false. AS 30/02 was dismissed on merits for which the complainant could not allege any deficiency on the part of this opposite party. Complainant himself informed this opposite party that he would not prefer the second appeal. Due to some inconvenience incidentally happened to this opposite party, opposite party could not appear before the appellate court on the date when the appeal was posted for hearing, instead, opposite party deputed his junior counsel for an adjournment. But Hon’ble appellate court disposed of the appeal on merits on the basis of the lower court records and evidence. AS 30/02 was not dismissed for default. Opposite party has not received any amount towards advocate fee from the complainant. The averment in paragraph 9 of the complaint is denied. There is no cause of action for filing this complaint. It is only to be dismissed. Complainant was a servant of this opposite party and exploiting some enmity existing between the complainant and opposite party complaint filed this complaint to tarnish the image of this opposite party who is a senior lawyer of Thiruvananthapuram bar. But the complainant was working as a servant of this opposite party. This opposite party engaged the complainant to look after the property and construction works of a building therein. While doing so this opposite party noted some financial malpractice on the part of the complainant and thereafter opposite party restrained the complainant from the ongoing work. It was for this reason why in order to wreak vengeance against opposite party, complainant filed this frivolous and vexatious complaint. Hence opposite party prayed for dismissal of the complaint with costs. <br /> <br /> The points that would arise for consideration are:-<br /> (i) Whether there has been deficiency in service on the part of <br /> opposite party?<br /> (ii) Reliefs and costs.<br /> <br /> Complainant has filed an affidavit of himself as PW1 and a witness as PW2 in lieu of examination in chief and Exts. P1 to P11 were marked. Opposite party has filed an affidavit of himself as DW1 and Exts. D1 and D2 were marked.<br /> <br /> Points (i) and (ii):-The first point requiring consideration is whether there has been deficiency in service on the part of opposite party. The submission by the complainant is that opposite party was engaged in conducting a case against the defendant in OS 1571/98 before the Munsiff’s court, Thiruvananthapuram for recovery of money. The said OS 1571/98 was dismissed because of non-production of records and witness schedule before the court in time by the opposite party. To prefer appeal against this judgement in OS 1571/98, again opposite party was engaged. Opposite party filed appeal as AS 30/02 which was dismissed by the appellate court. The complainant alleges that the dismissal of appeal was due to negligence and deficiency of service on the part of the opposite party. The judgement in OS 1571/98 is on the record, but which was not marked. A perusal of judgement in OS 1571/98 would show that it was disposed of on merits. Complainant himself was examined as PW1 and Exts. A1 to A3 were marked. Exts. A1 to A3 were advocate notice, postal receipt and photocopy of identity card. The court observed that, except the solitary testimony of the plaintiff as PW1, no agreement was produced before the court to prove that there was a contract between the plaintiff and defendant for the defendant’s purchase of landed property. The court also found that plaintiff himself admitted that it was without his knowledge the sale document was effected by the defendant with the vendors of the defendant. The defendant submitted that the said case was instituted as an experimental measure abusing the process of law. On going through the contents in judgement in OS 1571/98, it is crystal clear that the said case was disposed of on merits. Hence complainant cannot attribute any negligence or deficiency in service on the part of opposite party in conducting the above case. Further complainant alleged that the AS 30/02 was dismissed due to the negligence and deficiency in service on the part of opposite party. Ext. P1 is the attested copy of the judgment in AS 30/02. AS 30/02 was filed against the judgement in OS 1571/98. A perusal of Ext. P1 would reveal that the appellate court had dismissed the appeal on merits. The appellate court observed that though appellant claimed to be a middleman commission agent for purchase of property by the respondent, there was no document to prove that the transaction came into effect through the intervention of the appellant. The documents marked did not in any way connect the claim of the appellant. Hence the judgement of the Munsiff Court was confirmed by the appellate court after hearing the respondent. It was observed in the appellate judgement that even though the junior counsel of the counsel concerned was present at the time of hearing junior counsel was not ready to argue. But it is pertinent