BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 129 of 2014
Date of Institution : 09.09.2014
Date of Decision : 21.9.2016
Sh. Madan Lal son of Shri Babu Ram, aged about 70 years, resident of Mandi Kalanwali, Tehsil and District Sirsa.
……Complainant.
Versus.
Sh. R.P. Jindal, Advocate, District Court Complex, Sirsa, District Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA……………………….PRESIDENT
SHRI RANBIR SINGH PANGHAL……MEMBER.
Present: Sh. Yadwinder Singh, Advocate for the complainant.
Sh. R.P. Jindal, Advocate/ opposite party in person.
ORDER
In brief the case of the complainant is that complainant engaged the opposite party as his counsel for filing a complaint under Section 12 of the Consumer Protection Act, 1986 against State of Haryana through Collector Sirsa and others. The said complaint was filed in the year 2007. The complainant paid legal fee to the opposite party as per settlement between them and it was told by the op that the complainant need not to appear in the court on each and every date of hearing as the matter is civil in nature and thus, no presence is required on each and every date of hearings. The op also asked the complainant that he will be intimated if his presence is required or any order is passed in the said complaint. During the pendency of the said complaint, the complainant had visited the opposite party two/ three times to know about the fate of his case. However, the said complaint of the complainant was dismissed vide order dated 2.12.2010 for want of prosecution as the op did not appear in the said case when the case was called several times and even the case was called after lunch, but the op did not appear in the said complaint. It is a matter of great surprise that op did not inform the complainant regarding dismissal of the complaint. It is further averred that after some times, the complainant visited the complainant to know about the fate of his case and the op told him that said case has been dismissed and when the complainant enquired as to how the case was dismissed, the op replied that there is no cause to worry and a simple application for restoration of the said case is to be filed and the case would be restored in its original stage. The complainant again believed the version of op and filed application for restoration of the case, but said application was also dismissed vide order dated 8.5.2012 but no intimation was given to the complainant in this regard and it is the complainant who visited the court complex after some time and came to know about the dismissal of the application. In fact, the opposite party was fully aware of the fact that the said application was not at all maintainable in the Forum. The complainant also filed an appeal against the said order before the Hon’ble Consumer Disputes Redressal Commission, Haryana, Panchkula but that has also been dismissed vide order dated 18.10.2012. The act and conduct of op amounts to professional misconduct due to which the complainant has suffered harassment and mental tension and also suffered financial loss and as such he is entitled to compensation to the tune of Rs.10 lacs from the opposite party. The complainant approached and request the op to pay said amount but op did not listen him. He also got served a legal notice upon op on 6.2.2014 but to no effect. Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written statement taking certain preliminary objections regarding maintainability; cause of action; suppression of material facts; limitation and jurisdiction etc. It has also been submitted that complainant is estopped by his own act and conduct, rather he is guilty of lowering the prestige of the opposite party for which he is liable to be prosecuted. On merits, it has been submitted that op remained the counsel for the complainant but no legal fee has ever been charged due to some relationship. The evidence was submitted and the documents were exhibited in that complaint and in one another complaint of similar nature and the cases were fixed for evidence of opposite parties for 27.10.2010, but the complaints were adjourned on that date for want of evidence of the respondent in that case. As per procedure adopted by the Forums for taking evidence of the parties under provisions of the Act, no cross-examination of witnesses are done and simple affidavit is tendered and exhibited and therefore, immediate presence of other counsel at that time was thus not required. The op never directed the complainant not to appear before the Forum on each and every date rather on the date of filing evidence, he was called through telephonic call and directed him to attend the proceeding so that he may incur expenses of day to day proceedings of the litigation but he remained carefree due to relationship, inspite of written agreement in the shape of Vakalatnama. The complaint was dismissed in routine on 2.12.2010, though the Clerk of the op twice went to the Reader of the Forum to inquire about the next date but he was told that the date shall be given only after evidence of respondent as it was fixed for the evidence of opposite party but at about 4.00 p.m. when present opposite party went to the Forum he was told that complaint was dismissed in default. The Learned Presiding Officer directed him to file simple application for restoration of the complaint and op filed the application on next morning i.e. on 3.12.2010 for restoration of complaint which remained pending for long time due to non appearance of counsel of respondent of that cases and thereafter relying upon the observations of the Hon’ble Supreme Court, the application was dismissed. At that time, the complainant was also present and he was told immediately regarding the reasons of dismissal of the application and was advised to get the complaint restored according to law, but he did not follow the advise of the op and filed an appeal before the Hon’ble State Commission with the delay of 114 days which was also dismissed. Other contents of the complaint have also been denied and prayer for dismissal of complaint has been made.
