State Consumer Disputes Redressal Commission
Ramchand J.Uttamchandani And Anr. vs Ms.Mrunalini Deshmukh-Advocate on 4 April, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO.848 OF 2008 Date of filing : 16/06/2008 IN CONSUMER COMPLAINT NO.669/2001 Date of order : 04/04/2009 ADDL.DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN 1. Ramchand J.Uttamchandani 2. Sonia R.Uttamchandani Both R/o.A-2, La-Salette Building La-Rose CHS, Sitladevi Temple Road Mahim, Mumbai 400 016 ..Appellants/org.complainants v/s. Ms.Mrunalini Deshmukh-Advocate 54/2516, Ground floor Gandhinagar, opp.MIG Club Bandra(E), Mumbai 400 051 Respondent/org.O.P. Corum: Justice Shri B.B.Vagyani, Honble President Shri S.R.Khanzode, Honble Judicial Member Present : Appellant in person. Mr.A.V.Patwardhan-Advocate for the respondent. O R D E R
Per Justice Shri B.B.Vagyani, Honble President
1. Heard appellant in person. Mr.A.V.Patwardhan-Advocate for the respondent.
Additional Mumbai Suburban District Consumer Forum by order dated 26/3/2008 dismissed the consumer complaint on the ground that there was no deficiency of service on the part of the respondent, who is a practicing Advocate. In brief facts of the case are as under:-
2. Petitioner-appellant no.2 is a married daughter of appellant no.1. Appellant no.2 had filed Divorce petition against her husband in the Family Court no.5 at Bandra (East). Initially Advocate Ms.Chitra was engaged. At the fag end of 1999, Advocate Ms.Chitra was appointed as Public Prosecutor to conduct the matters in the High Court. She therefore, expressed her inability to conduct the divorce petition. Advocate Chitra was discharged. The services of respondent herein were hired. The appellants paid Rs.5000/- as fees to respondent. Appellant further agreed to pay Rs.150/- on each appearance. The respondent filed her Vakalatnama on 20/5/2000. On that day, respondent filed application below Exhibit 18 for medical examination of the respondent. Matter was thereafter adjourned to 15/7/2000. On 15/7/2000, copy of Exhibit 18 was served on the Advocate of the husband. Matter was adjourned for reply to Exhibit 18 on 8/9/2000. On 8/9/2000 both the contesting parties and their Advocates remained absent. Ld.Judge of the Family Court dismissed the divorce petition in default. Appellants therefore filed consumer complaint no.669/2001.
3. Said complaint was resisted by the present respondent. The respondent contended that the Judge Family Court dismissed the divorce petition mainly on the ground that both the contesting parties were absent. The respondent further relied on the provisions of Family Court Act and Rule 37 of the Family Court Rules framed there under. It was also contended by the respondent that she was conducting the matter in another court and therefore, she had deputed her Junior Advocate Shweta Storewala to look after the divorce petition. The Learned Judge, Family Court however did not record the presence of Advocate Shweta Storewala and dismissed the divorce petition because of absence of parties. The respondent has denied to have rendered deficient service.
4. District Consumer Forum after hearing both the parties and taking into consideration material placed on record, dismissed the consumer complaint with cost.
5. The reliance on the provisions of Family Court Act and Rule 37 framed there under is misconceived. In Family Court, the Advocate cannot appear as of right. Leave of the court is necessary. If complicated questions are involved in the petition, with the leave of Court the lawyer can represent the parties. In this case, the respondent appeared before the Judge, Family Court and filed her Vakalatnama on 20/5/2000. Filing of Vakalatnama would clearly go to show that the Judge of the Family Court must have granted permission to the lawyer to represent the appellants. There is nothing brought on record to show that the Judge, Family Court had refused permission to the respondent to represent the appellants. Roznama would clearly go to show that after acceptance of Vakalatnama, other side was asked to reply the application Exhibit 18, which was filed by present respondent. We therefore draw an inference that the Judge Family Court had granted leave to appear and represent the appellants.
