Haryana

Panchkula

CC/366/2022

KANWAR SUNIL SINGH - Complainant(s)

Versus

SH JASWANT SINGH - Opp.Party(s)

IN PERSON

19 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

 

                                                       

Consumer Complaint No	:	366 of 2022
Date of Institution	:	29.11.2022
Date of Decision	:	19.12.2022

                                                                           

 

Kanwar Sunil Singh, R/o #227, Sector-25, Panchkula.

 

                                                                              ….Complainant

Versus

 

Sh.Jaswant Singh Advocate, Seat No.19, District Courts Complex, Sector-1, Panchkula.

Residence Address: House No.364, Sector-2, Near Regulatory end Sukhna Lake. Mansa Devi Complex, Panchkula.

                                                                  ….Opposite Party

COMPLAINT UNDER SECTION 35  OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

                        Dr.Pawan Kumar Saini, Member.

                        Dr.Sushma Garg, Member.

 

 

For the Parties:   Complainant in person.          

ORDER

(Satpal, President)

 

1.             Today the case is fixed for consideration on its admissibility. Briefly stated, the facts of the case are that the complainant had engaged Sh. Jaswant Singh Advocate, by paying the fee of Rs.20,000/- on 20.08.2018 vide SBI cheque no.107212 for appearing  and pursuing his on-going case no.COM1/1025 in the court of ACJM, Panchkula. In addition to fee of Rs.20,000/-, some cash payments were also made as demanded by the counsel for filing  of application seeking exemption of the complainant from his personal appearance in the court. It is stated that the complainant was residing in Jam Nagar, Gujarat and had to come to Panchkula only for the purpose of appearing in the Court. The case was pending for decision in the court on account of frequent adjournments. On 12.03.2021, he had filed an application in the Hon’ble Court to decide the said complaint on merits as his appearance in the Court was costing him heavy in term of money, time and travel as Jam Nagar is situated at a distance of 1400km from Panchkula. After the submission of said application, there was left hardly any job for him and his Advocate except to put the appearance in the court requesting for early decision. It is stated that he was shocked to read the interim order dated 11.03.2022 passed by the learned court in the said case, wherein his advocate Sh.Jaswant Singh by making the false statement had stated that the complainant had shifted to Dubai from Gujarat and was not interested to pursue the case further. Thereafter, he talked to his advocate on phone and sent an email on 20.03.2022 asking him to withdraw or get modified his statement given by him, on next date of hearing i.e. on 29.03.2022 as the false statement was likely to affect his case adversely but his Advocate did not appear in the Court on 29.03.2022. It is further stated that he sent an email on 23.03.2022 to the District & Session Judge, Panchkula about making of the false statement by his Advocate. On 25.03.2022, he asked his Advocate to submit additional written arguments in the Court, which were sent to him through registered post on 30.03.2021 but he did not give any reply to it. Thereafter, the said Advocate sent an email on 26.03.2022 to him (complainant) asking him to attend the Court on 29.03.2022 for his cross-examination. It is stated that the conduct of the Advocate asking for his cross examination was absurd as request for cross-examination should have come from the accused or the Court. It is further stated that the cross-examination was totally unwarranted in view of the fact that Hon’ble Court had already been requested to decide his case on pure merits. It is further stated that there was no mention for cross examination etc in the interim order dated 11.03.2022. It is further stated that the he had asked his Advocate vide email dated 28.03.2022 as to how his cross examination could be conducted in the absence of the OP’s Advocate but his Advocate insisted him(complainant) to attend the Court and in this regard, he(Advocate) sent another email on 28.03.2022. It is further alleged that he had informed his counsel that it was not possible for him to come to Panchkula on short notice and thus requested him for the Court order to be passed on 29.03.2022. It is alleged that his advocate was trying to mis-inform, misguide and harass him financially and finding excuses not to pursue his case and finally, he refused to appear in his case on 29.03.2022 and sent him email in this regard on 29.03.2022 itself. It is alleged that his counsel was trying to misguide and pressurise him to withdraw his criminal complaint. Due to the making of false statement in the Court by his counsel on 11.03.2022, his non appearance on 29.03.2022 and his conduct and behavior pressurising him to withdraw the case, he(complainant) sent to him (Advocate) notice through email on 11.07.2022 requesting him to return his fees but he has neither replied to the said notice nor refunded the fees. Due to the act and conduct of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             In support of his contentions, the complainant while filing the complaint has annexed some documents as Annexure C-1 to C-13 with the complaint. Today, the complainant has placed on record, the copy of criminal complaint filed by him in the court of ACJM, Panchkula, the photocopy of Vakalanama, copy of email dated 08.03.2021, which are taken on record as Annexure C-14, C-15 & C-16 respectively.

3.             We have heard the complainant and gone through the record carefully and minutely.

4.             During arguments, the complainant, while reiterating the averments made in the complaint, has alleged negligence, lapses and deficiencies on the part of his counsel, namely, Sh.Jaswant Singh, Advocate, who has been impleaded as OP in the present case, on the following counts:-

i.      That Sh.Jaswant, Singh, Advocate as engaged by him in the      criminal case pending in the court of ACJM, Panchkula was   pressurising him to withdraw the criminal complaint.

ii.      That the said advocate made a false statement in the court of   ACJM, Panchkula on 11.03.2022 that the complainant had shifted    to Dubai from Gujarat.

iii.     That the said Advocate did not appear in the said  criminal        complaint pending in the court of Sh. Hitesh Garg, ACJM,        Panchkula on 29.03.2022.

