Order No.1 contd…                         Dated:20/04/2023

Misc. Application dated 20/04/2023 filed by the complainant/petitioner is taken up for hearing. Copy served.

Perused and considered the Misc. application.

Heard Ld. Advocate for the complainant / petitioner and Ld. Advocate for the opposite party.

Ld. Advocate for the complainant / petitioner submits he has filed a petition on 21/01/2022 in CC/51/2021 on behalf of the complainant which states as follows:

“Complaint has been filed along with supporting documents with proper notary affidavit. So, this complaint petition may be treated as affidavit of evidence. The prayer of the complainant be allowed”.

The said petition dated 21/01/2022 is neither verified nor supported by affidavit. Moreover, it has not been signed by the complainant.

However, after scrutiny of record we find vide order no.8 dated 21/01/2022 the erstwhile Commission was pleased to allow the prayer of the complainant which was  filed by his Ld. Advocate.  On further scrutiny of the record, we find that the opposite party filed questionnaire and the complainant filed affidavit in reply to the questionnaire in this case.

Thereafter, the opposite party filed affidavit in chief against which questionnaire was filed by the complainant. The opposite party filed reply on affidavit.

Thereafter the case was fixed for BNA and argument.

At this stage, Ld. Advocate for the complainant by filing instant the Misc. Application stated that the evidence which the complainant filed on 21/01/2022 was not done in proper format and was fully defective and prays for filing supplementary evidence on affidavit in support of the complaint application.

Ld. Advocate for the opposite party raised strong objection against the prayer of the complainant.

It is apparent in the face of the record that the complainant is not a legal person.

Therefore, he sought legal assistance from his Advocate.

It is also apparent that a simple petition filed by the Ld. Advocate for the complainant without any signature of the complainant on the prayer for treating the pleading as evidence has been allowed vide order No.8 dated 21/01/2022, which is beyond any scope of law.

I find it is astonishing though there is no evidence in the record on the part of the complainant, the opposite party filed questionnaire and to that the complainant filed reply to the questionnaire on affidavit. It is settled principle of law the pleading cannot be treated as evidence.

Section 38(9)(c) of C.P. Act, 2019 is followed:

“Procedure of admission of complaint…….for the purpose of this Section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908) while trying a suit in respect of the following matters, namely__

The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath:

Requiring the discovery and production of any document or other material object as evidence:

Receiving of evidence on affidavits;

In view of the above, it is needless to say the order passed on 21/01/2022 is beyond the scope of law.

It is needless to reiterate that the complainant Mr. Kailash Kumar Chowdhury is not a legal person and it is also apparent on the face of the record that he has not been advised properly to file evidence in the record.

For this we are of the opinion a layman who came before this Commission for redressal of his grievance cannot be penalized for want of proper advice, therefore, Misc. Application is allowed on contest.