Karnataka

StateCommission

A/2549/2011

Sri. H.C. Rangaswamy - Complainant(s)

Versus

Ramesh - Opp.Party(s)

Sri. Sathyanarayana

20 Jul 2021

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 20^TH DAY OF JULY 2021

 

 

PRESENT

 

MR. KRISHNAMURTHY B. SANGANNAVAR      : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Appeal No. 2549/2011

1.  Sri. H.C. Rangaswamy      S/o. Late Channakeshavaiah      Since deceased by LRs Smt. Nagarathna H.R. D/o. Late H.C. Rangaswamy Satyanarayana H.R.   V/s	..…Appellants
Ramesh,  S/o. Late K. Anantha Ramaiah Advocate Resident of 'Akkare', Panchama Circle Adjacent to Manjunatha Kalyana Mantapa SJP Road, Hassan 573201 (By Sri. Sriram)	……Respondent

O R D E R

 

Mr. KRISHNAMURTHY B. SANGANNAVAR, JUDICIAL MEMBER

 

This is an appeal filed by the complainants in Consumer Complaint No.58/2009 aggrieved by the order dated 27.07.2011 passed by the District Consumer Disputes Redressal Forum, Hassan (for short District Forum).

2. The brief facts of the case are: the OP is a practicing advocate for the past 22 years known to the family of complainants.  The complainant Nos.1 & 2 are father and son, while complainant No. 3 is wife of first complainant.  First complainant died during pendency of the appeal and his LRs are brought on record as right to sue OP survives.  These complainants availed legal service of OP during 2006 and in this regard certain cases were filed before criminal law court and civil court, Hassan.  These complainants alleged that in order to avail legal service of OP have paid Rs.77,750/- and they raised consumer complaint against OP, for lack of efficient legal service on his part under Section 12 of the Consumer Protection Act on 04.04.2009 seeking refund of the legal fee paid to him amounting to Rs.77,750/- and sought for compensation of Rs.15,72,750/- as special and general damages for deficiency in service of legal service.
3. This was resisted by OP and the forum below held an enquiry receiving evidence of PW 1 to 3, Ex.P1 to P24 and Ex.R1 to R25, thereby recorded a negative finding on the point of deficiency in service on the part of OP and  dismissed the complaint which is impugned here in this appeal, on the grounds that the forum below has erred in dismissing the complaint without appreciating the evidence, documents, circumstances and materials placed before it and the same is purely based on erroneous inference and conjectures and not based on the facts, pleadings, evidence of the parties and circumstances of the case. 
4. We heard Learned Counsel for appellants and respondent.  Now, we have to decide whether impugned order passed by District Forum dated 27.07.2011 is contrary to facts and law is liable to be set aside for the grounds set out in the appeal filed by the complainants?
5. The consumer complaint is raised on 04.04.2009 by complainants who are husband, wife and their son.  They availed the legal service of OP who as per their pleadings known to their family.  As could be seen from the cause title of the complaint, is arrayed as  an advocate, aged 50 years of Hassan.   The dispute for which the legal service of OP has been availed by complainants was in respect of a site and house measuring 9 X 12 mts. situated at Guddenahally village now called as Vijayanagar extension at Hassan tq., Hassan Dist.  In this regard Mr. H.C. Rangaswamy/ deceased complainant, to file a civil suit and the OP has filed  OS No.38/2006 on the file of court of civil judge at Hassan.  In this suit the relief sought was   for grant of bare injunction restraining defendants from interfering with costs and compensation.  The cause of action to file such suit arose for the complainants, when all the defendants try to enter upon the suit schedule property with an intension to knockoff on 18.02.2006.  Here we have to see that dispute in respect of this property raised by deceased/first complainant is not against third parties or strangers, but, against his children and their wives.  In this regard these parties go to the extent of lodging complaint on complaint to police and presented private complaint on the file of court Civil Judge and JMFC, Hassan.  It is found from evidence on record placed before the Forum below about registration of C.C.41/2006 against accused No. 1 to 6 who are none other complainants and other members of their family.  It is not in dispute that they availed legal service of OP. Initially they availed service for the civil remedies and later on remedies under criminal law, besides, seeking bail orders from court of principal session judge at Hassan, under Section 438 as well as 439 of Cr.PC.  In our view any of the result of such cases whether positive or negative could not be attributed to OP Advocate, since they are subject to be scrutiny by the higher courts unless proved otherwise as to the negligence either in drafting or giving consent to pass orders in favour of the opposite parties before the court of law without obtaining written instructions from clients. 
6. It is found from the records that the complainants herein during the course of enquiry before forum below have placed copy of the complaint under PCR. 1/2006, B report thereon, copies of pleadings, the order sheet and orders passed by the courts, copy of complaint in O.S.No.41/2006, evidence recorded in those cases, which could not be appreciated either by the forum below or by us in this appeal, since, parties to these proceedings are none other members of the family of complainants and they are agitating to exercise their rights over certain properties and if for any reasons or for the reasons recorded by the courts either in civil or criminal cases recorded either against the complainants or otherwise, are not the final orders and they are subjected to be questioned before the higher courts for judicial scrutiny and for which OP cannot be held responsible for deficiency in service on his part, since, we did not find a second legal opinion placed on record before forum below by complainants to show that the OP / advocate was failed to render his legal service in accordance with law at the relevant time while drafting civil case and complainant case before the court of JMFC, Hassan. It has to be observed herein that if complainants aggrieved by the orders of the criminal law courts and civil court in the cases mentioned by them, represented by OP, would have preferred an MA/RA/criminal petition/revision as the case may be, since such findings are not reached to finality.  In our view normally the courts pass orders on the basis of materials placed by parties and in appreciation of facts and application of law use to render orders or judgments as the case may be,  as such if aggrieved by such  orders passed by such courts, complainants could have preferred an appeal and if in appeal filed by them, record a finding against OP that he was not properly conducted the case and failed to render  legal services to the complainants, then only complainants would contend  as to his failure to render legal services to them.
7.  However, here in this case, although we could see voluminous records, could not find as to deficient service of OP in these matters.  If in PCR case, concerned police have submitted ‘B’ report, the remedy would be to file a protest petition and placed believable evidence and to convince the court JMFC to establish that their complaint allegations amounts to commission of cognizable offences said to have been committed by accused and the report is  unacceptable and a case has to be registered or requires further investigation. If for any reasons such PCR came to be dismissed, OP/advocate could not be held responsible, since, his role in such matter is very limited. Whether there is a prima-facie case to go into the matter alleged by the complainant or not, is left to the sound discretionary powers of JMFC and they are guided by certain legal principles laid down by the higher courts.  If such a discretionary power was not exercised by the JMFC, for which OP/advocate could not be held responsible.
8. The next important point to be make mention herein that DC appeal No.3/2009 initiated against OP by the Disciplinary Committee of Bar Council of India on 23.07.2010 at Page No. 8 it was held:

