ADV. RAVI SUSHA , MEMBER

            Complainant’s case is that:Complainant filed an injunction suit before Munsiff court , Kollam  having No.OS.369/05 through Adv. Shaheed Ahammed [opp.party 3 ].  After that he advised the complainant to compromise or settle the case.   Then the complainant apprehends that the 3^rd opp.party was influenced by the defendant  in that case and hence  changed  his vakalath to 1^st opp.party.   The complainant has changed the vakalath of  OS.365/05 also  from 3^rd opp.party to 1^st opp.party.  When the cases were posted for evidence the 1^st opp.party advised the complainant not to enter in to the court for  giving evidence.   Actually   he was present at the verandah.  Hence both cases were dismissed.   The complainant further allege that  the records which were entrusted to the 1^st opp.party for presenting before the Munsiff’s court were not produced before the court.   After filing restoration petition the complainant changed the vakalath of the above cases to 2^nd opp.party  He also did not conduct the cases properly and did not produce the records before the court.  Hence both case were dismissed against the complainant.   The complainant  claiming  one lakh from the opp.parties as compensation which he spent to the opp.parties as legal  fee.  The complainant allege deficiency in service against  the opp.parties and filed this complaint for  getting relief

Opp.parties filed separate version opposing the pleadings of the complainant and pray for the dismissal of the complaint.

Points that would arise for consideration are:

1.     Whether the there is any deficiency in service on the part of the opp.parties:

2.     Reliefs and costs.

For the complainant PWs.1 and 2 were examined and marked Exts. P1 to P7

Exts. D1 and D2  marked on the side of the opp.parties.

POINTS:

This case is against three advocates of Kollam Association.   The opp.parties are independent  advocates with their own offices and they have no connection between each other as far as their practice is concerned.   The reason for arraying  all these three advocates together in this complaint is only due to the reason that all of them appeared for the complainant in his cases before the Hon’ble Munsiff’s court. Kollam in suit with No.369/2005 and 365/05 at different points of time.

          The complainant changed his vakalath in case No.369/05 from 3^rd   opp.party and engaged to the 1^st opp.party.   The allegation against 1^st opp.party  is that the date on which the cases 369/05 and 365/05 were listed  the complainant was present at court varandha for giving deposition, the 1^st opp.party prevented him from entering in to the court hall by saying that he need not appear before court.   So both the case were dismissed.   The first opp.party’s contention is that on 2.8.2008  OS.No.369/2005 was listed for taking evidence.   When the case was called the complainant was not present.   So the case was  decided  in his absence and the plaint was dismissed.  On that day according to the records of the court the plaintiff was absent.   For taking back the case to file, the complainant  had filed an affidavit showing the ground  of his absence in court and prayed for restoration of the case dismissed for default.   The reason he stated for his absence was that  his son was laid up on 2.6.2008.  In the affidavit, the complainant had clearly stated that he had known about the dismissal of the case on 7.8.2008 when he approached his lawyer with regard to the case.   According to 1^st opp.party, after giving such an affidavit and after taking back the case of file in the year 2009 he had come with another version before the Forum is not true and correct.  In the complaint, the complainant  mentioned that the two cases were posted on the same day for evidence and  both the case were dismissed.  1^st opp.party contented that the above said version of the complainant is not true.  Only 369/2005 was listed for evidence on 2.6.2008 and that  was a suppression of material fact..  1^st opp.party produced Ext. D1 the certified copy of affidavit filed by the complainant in OS 369/05, for restoring the case, for proving his contention.  The perusal of Ext. D1 it is revealed that the contention of 1^st opp.party before the Forum is correct.   According to the 1^st opp.party, the complainant had produced a Medical certificate also to prove the fact that his son was laid up on 2.6.2008.  From the above said evidence we are of the view that the complainants version that on 2.6.08 he was really present at varandha and 1^st opp.party prevented him from entering the court hall is not correct.   The point found accordingly.

          The next allegation against the 1^st opp.party was that though the complainant had entrusted all the records connected with the cases the 1^st opp.party had not filed even a single document before  the court.  Hence  his cases were dismissed.  In Ext. P1 judgment of OS.369/05, it can be seen that the plaintiff’s counsel was Adv. Sri.Aboobaker Kutty and there is no dispute that the plaint was filed by 3^rd opp.party Adv. Sri.Shaheed Ahammed. There is no dispute that opp.party 1 has taken his vakalath at the stage of  framing  issues.  As per the present Law production of documents had  to be made at the time of institution of the suit.   The complainant has no case that the 1^st opp.party had not given back the records when the vakalath was given up.  If the 1^st opp.party was in possession of any document, the complainant would have taken action against the 1^st opp.party.  Hence the complainant’s above said contention is unreliable.