6. It is an admitted fact that the respondent received legal fees to the tune of Rs.5000/- from the appellants for conducting divorce petition. As per understanding between the appellants and the lawyer, respondent received Rs.150/- for each appearance. Respondent was present on 20/5/2000 and 15/7/2000. Respondent therefore received Rs.300/- from the appellants. The respondent therefore had absolutely no ground to remain absent on 8/9/2000. On 8/9/2000, respondent was absent. No doubt it is mentioned in the Roznama dated 8/9/2000 that both the parties were absent. Matter was adjourned for reply to application Exhibit 18. Matter was not fixed for recording of oral evidence on 8/9/2000. Under the circumstances, presence of the petitioner was not necessary. However presence of the Advocate was necessary, because respondent had accepted brief with consideration. Therefore, it was the duty of the respondent to remain present before the Court on 8/9/2000. It is a fact that respondent remained absent before Judge, Family Court on 8/9/2000.
Because of absence of respondent, matter was dismissed. If respondent would have remained present before Judge, Family Court, the matter would not have been dismissed for default. Remaining absent without prior intimation and filing of application for adjournment is a deficiency in service.
7. It is tried to be argued that the respondent was conducting the matter in the adjoining court. There is nothing on record to show that the respondent was conducting another matter in the adjoining court. Conducting the matter in adjoining court does not absolve respondent from her obligation to remain present before concerned Judge of Family Court. The respondent could have placed on record the Roznama of the matter, which was conducted by her before another court. Names of the parties and the number of said matter are not disclosed by the respondent.
8. It is also tried to be submitted that respondent had deputed her Junior Advocate Shweta Storewala to look after divorce petition. It is stated that Judge Family Court did not record the presence of Advocate Shweta Storewala and dismissed the divorce petition. Affidavit of Advocate Shweta Storewala is not placed on record. There is nothing on record to show that Advocate Shweta Storewala was very much present before Judge Family Court to look after the divorce petition. If the divorce petition would have been dismissed because of absence of parties and Advocates, Advocate Shweta Storewala would have brought to the notice of the court that she was very much present in the court to represent petitioner in divorce petition. If Advocate Shweta Storewala would have been present in the Court, the Judge Family Court would have certainly recorded her presence and would not have dismissed the divorce petition for default.
9. If Advocate Shweta Storewala was present in the Family Court she would have definitely conveyed to the respondent about the dismissal of divorce petition for default. But nothing of that sort had occurred. If really respondent was present in another Family Court, she would have certainly gone to the concerned Family Court to look after the divorce petition. If she would have gone to the Judge of the concerned Family Court, she would have definitely filed an application for restoration on the very same day. No such prayer for restoration was filed at the fag end of the day. This shows the negligence on the part of the respondent.
10. The petitioner was at Dubai at the relevant time. Restoration application was filed about a month thereafter. The petitioner was required to come to India from Dubai for the purpose of filing an application for restoration. She was unnecessarily required to spend on her journey. She had also suffered an emotional trauma because of dismissal of divorce petition.
11. After having scanned the entire material on record and after having considered the facts and circumstances of the case, we are of the clear opinion that there was professional misconduct on the part of respondent. Respondent had accepted the brief of the petitioners. She had received her legal fees. It was her duty to remain present before the Judge Family Court on the relevant day. Respondent admittedly remained absent. Because of her absence, divorce petition was dismissed. This is a clear case of deficiency in service. We therefore hold that the dismissal order passed by the District Consumer Forum is erroneous. In the result, we pass following order:-
ORDER
1.
Appeal is allowed with cost of Rs.1000/-.
2. Dismissal order under challenge is quashed and set aside.
3. Consumer complaint is partly allowed.
4. We hereby direct respondent to pay Rs.10,000/- to the petitioners by way of compensation for deficiency in service.
5. Copies of the order be furnished to the parties.
(S.R.Khanzode) (B.B.Vagyani) Judicial Member President Ms.