ORAL
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
UTTAR PRADESH LUCKNOW
APPEAL NO. 2239 OF 2013
Sanjay Gupta, adult, son of Sri Jaipal Gupta, resident of 1115, Saket, Mawana, District Meerut
Appellant
Versus
Meerut Development Authority, Vikas Bhawan, Meerut through its Secretary
Respondent
BEFORE
HON’BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
For the Appellant : Sri Vikas Agarwal, Advocate
For the Respondent : None is present.
DATED: 12.08.2015
JUDGMENT
MR.JUSTICE VIRENDRA SINGH, PRESIDENT
Heard Sri Vikas Agarwal learned counsel for the appellant and perused the entire record.
This appeal has been filed against the order dated 01.02.2013, passed by the District Consumer Forum, Meerut in complaint case no. 144 of 2005 dismissing the complaint of the complainant for non prosecution.
It is revealed that the complaint seems to have been dismissed by the District Consumer Forum despite the fact that the complainant was being represented by his lawyer who could not appear on the date fixed on which date the complaint has been dismissed by the District Consumer Forum in default of the complainant. In
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this regard the law laid down by the Hon’ble Supreme Court which is being given below is to be perused.
“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 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
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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. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for 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.”
Looking into the aforesaid law as well as the facts of the case, we are of this view that the impugned order be set aside and the District Consumer Forum be directed to hear the complaint after affording the opportunity to both the parties on merit of the case.
ORDER
The aforesaid appeal is allowed. The impugned order is dismissed. The case is remanded back to the concerned District Consumer Forum with this direction that both the parties should be afforded opportunity of hearing and decide the complaint on merit.
The appellant/complainant is directed to appear before the concerned
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District Consumer Forum alongwith copy of this order.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
Asif
Steno-Court no.1
