State Consumer Disputes Redressal Commission
Yash Pal Singh, Advocate vs Madan Lal Chopra on 20 April, 2007
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Revision Pet. No. 22/2006. Date of Decision 20.04.2007. 1. Sh. Yash Pal Singh, Advocate Distt. Court Hamirpur, Distt. Hamirpur, H.P, 2. Sh. Naresh Thakur, Advocate, High Court of H.P. Shimla 171 001. . Petitioners. Versus Sh. Madan Lal Chopra S/o Sh. Tirath Ram, Prop M/s Madan Lal Chadha & Sons, R/o Ward No.5. Main Bazar, Hamirpur, Tehsil & Distt. Hamirpur, H.P. . Respondent. Honble Mr. Justice Arun Kumar Goel, President. Honble Mr. Narinder Singh Thakur, Member. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting? No. For the Petitioners. Mr. Shashi Bhushan Singh Chandel, Advocate. For the Respondent. Mr. Mohinder Gautam, Advocate. O R D E R:
Justice Arun Kumar Goel (Retd.) President, (Oral) This revision is directed against the order dated 4.7.2006, passed by District Forum Hamirpur. While allowing the application for addition of party, petitioner No.1 has been ordered to be added as a party in Consumer Complaint No. 7/2005.
2. Facts regarding which learned counsel for the parties were not at variance are that a complaint was filed by the respondent against petitioner No.2 alleging deficiency in rendering professional service and having indulged to unfair trade practice. This complaint was resisted by the petitioner No.2. Besides other pleas, stand of the respondent was that he had sent the papers alongwith bank draft and vakalatnama for defending him before this Commission in Appeal No. 253/2003, through Y.P. Kanwar, Advocate Hamirpur. Receipt of papers from the respondent was disputed by petitioner No.2. Amongst others one of the ground urged by him was that there was no territorial jurisdiction with the District Forum, Hamirpur to try and entertain the complaint in question. This question in our opinion would have gone to the route of the case. How the District Forum at Hamirpur has the jurisdiction as per averments in the complaint is extracted hereinbelow:-
8. That the complainant declares that the subject matter of complaint is situated within the jurisdiction of the Honble Forum and hence the Forum has jurisdiction.
3. In the face of this averment and specific challenge by petitioner No.2 to the territorial jurisdiction of the District Forum, Hamirpur assumes significance and in our considered view this question of jurisdiction ought to have been decided first before proceeding further on the merits of the case.
4. Faced with this situation Mr. Gautam after placing reliance on a decision of Honble Supreme Court in the case of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another (In both the Appeals) Vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, (In both the Appels) AIR 1973 Supreme Court 76, submitted that this revision is liable to be dismissed and we should not interfere with the impugned order, even after we are of the view that it is wrong. So far legal proposition laid down in this judgment is concerned, there can hardly be any dispute. However such technicalities of law cannot be allowed in the summary proceedings under the Consumer Protection Act, 1986.
5. However, in face of the pleadings made in the original complaint and prayer made in the application for addition of parties, this judgment has no applicability. We are well aware that scope of revision is very limited and the only thing that has to be seen by the Courts is whether the Court had jurisdiction vested in it and or had exercised it with material illegality or material irregularity. Even in case of a wrong decision of the trial Court ordinarily, higher Court would not interfere with such decision, this is what was held by the Honble Supreme Court.
6. Unfortunately, in the present case, District Forum, Hamirpur forgot the basic principle of impleadment of a party. A perusal of the application for impleadment of petitioner No.1 as a party clearly indicates that no relief is claimed against him in the application and it also does not indicate as to how said petitioner No.1 is either a necessary or proper party to the complaint.
7. Again faced with this situation, Mr. Gautam learned counsel for the respondent submitted that allegations have been made against petitioner No.1 in paragraph 5 of the complaint. We are sorry to observe that the District Forum, below has completely ignored the addition of allegations against petitioner No.1 even when no such prayer was made in his application for impleadment of this petitioner.
8. In any event on the basis of the complaint, we are satisfied that it discloses no cause of action against petitioner No.1 in the complaint as originally filed, and therefore it is neither necessary nor a proper party. And above all his presence was not at all necessary as a party to the case.
9. His addition as a opposite party in the complaint is neither warranted in the facts of the case nor can be justified. Thus we are satisfied that the impugned order has been passed illegally, as well as by exercising the jurisdiction not vested with the District Forum, below who exercised it with material irregularity and consequently failed to exercise the jurisdiction vested in it according to law. What falls from this is that addition of petitioner No.1 as opposite party in Consumer Complaint No. 7/2005 needs to be set aside. Ordered accordingly.
10. At this stage Mr. Chandel on behalf of petitioner No.2 submitted that the question of territorial jurisdiction in the face of the averments made in the complaint go to the route of the case, therefore, direction may be issued to the District Forum, below to decide it first before dealing with the case on its merits.. This prayer in the circumstances of this case appears to be reasonable and just, and therefore needs to be upheld. Though Mr. Gautam submitted that this question should also be determined with the main case. If ultimately the District Forum comes to the conclusion that it lacks territorial jurisdiction, in such a situation further proceedings in the complaint will be an exercise in futility, besides wastage of time of the Forum below.
11. No other point is urged.
In view of the aforesaid discussion, this revision is allowed and as a result of it, addition of petitioner No.1, i.e., Yash Pal Singh, Advocate as opposite party in Consumer Complaint No. 7/2005, by District Forum Hamirpur is hereby set aside and consequently application for his addition under order 1 rule 10 CPC stands dismissed. At the same time, plea of the petitioner No.2 to direct the District Forum, below to decide the question of territorial jurisdiction as preliminary issue before examining the case on its merits needs to be upheld. Ordered accordingly.
Since record of the complaint file is here, parties through their learned counsel are directed to appear before District Forum at Hamirpur, on 9.5.2007. Office will ensure that record is dispatched well before the date fixed. Fresh notice will not be issued to the parties. Since date is fixed by us and in the event of absence of any parties appropriate order in accordance with law against such defaulting party shall be passed.
All interim orders passed from time to time in this revision petition shall stand vacated forthwith.
Office will make available a copy of this order to the parties free of costs as per rules.
Shimla.
20th April, 2007. (Justice Arun Kumar Goel) Retd.
President.
(Narinder Singh Thakur), Member.
(Saroj Sharma), Karan* Member.