KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.83/2015

ORDER DATED: 02.09.2022

(Against the Order in C.C.No.229/2013 of CDRC, Kannur)

PRESENT:

REVISION PETITIONER/OPPOSITE PARTY

(by Adv. K. Dhanamjayan Nair)

Vs.

RESPONDENTS/COMPLAINANTS:

(by Adv. Unnikrishnan V.)

O R D E R

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

                The opposite party in C.C.No.229/2013 of the Consumer Disputes Redressal Forum, Kannur (in short the District Forum for short) has filed the Revision Petition against the order passed by the District Forum dated 09.07.2015, by which it was found that the complaint was maintainable and not barred by limitation.

          2.       The complainants have filed the complaint against the opposite party for compensation and costs.  The case of the complainant is that they have entrusted their vakalath and had given fees to the opposite party for appearance before the Munsiff’s Court, Kuthuparambu in OS 50/2002, as defendants 4 and 7.  The said suit was filed by one Balakrishnan for partition.  Due to acquaintance with said Balakrishnan the opposite party did not conduct/defend the case in a proper manner being a lawyer.   The opposite party received fees from the complainants during the pendency of the case but he failed to discharge his duty as a lawyer.  Thereafter, though the complainants entrusted the case to another counsel, due to laches on the part of the opposite party, they could not succeed in the case.  The complainant sustained heavy loss due to deficiency in service on the part of the opposite party.  It is stated by the complainants that they have filed the complaint within two years from the date on which they got the clear picture about the depth and nature of deficiency in service committed by the opposite party.

          3.       The opposite party appeared before the Forum and filed written version denying the allegations levelled against him in the complaint.  It is contended by the opposite party that although the complainants got the knowledge about the alleged deficiency in service from the part of the opposite party on 02.08.2010 itself, the complaint was filed only on 07.08.2013.  Hence there was a delay of more than one year.  No separate petition for condonation of delay under Section 24(A) of the Consumer Protection Act is filed.  Hence the complaint is to be dismissed.

          4.       The District Forum raised a preliminary issue regarding the maintainability of the complaint.  Both sides were heard.  After perusing the documents and hearing both sides the District Forum passed the impugned order rejecting the contention of the opposite party that the complaint was not maintainable as barred by limitation and found that the complaint was maintainable.  Aggrieved by the order passed by the District Forum the opposite party has filed the Revision Petition.

          5.       Heard both sides.  Perused the records.

          6.       Parties are referred according to their status/rank in the complaint.

          7.       The contention of the opposite party is that according to the complainants they got knowledge about the alleged deficiency in service from the opposite party on 02.08.2010 itself.  So the complainants ought to have filed the complaint within two years from that date.  But the complaint was filed only on 07.08.2013.  Hence there was a delay of more than one year.  No separate petition to condone the delay under Section 24(A) of the Consumer Protection Act was filed.  So the complaint is to be dismissed.  It is the case of the complainants that they got some doubt about the services provided by the opposite party on 02.08.2010 itself and they entrusted the case to another counsel also.  Though there was laches on the part of the opposite party in conducting the case they were waiting for the result of the suit for taking action against him.  Since the suit was decreed against the complainants, they had to prefer an appeal before the Appellate Court, which is pending.  It is stated by the complainants that immediately after the decree in the suit they approached many Advocates to evaluate the deficiency and laches committed by the opposite party in handling/conducting the case.  But none of them helped them for evaluating those matters or even for obtaining the certified copy of the documents from the court.  According to the complainants the clear picture about the gravity and nature of deficiency in service committed by the opposite party could be ascertained only after obtaining certified copies of the documents from the court and they got the certified copies on 18.06.2013.

