State Consumer Disputes Redressal Commission
Prem Goyal vs J.S.Chauhan on 18 September, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.70 of 2015 Date of Institution : 26.03.2015 Order Reserved on : 14.09.2017 Date of Decision : 18.09.2017 1. Prem Goyal d/o Raman Singh, # H.No. 2100, Sector 21-C, Chandigarh. 2. Esha Garg w/o Sh. Vishal Garg, # H.No. 607, Sector 7, Panchkula. .....Complainants Versus J.S Chauhan, Advocate District Courts Complex, Derabassi, # H.No. 1, Ward No. 10, Derabassi ....Opposite Party Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. S.R Bansal, Advocate For opposite party : Sh. J.S. Chauhan in person with Sh. Vishal Sodhi, Advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that their father-in-law Jagdish Garg engaged OP as Advocate to appear and conduct the civil suit titled as Rajan Jindal vs. Prem Goyal and others in the court of Sh. Ranjeev Kumar Civil Judge (Sr. Division), Derabassi bearing civil suit no. 241/2014 along with other cases, as suit for recovery was pending for 11.03.2015 and criminal complaint was also pending in between the parties. The complainants and their attorney holder Jagdish Garg, being their father-in-law also engaged OP to render his professional services to them. OP assured and promised the complainants that they might come to the court as and when he would inform them, but OP did not turn up in the cases so pending in between the complainants and Rajan Jindal and others before the concerned Court and no call was ever made by him or received by the them in that regard. Some criminal complaint was pending in the court of Derabassi titled as State Vs. Sahil and Jagdish Garg vs. Sahil Gupta on 25.11.2014 and on that date, they along with their father-in-law Jagdish Garg enquired about the status of the case titled as Rajan Goyal vs. Prem Goyal, but OP informed them that it has been decided, as decreed in the month of September 2014, which surprised them. Thereafter, complainants accompanied with Jagdish Garg their father-in-law had withdrawn all the cases, being conducted by OP on their behalf and they also applied for certified copy of the order dated 25.11.2014 after engaging another counsel Sh. Bharat Bhushan Ahuja, Advocate of Derabassi, who immediately applied for certified copies of the entire case file and procured the same on 26.11.2014 along with all the interim orders passed by the court of Derabassi. After going through the contents of the entire case file, it transpired that OP had closed the evidence on behalf of complainant without their consent and knowledge, since the case was fixed for evidence of the complainants on 08.07.2014, 14.07.2014 and 22.07.2014 and he closed the evidence. The above said activities of OP amounts to deficiency in service and unfair trade practice on his part, besides willful misconduct. The complainants also served the legal notice dated 23.12.2014 to OP. but of no use. The complainants have, thus, filed the complaint directing OPs to pay Rs.40 lac towards the amount of sale consideration, besides Rs.1,12,000/- as stamp papers expenses, Rs.18,000/- as registration expenses, Rs.40,000/- as compensation, Rs.1 lac spent on construction of Rooms and Hand Pump, Rs.30,000/- as misc expenses and other reliefs as mentioned in the complaint.
2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is not maintainable. The complainants have no cause of action to file the complaint. They have not come to the Forum with clean hands and have suppressed the true and material facts. On merits, it was pleaded that complainants approached the Court at Dera Bassi from time to time and pursued the cases in properly. It was averred that case titled as "Rajan Jinda Vs. Prem Goyal" which was discussed in the complaint is that Rajan Jindal challenged the sale deed, which has been executed in favour of the complainants, as the seller of the said sale deed was a fake one meaning thereby some other person instead of Rajan Jindal sold the land to the complainants and due to which complainants themselves lodged the FIR against the said fake person and by way of lodging the said FIR, complainants themselves admitted this fact that someone else had played fraud with them, as some imposter instead of Rajan Jindal sold the land to them. As such, the complainants themselves filed the suit for recovery against Rajan Jindal and others, who was dealer of the said deal and the complainants also admitted this fact in the said suit that they have been defrauded as the original seller was not present at the time of registration of the sale deed in their favour of the complainant. The complainants as well as their attorney Jagdish Garg asked the OP to close the evidence before the court in the cited case. OP being authorized Advocate of complainants closed the evidence, as there was no evidence in favour of complainant to defend that case. It was further averred that complainants, as well as, Jagdish Garg was fully aware about the passing of order dated 02.09.2014 by the court concerned. It was further averred that OP has performed his professional duty in adroitly. Rest of averments of complainants have been denied by OP and it prayed for dismissal of the complaint.
3. The complainants tendered in evidence affidavit of Prem Goyal Ex.C-A along with copies of documents Ex.C-1 to Ex.C-12. As against it; OP tendered in evidence affidavit of Sh. Jasbir Singh Chauhan as Ex.OP-A along with certified copies of the order Ex.OP-1 to Ex.OP-3 and closed the evidence.
