Per Justice S.B.Mhase, Hon’ble President:

        Heard Adv.Mr.S.N.Sawant for appellant.

        This is a delay condonation application to condone the delay of 137 days in filing the appeal.  However, the appellant has contended that there was no delay.  He states that earlier appeal was filed on 19/01/2009 and it was within time.  That was sent by courier.  After the receipt of said appeal objections were raised and those objections were communicated to the appellant and appellant has complied with those objections.  We have verified that appeal has been filed on 19/01/2009, however, it was not accompanied with the 50% amount as per provisions of Section 15 of Consumer Protection Act, 1986.  There were another objections also.  All those objections were complied with and thereafter, the appeal is placed before State Commission.  However, by way of abundant precaution application is made for condonation of delay.  Since we find that there is no delay, with an observation that appeal is filed within limitation, we condoned the delay.

        We immediately heard the appeal for admission.

        This appeal takes exception to an order passed by District Consumer Disputes Redressal Forum, Kolhapur passed on 16/12/2008 in consumer complaint no.368/2008.  This is an appeal by the original complainant.  The respondent is an original opp.party.  This complaint has been filed for deficiency in service on part of an advocate.  A decision in respect of as to whether an Advocate is a service provider is pending before Apex Court.  However, we need not wait for decision of said case because on facts of case the appeal can be disposed of at the stage of admission.

        The appellant has engaged services of respondent advocate.  The advocate is practicing at Kolhapur since last 23 years.  Appellant was a wife of one Mr.R.P.Deshpande.  The relations of husband and wife were strained and therefore, appellant approached the respondent-advocate for legal proceedings.  After consultation, the respondent had filed two proceedings on behalf of appellant.  A petition under Section 13 of Hindu Marriage Act, 1954 was filed on behalf of appellant seeking divorce from the husband of the appellant on ground of desertion.  The said decree has been passed and divorce has been granted.  Against the said decree of divorce the husband of the appellant has not preferred any appeal.  Therefore, as per requirement and prayers of the appellant, the decree has been obtained by the appellant and therefore, services as desired has been rendered.  The ground for deficiency in service in respect of these proceedings raised by the appeellant is that her husband was having adulterous relations with another lady and that ground was not raised in the divorce petition in spite of the fact that instructions to that effect were given.  Such contention has no merits because after marriage petition is drafted, it is required to be verified by the appellant and appellant has verified the said petition.  Appellant is admittedly an educated lady and as per the statement made in the proceedings she had completed her education up to first year of L.L.B.  Therefore, while making the verification it was supposed that she has read the marriage petition and thereafter, verified it.  At the time of verification if she found that said ground of adultery is not raised, she should have insisted for inclusion of such ground and thereafter, should have verified the petition.  However, the fact will have to be inferred that she has signed the verification after reading the petition and she was satisfied with the pleadings made in the petition.  There could be several reasons for not including the ground of adultery in the petition.  We need not to go into those reasons.

  What we find that since verification has been singed by the appellant, the appellant was aware of the fact that said ground was not included in the petition and therefore, if she was desirous of inclusion of such ground, she should have insisted for the same.  Non-insistence on the part of appellant leads to an inference that she was not desirous of raising such ground for purpose of divorce.

        The another case which was filed on behalf of appellant is a regular criminal case no.07/2006.  It was filed with Judicial Magistrat, First Class and it is a case under Section 497, namely, for adultery committed by the husband of the appellant.  Therefore, it appears that in 2006 said complaint was filed.  At that time the appellant was aware that this is an additional ground available to her.  The decree in Hindu Marriage Petition was passed on 12/01/2007.  Therefore, prior to said date when marriage petition was pending, it would have been possible for the appellant to insist the respondent-advocate to add said ground in the marriage petition by way of amendment.  Even that has not been done by the appellant.  In the result non-raising of ground of adultery in the marriage petition for divorce is not deficiency in service in the facts and circumstance of case.

        It is further interesing to note that criminal case no.07/2006 filed for adultery was also withdrawn by the complainant and accordingly Ld.Counsel for the appellant made a statement before State Commission on being asked as what happened to criminal case.  Therefore, what we find at a subsequent stage also said ground of adultery was not pressed.  Ld.Counsel for the appellant submitted that said criminal case was required to withdrawn because the other lady with whom the husband of appellant had adulterous relations is not made accused. It is to be noted that a offence committed by husband as against his wife.  The other ladey can be aa aacused in such case.  Therefore,she was not rightly made accused.  Therefore, the ground made out that case was required to be withdrawn because other lady was not made party to the criminal case and therefore, that case was withdrawn and thus, it amounts to deficiency in service is without any merit.

        What we find from the facts of the case and admitted facts stated above that there is no deficiency in service on the part of respondent.  The case has been rightly decided by the District Consumer Disputes Redressal Forum. It is hereby rejected.  Hence, we pass the following order:-

                                        :-ORDER-:

1.           Appeal stands rejected.

2.           No order as to costs.

3.           Dictated on dais.

4.           Copies of the order herein be furnished to the parties as per rules.