          9.       It is the case of the complainants that they got information from the fifth defendant in OS 50/2002 of the Munsiff Court, Kuthuparambu that the case was listed for evidence to 02.08.2010 and they went to the office of the opposite party and enquired about that.  He gave evasive answers and he stated that if the complainants have no confidence in him they could take the case bundle from him.  It is stated by the complainants that they had obtained the case file from the opposite party and they had entrusted the case with Advocate Satheesh Babu.  He stated that the opposite party had not taken steps in the case which should have been taken before going for trial, evidence of the case and immediately certain steps have to be taken.  But he had not taken the details regarding the laches or omissions on the part of the opposite party.  It is stated by the complainants that they were not aware of the proceedings before the court.  So it can be seen that on 02.08.2010 the complainants got some doubt regarding the service provided by the opposite party and they entrusted the case file with another Advocate.  Though there were laches on the part of the opposite party for conducting the case, the complainants were waiting for the result of the suit for taking action against him.  According to the complainants they were ready to suffer/forgive the deficiency in service on the part of the opposite party, if they had succeeded in the suit.  Immediately after the result of the suit they had to entrust his counsel for filing appeal within the specified period and only thereafter they could concentrate to obtain advice and necessary documents to proceed against the opposite party.  It is the case of the complainants that they had approached several Advocates to evaluate the laches or deficiency on the part of the opposite party in handling/conducting the case but none of them helped him for that or even for obtaining the certified copy of the documents from the court.  As observed by the District Forum, since the complaint is against a practicing lawyer of the bar, alleging deficiency in service against him, naturally the complainants may not get expected co-operation from the members of the Bar.  In these circumstances the statement of the complainants that they did not get expected co-operation from the advocates for evaluating the laches/deficiency of the opposite party and obtaining certified copy of the documents from the court cannot be considered as baseless.  It is the case of the complainants that they got a clear picture about the gravity and the nature of deficiency in service committed by the opposite party only after obtaining certified copy of the documents from the court.  In Hemalatha Lodi Vs. M/s Amit Colonizors 2022 (2) CPR 489 (NC) it was held by the National Commission that the aspects relating to the initiation of cause of action and its demise, both are essentially questions of fact and shall vary from case to case in the light of the specialties of the of the particular case.  From the facts and circumstances of the case it can be seen that there is basis for the statements of the complainants that though on 02.08.2010 they had some doubt regarding the service provided by the opposite party they got a clear picture of the gravity of the laches and deficiency in service of the opposite party only later, after obtaining certified copies of the documents from the court on 18.06.2013.  So the contention of the opposite party that the complaint was barred by limitation since the complaint was not filed within two years from 02.08.2010 is not sustainable.  Further in the complaints it is stated by the complainants that before the mediators the opposite party agreed that because of his laches in conducting the case loss occurred to the complainants and he was ready to pay compensation for that.  But even after repeated demands the opposite party did not pay any amount to them.  The complainants have produced the agreement alleged to have executed by the opposite party in their favour on 10.08.2012.  The District Forum observed that the contents of the said agreement also support the case of the complainants while considering the issue of maintainability, on the ground that the complaint was barred by limitation.  The counsel for the Revision Petitioner/opposite party denied the execution of the alleged agreement dated 10.08.2012, by the opposite party.  That is a matter to be considered after taking evidence.  In Ramesh B. Desai Vs. Bipin Vadilal Mehta and others (AIR) 2006 SCC 3672 the Hon’ble Apex Court held/observed that the question of limitation is a mixed issue of law and fact and suit cannot be thrown at preliminary stage, as being barred by limitation.  In considering the question of limitation a liberal approach shall be taken (Kumaradasan Nair J. Vs. IRIC, AIR (2009) SCC 1333).

          10.     Considering the facts and circumstances of the case and the documents produced by the complainants, the District Forum came to the conclusion that the complaint was maintainable and was not barred by limitation.  We are satisfied that there is no illegality, material irregularity or jurisdictional error in the order passed by the District Forum, which warrants interference by this Commission in exercise of revisional jurisdiction.  So, the Revision Petition is liable to be dismissed.

          In the result, the Revision Petition is dismissed.  Parties are directed to suffer their respective costs.

          Send back the records forthwith.

SL