Date of Filing:13.03.2008<br /> Date of Order:23.12.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 23RD DAY OF DECEMBER 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 705 OF 2008<br /> <br /> <br /> B.R. Sanjay<br /> No.89, 4th Cross, BCC Layout<br /> Vijaynagar, Bangalore 560 040 Complainant<br /> <br /> <br /> V/S<br /> <br /> N.S. Narasimha Swamy<br /> No.83/1, 5th Cross, I Floor<br /> Malleswaram Circle<br /> Bangalore - 560 003 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a second round of litigation. The complaint of the complainant was heard on merits by this forum. The order has been passed on 05.02.2009 dismissing the complaint. Being aggrieved by the order passed by this forum the complainant has preferred an appeal before the Hon’ble State Consumer Disputes Redressal Commission, Bangalore in appeal No. 575/2009. The appeal was heard and disposed off by order dated 22.07.2009. The impugned order was set aside. The matter has remitted back to this forum for reconsideration according to law in view of the observations made in the order. After remand of the matter again the matter was heard. Arguments of complainant and the opposite party are heard. The complainant has not engaged advocate. He himself submitted his arguments. <br /> 2. The brief facts of the case of the complainant as enumerated by Hon’ble State Commission are as under:<br /> “The complainant is a qualified Engineer and was working in a MNC known as HCL Perot System. He was illegally removed from the service by the Company. He approached a lawyer by name Ramachandra Reddy. A petition was filed in Labour Court, Bangalore. He realized that the Advocate Mr. Ramachandra’s knowledge is highly inadequate and he took back the case and NOC from the said Advocate and entrusted the same to the OP who is also an Advocate. He requested OP to rectify the previous Advocate’s mistake and to get back his job at the earliest. OP promised that he will put his best efforts to get back his job and collected Rs. 2,000/- from the complainant towards professional charges. The OP neglected the complainant’s case and not taken proper steps. It was the duty of the OP to get proper relief to the complainant, but the OP has failed. The OP should have filed a Memo about the complainant’s willingness to report for duty immediately as the complainant was unemployed and going through extreme financial hardship. The OP did not file any willingness memo. The complainant requested the OP to file interim relief application, but the OP gave wrong advice saying not to file such application. The complainant’s case was transferred from II Additional Labour Court to I Additional Labour Court and OP gave wrong information to the complainant that the case will not proceed till new judge is appointed. The OP has totally collected Rs. 5,000/- for providing legal service. The OP has handled the complainant’s case with utter negligence and has offered deficient service. Therefore, alleging deficiency of service on the part of the OP, the complainant filed the complaint before the District Forum for necessary compensation.”<br /> 3. The opposite party has filed defence version stating that complaint is not maintainable either in law or on facts. Complainant has made vague allegations against opposite party who is a practicing advocate. The complaint against the opposite party has been filed before Karnataka State Bar Council, Bangalore. The matter was heard there. Finally, the authority came to conclusion that there is no truth in the allegation of the complainant. The Bar Council of Karnataka rejected the complaint of the complainant by order dated 03/04/2008. After suffering an adverse order the complainant is again making another unsustainable attempt through this complaint. Therefore, on this ground the complaint is liable to be rejected. The opposite party submitted that the opposite party being an Advocate of the complainant he would decide whether there is any ground to seek interim relief. A memo has been filed by the opposite party on behalf of the complainant thereby expressed his ready and willingness to work in the management on 19/03/2005. Application for amendment was filed on 31/05/2005 and it came to be allowed on 16/11/2005. It is submitted by the opposite party that no damage is caused to the complainant. It was denied that there was any negligence or deficiency in service on the part of the opposite party. The opposite party has never acted against the interest of the complainant while conducting the case. Therefore, the opposite party prayed to dismiss the complaint. <br /> 4. The points for consideration are:- <br /> 1. Whether the complainant has proved deficiency in service on the part of the opposite party?<br /> 2. Whether the complainant is entitled for compensation?<br /> 5. The Hon’ble State Commission in the appeal has stated that “from the materials produced before the District Forum, it is seen that the complainant has alleged many of the negligence such as not filing a memo, not filing interim application and amendment application and not getting the early relief to the complainant. The OP has argued that the memo was filed late, because the management has filed its version at a later point of time. All these aspects are required to be proved by the complainant by producing the material before the District Forum. From the impugned order, it is not forthcoming whether such materials are produced before the District Forum. Therefore, on a careful consideration of the impugned order, in our opinion, the matter requires reconsideration by the District Forum with regard to the negligence / deficiency of service by the OP in conducting his case by the OP. But, the District Forum has recorded a finding that there was no negligence or misconduct by the OP. Therefore, the impugned order cannot be sustained.” As a matter of fact complainant having engaged advocate to represent his case before the Labour Court it is the advocate who has to take proper steps and action in a given case which will be legal, suitable and justifiable to the facts of the case. The advocate on record has to take decision whether the interim relief application can be filed or not. Even if such application or memo filed, is there