According to the 1^st opp.party complainant is not a consumer of  him, because  1^st opp.party had received any remuneration as legal fee.  1^st opp.party contented that the complainant had produced the copies of decrees of Munsiff’s court cases numbered as 369/2005, 365/2005.  But no such decrees were produced before the Forum.   There is no dispute that the 1^st

opp.party conducted the  above case in same stages.   Without any evidence we are of the view that the 1`st opp.party has received legal remuneration from the complainant for conducting cases.  So the complainant is a consumer of 1^st opp.party. New matters dealt with by the complainant in the chief affidavit do not deserve any consideration since those facts were not all mentioned in the complaint..  From the  available evidences we are of the view that there is no deficiency in service on the part of the 1^st opp.party in conducting OS369/2005 and OS365/2005 of the Munsiff court, Kollam.       

The allegation  against  2^nd opp.party is that he has received Rs.1000/- from the complainant as cost for  restoring OS 369/2005 and after taking vakalath the 2^nd opp.party had not filed the documents and not conducted the case properly and thereby cheated the complainant.   2^nd opp.party opposed the contentions of the complainant.   According to 2^nd opp.party, for restoring OS369/05, the Hon’ble Munsiff’s Court ordered Rs.300/- each to  three defendants.  Hence he received Rs.1000/- from the complainant.  More over the 2^nd opp.party contented that he had produced all the documents before the court which were entrusted to him by the complainant and also he had  filed chief affidavit of the plaintiff. complainant  and cross examined the 3 witnesses of the defendants and argued the  case before the court The perusal of exhibits it can be seen that the 2^nd opp.party  conducted only OS369/05.  The perusal of Ext.P1 judgment of OS.369/05 it is seen that opp.party 2 is the counsel for the plaintiff and four documents were produced.   There is no contention in Ext.P1 judgment that plaintiff’s counsel has not cross examined the defendant and his witness.   The finding in Ext.P1 judgment is that the suit filed by the plaintiff/complainant was for injunction and the complainant was liable to claim a relief of declaration of title.  In OS 369/05 , the plaintiff had produced only the certified copy of sale deed  No. 6153/04 executed  by the plaintiff’s father in his favour.  The original of sale deed  did not produced.  In Ext.P1  it is  also mentioned that the original sale deed was pledged by the plaintiff for getting loan.   That point shows that the complainant had not entrusted the original sale deed to 2^nd opp.party. 

On considering the available evidence there is no deficiency in service on the part of 2^nd opp.party in conducting OS 369/05 before the Munsiff’s court, Kollam.

Allegation against 3^rd opp.party is that he advised the complainant to settle or compromise the case.   From that the complainant apprehends that opp.party 3 was influenced by the defendants in the said case.   For proving the said allegation the complainant did not produce any evidence before the Forum.  Without producing evidence mere pleadings in the complaint is not sufficient.  Hence   our view is that the complainant failed to prove deficiency in service against 3^rd opp.party.

Another allegation against all the 3 opp.parties is that the complainant had spent about a Lakh of Rupees as advocate fee to the three advocates.   For that also the complainant did not produce any evidence.   Without producing evidence the complainant cannot claim a lakh of ruppes from the opp.parties

OS 365/05 was dismissed.  In this case the allegation  of the complainant is that there was non payment of cost to the plaintiff as ordered by court resulted in the dismissal of the written statement.  Even though the written statement was dismissed the case was ordered  in favour of the plaintiff/complainant.   So the allegation of non payment of cost had not resulted  in any grievance to the complainant.

On considering the entire evidence we are of the view that the complainant failed to prove deficiency in service against the opp.parties.

In the result, the complaint fails and the same is hereby dismissed without cost.

            Dated this the 11^th day of October, 2012.

I N D E X

List of witnesses for the complainant

PW.1. – Stellanse

PW.2. – Kunjuraman

List of documents for the complainant

P1. – Judgment in OS369/2005

P2. – Judgment in OS365/05

P3. –Judgment in OS 480/05

P4. – Settlement deed NO.4873 of 1891

P5. – Sale deed 4872/1981

P6. – Possession certificate

P7. – Land Tax Recept

List of witnesses for the opp.party : Nil

List of documents for the opp.parties

D1. – OS 369/05

D2. – AS.263/07