to note that the case was dismissed on merits. The opposite party in this case filed affidavit contending that there was no negligence and deficiency in service on his part in conducting OS 1571/98 and AS 30/02. It is admitted by opposite party that opposite party could not attend before the appellate court at the time of hearing because of inconvenience incidentally happened to him but opposite party deputed his junior counsel to pray for time for argument. Nothing has been brought out by the complainant on cross-examination of the opposite party to prove otherwise. It is also stated in the affidavit of the opposite party that OS 1571/98 was filed only on the strength of an advocate notice. No other relevant documents had been brought out by the complainant. Complainant had no other documents to substantiate his case. It is also deposed by the opposite party that complainant had good experience in conducting several cases, he would know the fate of the case without furnishing relevant documents. Opposite party was compelled to file OS 1571/98 and AS 30/02 only because the complainant was a servant of this opposite party. Opposite party never received advocate fee or other expense to institute the above suits. Nor did complainant prove that opposite party received any amount from the respondent in AS 30/02 for not arguing the appeal. Opposite party deposed that he had informed the complainant timely about the dismissal of AS 30/02. No material on record to controvert the evidence adduced by DW1. The documents marked as Ext. P2 to P11 did not in any way connect the claim of the complainant. PW2 would depose that he was having no link with this complaint. PW2 admitted the photo seen in Ext. D1 newspaper is his and on the basis of news appeared in Ext. D1 a crime was registered against PW2. The copy of the FIR is marked as Ext. D2. PW2 also admitted that he was convicted in another similar case. PW1 admitted that he would know the PW2 for the last more than 30 years, but he did not identify the photo of PW2 seen in Ext. D1. PW2 deposed that he would know the complainant for about 10-12 years. It is also admitted that firstly PW2 met the complainant at the office of opposite party. On going through the complaint, affidavits of PW1 and PW2, Exts. marked, version and affidavit of the opposite party and hearing the complainant and opposite party, it appears that complainant has not approached this Forum with clean hands. Nothing has been brought out by the complainant to attribute negligence and deficiency in service on the part of opposite party. Dismissal of OS 1571/98 and AS 30/02 was on merits. No case was leveled against the opposite party that the documents furnished by the complainant were not produced by the opposite party before the court. No evidence to show that opposite party has received any amount either from the complainant to conduct the above case or from respondent in AS 30/02 for not arguing the appeal. Complainant has totally failed to establish his case. <br /> <br /> In the result complaint is dismissed. No order as to costs. <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th May 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> <br /> jb<br /> <br /> <br /> O.P.No. 165/2006<br /> APPENDIX<br /> <br /> I COMPLAINANT'S WITNESS :<br /> <br /> PW1 – G. Vikraman Nair<br /> PW2 - M.S.M. Nair<br /> <br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Certified copy of judgement No. AS 30/02 dtd. 1st November 2004.<br /> P2 - Copy of notice issued to the opposite party dated 20.03.2006.<br /> P2(a) - Postal receipt dated 20.03.2006.<br /> P2(b) - Acknowledgment card addressed to the opposite party.<br /> P3 - Original reply notice issued to the complainant.<br /> P4 - Certified copy of petition submitted to City Police Commissioner by Smt. Mary.J.M dated 27.07.2005.<br /> P5 - Certified copy of FIR No. 496/05 dated 26.07.2005.<br /> P6 - Certified copy of report filed by the Sub Inspector of Crime Bureau dated 29.07.2005.<br /> <br /> P7 - Certified copy of report filed by the Sub Inspector of Crime Bureau dated 30.07.2005.<br /> <br /> P8 - Certified copy of FIR dated 06.08.2005 filed by Police Sub- Inspector, Vanchiyoor Police Station.<br /> <br /> P9 - Photocopy of judgement dated 08.12.1995 of calendar case No. 296/94.<br /> <br /> P12 - True copy of judgement of Lok Adalath Case OS No. 784/03 dated 10.07.2004.<br /> <br /> P13 - True copy of judgement of Lok Adalath Case OS No. 784/03 dated 7th November,2004.<br /> <br /> P14 - True copy of petition No. CP 113/04 dated 30th October 2004 filed to he Kerala Bar Council.<br /> <br /> <br /> III OPPOSITE PARTIES' WITNESS :<br /> <br /> DW1 - M.P. Sasidharan Nair<br /> <br /> <br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> <br /> <br /> D1 - Mathrubhumi daily dated 16.01.1992.<br /> <br /> <br /> D2 - Certified copy of FIR No. 11/92 dated 14.01.1992.<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br />