any chance of getting relief from the hands of court. Ultimately, the advocate represents the party. He cannot decide the case or pass order favourable to the party. Passing orders or giving decision is the duty and prerogative of the court. The litigants before the court cannot presume that court is going to pass orders in their favour merely because an application or memo is filed seeking relief. The advocate being master of his case and a legal person he has to take decision of filing interim application or any kind of memo depending upon the facts and circumstances of the case. Merely because advocate has not filed interim application or memo it cannot be presumed or assumed that he has committed deficiency in service or negligence in conducting the case of his client. Likewise filing of amendment application is also within the purview or to the best discretion of the advocate who is incharge of the case. Advocate knows better than his client. The advocate has to take decision as to when an amendment application has to be filed before the court. Again the advocate has to decide whether in a given case seeking amendment or filing amendment petition is necessary or it is in the interest of his client. It is admitted position of law in Civil Procedure Code U/O 6 Rule 17 an amendment petition for amending the pleadings of parties can be filed at any stage of the suit or proceeding. There is no time limit for filing amendment application. Merely because the advocate who is incharge of the case has not filed amendment application at an early date cannot be considered as a deficiency in service. In this case the complainant’s allegation is that opposite party has not filed amendment application at an early stage. This amounts to deficiency in service. A client who has engaged advocate has to keep complete faith and trust on his advocate. He cannot go on dictating terms and making suggestions to the advocate. The advocate will act and take necessary steps as and when required by law. Filing amendment application at a later stage in a given proceeding or suit cannot at any stretch of imagination be considered as a deficiency in service. If these things go on then no advocate is safe and it will be absolutely difficult for any legal practitioner to practice law before any court of law. Therefore, taking any view of matter and after considering all the facts and circumstances of the case and submissions of both parties I am of the opinion that it cannot be said or held that the opposite party in this case has committed deficiency in rendering legal service. The complainant while arguing his case submitted that he has lost his case in Labour Court and Labour Court has passed a final order some time in the month of May or June 2009. The complainant has fairly submitted before this forum that he has lost his case before Labour Court. So under these circumstances when the complainant himself has conducted the case before Labour Court and ultimately, lost his case and the Labour Court did not grant any relief to the complainant, this fact goes to show that the Labour Court could not have granted any interim relief to the complainant even if an application to that effect was filed by the opposite party. Therefore, filing interim relief application at a later stage or not filing was immaterial in this case. The complainant had also filed his complaint before the Karnataka State Bar Council and matter was heard there. The statutory authority has passed orders dismissing the complaint by order dated 03.04.2008. It was held by the Bar Council that the Advocate has not committed professional misconduct and it was resolved to dismiss the complaint. The legal authority constituted under the Advocates Act after holding enquiry has come to conclusion that there is no misconduct. The complainant again approached this forum. This is not a proper approach for any client. The complainant had engaged one Sri Ramachandra Reddy as an advocate and he changed him stating that he has no knowledge of law. Thereafter, he engaged present opposite party and thereafter, he taken NOC and engaged another advocate and again he left that advocate and personally conducted case before the Labour Court and ultimately, the case of the complainant came to be dismissed by the Labour Court. Advocates are considered to be guardians of the Indian Constitution they are the part and parcel of the administration of justice. Bar and Bench are considered to be two wheels of the chariot. Bench and Bar are two faces of same coin. If one face of the coin is defaced and defiled then the coin goes out of the circulation. Therefore, the litigants before making allegation of negligence or professional misconduct against a member of Bar should be very careful and without proper evidence of misconduct they shall not file untenable complaints against the members of Bar. A legal professional is considered to be a noble profession. They argue and conduct the cases for the cause of justice. The other argument advanced by the complainant that the delay in disposal of his case in Labour Court. Again on this point the Advocate cannot be held responsible. There are so many factors for the delay in disposal of cases. The role of one Advocate will not be there, some times the opposite Lawyer may seek time, the parties to the proceedings will not be ready with the case they may seek adjournment, on some dates the Court will be engaged in other matters and the cases may not reach on the date of hearing like wise they are multiple reasons for getting the case delayed in the Court of law. Therefore, if there was any delay in disposal of cases for that the Advocate concerned shall not be held responsible and it will not amount to misconduct or negligence on the part of opposite party. Taking into consideration of all the facts and situations of the present case, there is no deficiency of service on the part of the opposite party. Therefore, the complaint deserves to be dismissed. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The Complaint is dismissed. No order as to costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 23RD DAY OF DECEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> I concur the above findings.<br /> <br /> MEMBER <br />