Haryana

StateCommission

A/230/2015

SUMER SINGH SAINI - Complainant(s)

Versus

RADHEY SHYAM SAINI - Opp.Party(s)

IN PERSON

01 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.230 of 2015

Date of Institution: 09.03.2015

                                                          Date of Decision: 01.07.2016

 

Sumer Singh Saini s/o Late Sh.Ram Singh s/o Ram Lal H.No.1146 ZL, Adarsh Colony, Near Upper Mohalla Kalka P.O. Kalka Tehsil Kalka District Panchkula PIN Code No.133302.

     …..Appellant

                                                Versus

 

1.Sh.Radhey Shyam Saini, M.A. L.L.B., Advocate District Courts Complex, Ambala City (Hayana), P/812/1986

2.Sh.Devvrat, Advocate Civil Courts Complex, Kalka City, District Panchkula(Haryana)

3.S.Surjit Singh Saini, Advocate District Courts Complex, Ambala City (Haryana)

         …..Respondents

 

CORAM:   Mr. R.K.Bishnoi, Presiding Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Sumer Singh Saini, appellant in person.

                   Mr. J.S.Bedi, Advocate counsel for the respondent Nos. 1 & 2.

                   None for respondent No.3.

 

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

          It was alleged by the complainant that he engaged respondent Nos. 1 to 3 (O.Ps in complaint) to plead his case in a suit filed in the court of learned Additional Civil Judge (Senior Division), Kalka titled as Sumer Singh Saini  Vs. H.M.T. He paid Rs. 1 lac to OP No.1 and Rs.11,000/- to OP Nos.2 and 3 each. Rs.5,000/-  per hearing were also paid to Op No.1. In total he paid Rs.2 lacs to them. They did not appear on his behalf on 11.07.2014, 18.07.2014 and 25.07.2014. His suit was dismissed under order 17 Rule 3 Code of Civil Procedure, 1908 (in short CPC) vide order dated 25.07.2014.  He preferred an appeal against that order dated 25.07.2014 and spent Rs.35,000/- for that purpose. The Ops refused to represent him in the aforesaid suit. Due to their unscrupulous behavior he suffered lot of pain and agony. The Ops be directed to pay Rs.3,80,000/- alongwith interest @ 18 % per annum from the date of filing of the complaint and Rs.1,000/- for each date till the payment is made.

2.                          Without issuing notice to the Ops, complaint was dismissed by learned District Consumer Disputes Redressal Forum, Panchkula vide order dated 04.02.2015 on the ground that he has not submitted any document regarding the amount paid by him to the Ops.

3.                          Feeling aggrieved there-from the complainant has preferred this appeal.

4.                          Arguments heard. File perused.

5.                         Learned counsel for the OPs vehemently argued that the Hon’ble National Commission opined in D.K.Gandhi Vs. M.Mathias reported in III (2007) CPJ 337 (NC) that the complaint against Advocate is maintainable in such like cases. Appeal/SLP (C)No.3052/08 was preferred against that judgment before the Hon’ble Supreme Court wherein operation of the order passed in D.K.Gandhi’s case (supra) was stayed. The matter is still pending before the Hon’ble Supreme Court. Learned District Forum rightly came to the conclusion that complainant is not covered by the definition of consumer. Complainant also filed an  other complaint before Bar Council on the same grounds. Advocates Act of 1961 has also come into force. He should have sought remedy under that Act and this complaint is not maintainable so, learned District Forum rightly dismissed the complaint.

6.                          As per facts mentioned above, it is clear that the learned District Forum dismissed the complaint on the ground that he has not produced any evidence about payment of fee and not on the ground of maintainability. Though all the provisions of C.P.C are not strictly applicable in proceedings initiated under Consumer Protection Act of 1986 (in short, Act) but the same can be looked into for the procedure to be followed regarding disposal of complaint. As per Order V of C.P.C. after filing of plaint notice is to be issued unless on the face of it, it appears that complaint is not maintainable and is abuse of process of law. If claim is not admitted by the other party then parties are afforded an opportunity to lead evidence qua the disputed fact. If other party admits any fact then no evidence is required qua that fact.  This situation comes after filing reply by the opposite party. Learned District Forum adopted this method in the beginning and came to conclusion that the complainant has failed to prove the payment of fee. Instead of adopting this procedure, notice should have been issued to the Ops to file the reply. If the averments of complainant are admitted qua this fact then where is the necessity of leading evidence.   It is settled preposition of law that a proper opportunity is to be afforded to a party to lead evidence qua particular fact. Payment of fee is a question of fact and not law. So, learned District Forum was supposed to issue notice as far as this fact is concerned. Had the complaint been dismissed on question of law than it could not have been a different matter. It is nowhere  opined in the impugned order that complaint is false and frivolous. When no opportunity was afforded to complainant to lead evidence, impugned order cannot be sustained.

7.                          However, at this stage, it is not to be decided by this Commission that whether the complaint is maintainable or not and whether complainant should have approached an other Forum or not because learned District Forum did not deal with all these matters. At this stage, only it is to be seen whether order of Learned District Forum is justified while dismissing complaint without affording any opportunity to lead evidence. The Ops can cite the order of the Hon’ble Supreme Court before the learned District Forum if the notice is issued.

8.                          In these circumstances impugned order 04.02.2015 is set aside and the matter is remitted back to learned District Forum for further proceedings in accordance with the provisions of law. The complainant is directed to appear before learned District Forum on 02.08.2016. 

 

July, 01^st, 2016   Urvashi Agnihotri         R.K.Bishnoi                                               Member                            Judicial Member                                       Addl. Bench                  Addl.Bench