SAMIKSHA BHATTACHARYA,  MEMBER 

Today is fixed for passing necessary order.

Upon hearing the Ld. Advocate for the Appellant /Complainant (hereinafter referred to as ‘Complainant’) and on perusal of the record,  we  find that  the appeal has been filed within time. Let the appeal be admitted and registered.

The instant appeal has been directed by the Appellant/Complainant (hereinafter referred to as ‘Complainant’) challenging  the order no. 10 dated 27.09.2023 passed by the Ld. DCDRC, Additional District Disputes Redressal Commission,  Rajarhat, New  Town (hereinafter referred to as ‘the District Commission) .

The Ld. District Commission dismissed the case for non prosecution.

On the date of admission hearing, Ld. Advocate for the appellant/complainant  has submitted that the Ld. Advocate who was appearing on behalf of the Complainant before the Ld. District Commission failed to take necessary step and  did not appear on two consecutive dates which was beyond the knowledge of the complainant. On 27.09.2023, when the matter was called on, the junior  Advocate, Arijit Bera appeared on behalf of the complainant who was not the recorded  Advocate.

Due to disrupted bus service and unavoidable condition, the Ld. Recorded Advocate could not reach the Ld. District Commission when the matter was called for along with show cause petition supported by  affidavit.  The Ld. Junior Advocate appeared but the Ld. District Commission did not consider the inconvenience of the recorded Ld. Advocate.

On perusal of the record, we have observed that the Complainant did not take any step on 18.07.2023 and  was fixed for filing questionnaire by OPs as last chance. Neither of the parties was present, the Ld. District Commission has closed  the opportunity for filing questionnaire by OPs. Simultaneously, the Ld. District Commission  also directed the complainant to file the show cause on 27.09.2023 as  to why the instant  case  should not be dismissed for default for his absence. On 27.09.2023 the Ld. Recorded Advocate could not appear due to unavoidable circumstances and he has engaged his junior Advocate to file a  petition mentioning that recorded Advocate was ill on earlier date and as such the recorded Advocate  could not appear. Since the recorded Advocate  was not present on   18.07.2023, the Ld. District Commission not only closed the opportunity for filing questionnaire by OPs, the Ld. District Commission also directed the complainant to  file show cause though  that date  was not fixed for filing anything on behalf of the complainant as per earlier order.

Though the Ld.  Advocate for the Complainant was not regular in appearing before the Ld. District Commission we are   in the view that the litigant/Complainant should not  be suffered on the part of the mistake of his Ld. Advocate. Moreover, the reason for non-appearance  as given by the Complainant is due to non-appearance of his Ld. Lawyer.  There are several judgements passed by the Hon’ble Apex Court, Hon’ble National Commission and Hon’ble High Court where it was held that “ an innocent litigant should not suffer  for default of his chosen Advocate”.   In this connection, we can cite  the judgement passed in Smt. Lachi & Others –vs- Director of Land and Records & Others ( AIR  1984 SC 41 ). 

On perusal of the  record  and relying upon the judgment, we are in the view that  the complainant should be given an opportunity such that his case would be adjudicated on merit.  In this connection, we can  also cite  the judgment passed by Hon’ble Supreme Court in    Rafiq & Anr.  Vs Munshilal & Anr.  where Hon’ble Apex Court  has observed that “the disturbing feature of the case that under our present advisory legal system where the parties generally appear though their advocates, the obligation of the parties is to select his advocate, brief him,  and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court’s proceeding. After engaging lawyer,  the party may remain supremely confident that the lawyer will look after his interest at the time of hearing of the appeal ,  the personal appearance of the party is  not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the  High Court to inquire as to what is happening in the High Court with regard his appeal nor is he to act as a watch dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. .................what is the fault of the party who having done everything in his power  and expected of him, would suffer because of the default of his Advocate. The problem that agitates us is whether it is proper that the party should suffer for the  inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have not material for ascertaining that aspect of the matter.....................however,  we cannot be a party to an innocent party suffering injustice merely because of his chosen Advocate defaulted”.

Though the act stipulates a period  for disposing of a complaint  but the complaints cannot be disposed of  due to non-availability of resources and infrastructure. In this regard, we can cite the judgement passed by the Hon’ble Apex Court in Civil Appeal No. 4767 of 2019 (Vibha Bakhi Gokahle and Anr. Vs  M/S Gruhaship Constructions & Ors.) in which Hon’ble Apex Court has observed that “the ground for rejection of complaint is technical and in disregard of the requirement of the substantial justice”.  The Hon’ble court has also observed that “ it is harsh to penalise a bona fide litigant for marginal delays  that may occur in judicial process. The Consumer Fora  should bear this in mind  so that the ends of justice are not defeated”. In this case, though the delay was not marginal but in  the instant case   the complainant should be given an opportunity to contest the case as per law.

As per forgoing discussion we hold that it would be just and proper to give the complainant/appellant an opportunity to proceed with the case to ventilate his grievance. The complaint should not be dismissed for default   due to mere technical reason since C.P. Act is a beneficial legislature. In this connection, we can  also cite the judgement passed in Sanjay Kr. Gupta –vs-  Kebal Kishan Baran and Ors. reported in 2014(3) CPR 236 (NC) where the Hon’ble National Commission  held that Consumer Forum is primarily meant to provide protection to the  consumers and their claims cannot be defeated on technical ground.

Thus, the impugned Order  No. 10 dated 27.09.2023 is hereby  set aside.

The  District Commission  is directed to restore the complaint case being No. CC/270/2022  to  its original file and  number and  the Ld. District Commission is requested to proceed with the case as per law and dispose of the case preferably within two months without giving any unnecessary adjournments to either of the parties.

A caution is hereby given to the Appellant/Complainant to appear before the Ld. District Commission  diligently to conduct his case further.

Accordingly, we allow the appeal and set aside judgement/ order dated 27.09.2023  passed by Ld. District Commission for finality of litigation as well as to give better service to the consumer.

The Complainant/appellant is directed to serve the  notice upon the OPs/Respondents  for proper information  along with this order.

Fix 08.02.2024 for appearance of the parties before the Ld. District Commission for receiving further direction.

The complainant/appellant  is directed to file affidavit of service upon all the OPs/Respondents    before the concerned Ld. District Commission on the aforementioned  date.

Let a  copy of this order be sent  to the Ld.  Additional District Consumer Redressal Commission,  Rajarhat, New  Town.

Thus,  the Appeal is allowed and  disposed of, accordingly.