“There is no documentary evidence about payment to the respondent – that too on different counts as alleged in the complaint.  On the contrary, the conduct of respondent in returning the brief and the amount of rs.3,000/- along with letter and copies of cases filed by him appears to be certified copies of complaints and proceedings/ orders of the court Ex.P/1 to P/12 show that the respondent has filed the cases and P.C.R. on behalf of the complainant, the allegation that, the respondent could not be able to get injunction and on the contrary the wife obtained injunction in her case, this does not amount that there was any collusion between the respondent, and the opposite party/ wife of the complainant.  After all, granting of injunction or refusing of injunction is the absolute discretion of the court based on the strength of pleadings and documents of each case.  If the court refuses to grant injunction, the advocate cannot be blamed.  This is also a very funny allegation that because on the first date of hearing of the injunction matter filed by the complainant against the wife, without notice thereof, the advocate for the opposite party appeared and sought time for reply; and the court granted time to him.  There is no bar that the opposite party cannot appear suomoto without notice to oppose the injunction.  If the opposite party appeared without notice suomoto on the first date of hearing, there is no reason to doubt the integrity of the counsel by his own party for such an incident.  The conduct of the respondent in returning the brief immediately and also sending the amount of Rs.3,000/- by draft shows his bonafideness.  It appears that the respondent has been found certainly to be negligent or lethargic in filing the suit for injunction little belatedly, not immediately.  The learned Disciplinary Committee of the State Bar Council of Karnataka with an elaborate order discussing all the aspects of the matter has rightly dismissed the complaint and also by looking into the negligence of the respondent warned him to be careful in future.  No interference is called for in the impugned order passed by the Disciplinary Committee of the Bar Council of Karnataka.  Accordingly, the appeal is dismissed with no order as to costs.”

9. Thus, from the above order, viewed from any angle nowhere found that OP/ advocate was colluded with the opposite parties in the said suit, except that he was little late in filing the suit, for which he cannot be attributed that he was colluded with the opposite parties in the cases for which his legal service was availed by the complainants. In this regard at the very outset it was mentioned that the opposite parties are none other members of the family in one or the other way. No doubt the Disciplinary Committee of Karnataka Bar Council by order dated 23.11.2008 warned OP to be careful in future only for the lapse on his part in filing the vakalath and filing of affidavit and appearing for the OPs in a casual manner which itself is not a strong ground to believe that Rs.77,750/- was paid to him by complainants towards fees only by drawing inferences when it is not made out from cogent evidence.  It is found from evidence about returning of Rs.3000/- by way of DD in favour of deceased first complainant, which itself is not a strong ground to conclude  that they have paid Rs.77,750/- and the OP was deficient in  extending legal services up to their mark.
10.  As already stated above complainants have failed to place a second legal opinion on all the legal services rendered by OP to hold that he was deficient in extending legal services to the complainants in accordance with law.
11. In view of the above discussion, since complainants entrusted their case to OP to file suit for injunction to restrain their daughter- in-law entering into house and if for any reason suit came to be filed little late may be after one month, by then she had knowledge of the suit, entered appearance, contested the case, as such ad-interim injunction was not granted for which OP cannot be held deficient in rendering legal service as alleged by the complainants.  It is to be noted herein granting of ex-parte TI, directing parties to maintain status-quo and granting of temporary injunction after hearing parties would be passed not by playing of tricks or strategy, but, on the prima-facie making out of a case and to show the comparative hardship for non granting of T.I. and the court to see in whose favour the balance of convenience is tilting. In so far as submission of ‘B’ report is concern, again the domain of police powers and acceptance of such report is the domain of court concerned, for which OP/advocate cannot be held responsible.  In this regard upon going through the impugned order, we could not find any reasons that Forum below has failed to appreciate the materials placed on record by parties to the complaint. 
12. Thus, from the above discussions, in all probabilities of the case the order of dismissal of complaint cannot be said contrary to facts and law and does not call for any interference in this appeal on any of the grounds set out in the appeal.
13. Accordingly, we proceed to dismiss the appeal filed under Section 15 of the Consumer Protection Act, 1986.  Consequently, confirm the impugned order dated 27.07.2011 passed in C.C.No.58/2009 by the District Consumer Disputes Redressal Forum, Hassan.

 

JUDICIAL MEMBER

 

 

MEMBER

CV*