3. The complainant has tendered in evidence his affidavit Ex.C1 and documents Ex.C2 to Ex.C8. On the other hand, the opposite party has tendered in evidence his affidavit Ex.R1 and documents Ex.R2 to Ex.R5.
4. Heard. Learned counsel for the complainant reiterated the averments of the complaint whereas learned counsel for opposite party reiterated the averments of the written statement. Written arguments reiterating the facts of reply have also been submitted on behalf of opposite party and in support, he has also relied upon observations of Hon’ble Punjab and Haryana High Court in case titled as Vijay B. Verma Versus Ludhiana Oil Expellers Cooperative House Building Society and others, 2016 (1) PLR 823.
5. We have considered the rival contentions of both the parties. Admittedly the complaint of the complainant filed against State of Haryana and others was dismissed in default on 2.12.2010 for want of prosecution. The opposite party claims that he filed application for restoration of the complaint on the next day i.e. on 3.12.2010 but that application remained pending for long time due to non appearance of counsel of opposite party of that case and in the mean time, the law was settled by the Hon’ble Supreme Court in year 2011 that District Consumer Forums or State Commission have no power to set aside their own ex-parte orders and this power vests in National Commission only. In view of the said law, the application for restoration of the complaint was dismissed on 8.5.2012.
6. From the above referred factual position and pleadings of the parties, two important questions arises whether the present complaint has been filed within limitation period and whether opposite party caused any deficiency in service on his part towards the complainant or not? The answers of both the questions are in negative. The complaint in question of the complainant was dismissed in default on 2.12.2010 whereas present complaint has been filed only on 9.9.2014 i.e. after a gap of more than three years and nine months i.e. beyond the period of limitation of two years. The Legislative prescribed the limitation to file a consumer complaint settled under Section 24-A of the Consumer Protection Act, 1986. In Section 24-A, it is clearly mentioned that (1) “The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen”.
7. In so far as deficiency of the opposite party is concerned, the complainant has failed to prove on record that opposite party intentionally did not appear before this Forum rather the opposite party came to know about dismissal of the complaint on 2.12.2010 itself and then he filed the application for restoration of the complaint on the next day i.e. 3.12.2010. It is proved that opposite party was vigilant about the case of the complainant and after coming to know about dismissal of the complaint on 2.12.2010 he immediately filed the application for restoration of the complaint. Moreover, in the agreement in the shape of Vakalatnama, it is undertaken by a client that “I/We or my our duly authorized agent would appear in court on all hearings and will inform the Advocate for appearance, when the case is called.” So, the complainant cannot contend that opposite party himself told him not to appear in the court on each and every date of hearing. Admittedly, the case of the complainant was fixed for evidence of the opposite party of that case and there was every necessity of the complainant to be present in the Forum. The Lawyers provide only legal assistance to their clients and not service. So, in our view the opposite party cannot be considered at fault in this regard.
8. Thus, as a sequel to our above discussion, the complaint is time barred and even lacks merit and same is hereby dismissed but with no order as to costs. Copy of this order be supplied to the parties as per rules. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated:21.9.2016 District Consumer Disputes
Redressal Forum, Sirsa.
Member.