        The complainant vehemently contended that making of a false statement by his counsel was likely to make adverse effect on the     out-come of the criminal complaint and that his conduct and      behavior, while pursuing the complaint, was neither proper nor    justified as he was interested in the amicable settlement of the dispute or withdrawal of the criminal complaint and thus,         admission of the complaint has been prayed by issuing notice to   the OP.

5.             Before proceeding to examine the merits of the present complaint, it is necessary to mention here that the complainant has to establish that a good prima facie case exists in his favour. As per Section 36(2)of the CP Act, the District Commission, at the stage of the admission of a complaint, has to look into the fact whether the complaint as supported with documentary evidence enclosed with it, is fit for admission or not. It is correct that the documentary evidence annexed with the complaint is not to be evaluated in golden scale at this stage but the existence of a good prima facie case, based on adequate, cogent and credible documentary evidence, in favour of the complainant has to be shown.

6.             Now, we advert to the facts of the present case, wherein it is found that Sh.Jaswant Singh, Advocate was engaged by the complainant on 20.04.2015 as per Vakalatnama(Annexure C-15) to pursue the criminal complaint (Annexure C-14). As per order dated 11.03.2022 (Annexure C-3), it is also evident that the said advocate had informed the learned court of Sh.Hitesh Garg, ACJM, Panchkula that as per his information, the complainant i.e. Sh.Kanwar Sunil Singh has shifted to Dubai from Gujarat. We need not to look into the genuineness of above statement as the criminal complaint is still pending adjudication in the court of ACJM, Panchkula. The apprehension of the complainant that the aforesaid statement made by his counsel about his shifting to Dubai from Gujarat was likely to have an adverse impact on the out-come of the criminal complaint, is totally unfounded and baseless and just a figment of his imagination because the said complaint is still pending adjudication in the Court of ACJM, Panchkula. At this juncture, it is pertinent to mention here that on the basis of alleged statement in the court of ACJM, Panchkula, the complaint was neither got dismissed nor withdrawn.

7.             In so far as the grievance of the complainant qua the conduct of his counsel asking him to withdraw the criminal complaint is concerned, no evidence has been adduced, much less adequate, cogent and credible, by the complaint to substantiate his version that the OP was pressurising him to settle the dispute amicably or withdraw the same. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

8.             Regarding the grievance of the complainant qua the non appearance of Advocate on 29.03.2022, it is pertinent to mention here that the said Advocate had asked the present complainant, being complainant in the criminal complaint and witness, to attend the court vide his email dated 26.03.2022. The complainant was further asked by the said advocate vide his email dated 28.03.2022 that as per law, his presence was required and if he attends the court, he would explain his case in a better way. The complainant as per said email was duly informed that an application seeking his exemption from personal appearance in the court would not be filed. On 29.03.2022 at 01:24 P.M., the said advocate again informed the complainant vide email (Annexure C-11) that he could not file the application seeking his exemption from personal appearance because he was not aware about his location. The aforesaid facts clearly indicate that the said counsel was in constant touch with the complainant and was asking the complainant to attend the court as he was not able to file the application seeking exemption of the complainant from appearance as he was not aware about location of the complainant. Thus, we find no negligence, lapses or deficiency on the part of the said advocate. A Perusal of the order dated 29.03.2022 reveals that the exemption of the complainant was continuously sought on behalf of the complainant. After the receipt of email dated 29.03.2022 as sent by the said advocate to the complainant, the complainant ought to have send his location by way of an affidavit, duly attested by some Magistrate or Competent Authority at Jam Nagar, Gujarat, so as to enable the said Advocate to file the application on his behalf seeking his exemption from the court but complainant preferred not to share his location in an authenticated manner.

9.             At this stage, we turn to the definition of deficiency, which has been defined in 2(11) of Consumer Protection, Act as under:-

        “deficiency” means any fault, imperfection, shortcoming inadequacy in the      quality, nature and manner of performance which is required  to be maintained       by or under any law for the time being in force or has been undertaken to be        performed by a person in pursuance of a contract of otherwise in relation to any           service and includes:-

1. Any act of negligence or omission or commission by such person which causes  loss or injury  to the consumer; and
2. Deliberate withholding of relevant information by such person to the consumer.

 

10.            The above narrated facts do not reveal any kind of negligence, lapses or deficiencies on the part of said Advocate. In our considered opinion, the said Advocate has not deviated from the acceptable norms and thus, has caused no harm or loss to the complainant.

 11.           Furthermore, it is pertinent to mention here that as per Vakalatnama(Power of attorney) Annexure C-15, the complainant had authorized the said advocate to withdraw or make compromise  in the said case. Further, the complainant as per provision contained in the Vakalatnama(Annexure C-15), had undertaken not to hold the advocate responsible for the result of said case, in case of his absence from the court. Further, the vakalatnama is silent qua the fee, which was to be paid in the said case. There is no indication in the said vakalatnama that the counsel fee, amounting to Rs.20,000/- was the total fee or part payment.

12.            In the back drop of above narrated facts, we find no force and substance in the version of the complainant warranting issuance of notice to the OP. It is well settled that the complainant has to make out a good prima facie case in support of his contention at the stage of admission of the complaint; hence, the present complaint deserves to be dismissed and the same is hereby dismissed in limine with no order as to costs. A copy of this order be supplied, free of cost, to the complainant and file be consigned to record room after due compliance. 

  

Announced on:19.12.2022

 

 

 

Dr.Sushma Garg          Dr.Pawan Kumar Saini            Satpal

              Member                       Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

 

 

                                       (Satpal)

                                           President