4. We have heard learned counsel for the parties and OP in person as well and also examined the record of the case.
5. The complainants have attributed deficiency in service and negligence on the part of OP in not communicating the date fixed in case "Rajan Jindal Vs. Prem Goyal" pending in the civil court at Dera Bassi to them and thereby himself closed the evidence after some dates by not informing them about the status of the case. This is in nutshell the gravamen of the grievance of the complainants in this case. The complainants pleaded that their father-in-law Jagdish Garg engaged the services of OP on their behalf for conducting civil case titled as "Rajan Jindal Vs. Prem Goyal" pending before civil court, Dera Bassi. Above said Jagdish Garg enquired the status of the civil suits from OP, wherein he intimated that the case has been decreed in September, 2014 by the civil court. Certified copies thereof were obtained which revealed this fact that OP closed the evidence on behalf of the complainant in the above civil suit without their consent, when it was fixed for evidence on 08.07.2014, 14.07.2014 and 22.07.2014. OP has not informed the complainant about production of their evidence and closed their evidence by keeping them uninformed about the same. They suffered huge loss thereby. Affidavit of Prem Goyal one of the complainants is Ex.C-A on the record. This affidavit is verbatim reproduction of pleadings of the complainants contained in complaint only on oath. The complainants sent legal notice Ex.C-1 to OP through their counsel on 23.12.2014 coupled with postal receipts Ex.C-2 to Ex.C-4 on the record. Legal notice was served upon OP, but as per version of the complainants, OP has not given any reply thereto. Appeal was also preferred by the complainants against decree of Civil Court, Derabassi against them. First appeal was preferred before District Judge, SAS Nagar, Mohali by the complainants against the impugned decree of the civil court at Derabassi, which is alleged to have been passed on account of closure of their evidence by OP without their consent. This is in nutshell the complaint in this case, as argued by Sh. S.R. Bansal, Advocate counsel for the complainant vehemently before us.
6. On the other hand, version of OP in this case is that OP was engaged through Sh. H.S. Dhanoa Advocate by the complainants and he rendered gratuitous service to the complainants only. Rajan Jindal challenged the sale deed in case "Rajan Jindal Vs. Prem Goyal" before Civil Court, Derabassi as fake and fraudulent document in favour of complainants. The complainants also lodged FIR for fraudulently executing the sale deed in their favour by some imposter. The complainants admitted this fact in FIR that somebody played fraud with them, as some impersonator executed sale deed in their favour by acting as vendor Rajan Jindal. The complainants themselves filed the suit for recovery against Rajan Jindal the dealer in the said deal and others said deal. The complainants admitted this fact in the civil suit that original seller was not present at the time of registration of the sale deed in their favour. The complainants as well as Jagdish Garg their attorney were fully aware about the passing of the order dated 02.09.2014 by civil court Derabassi.The complainants have not led any evidence in case Rajan Jindal versus Prem Goyal pending before the civil court, Derabassi. It is further averred in the written version that Jagdish Garg was the father-in-law of the complainant, who prosecute the case on behalf of the complainant and instructed OP to close the evidence in the court. OP further averred that complainants were fully aware about the status of their case as above Jagdish Garg had been in contact with same and they have not produced any evidence before civil court in that regard.
7. We have appraised the evidence on the record and also heard the submissions of counsel for the parties at length. Undoubtedly, an Advocate is accountable to client for professional deficiency in service or misconduct provided he has received consideration from the client to conduct the case. Advocate also renders his services against consideration to the clients, which are also regulated by professional ethics. There is no legal dispute about this proposition of law that Advocate also renders service to client, as contemplated under CP Act against consideration. We have to cull out from evidence on the record, if any deficiency in service or negligence on the part of OP is established on the record or not by complainants. Civil Suit no. 163 of 20.07.2009 was filed by Rajan Jindal for declaration regarding nullity of sale deeds dated 23.10.2008 and 10.02.2009 against complainants, which is an admitted fact. The judgment was delivered by Civil Judge (JD() Derabassi, which is Ex.OP-2 on the record. Civil Court found that case of the plaintiff Rajan Jindal is proved and as such decreed the suit for declaration as prayed for. Decree sheet is attached being a part of this judgment on the record. The complainant preferred Civil Appeal no. 133/22.12.2014 against decree of Civil Judge (Junior Division), Derabassi dated 02.09.2014 before Additional District Judge SAS Nagar, Mohali. The judgment of ADJ is Ex.OP-1, dismissing the appeal of the appellants, who are complainants in this case. The decree prepared by ADJ, Saru Mehta Kaushik is a part of this judgment, which is also on the record. So far as winning the case or losing the case in the civil court is concerned, no Advocate is liable therewith. The case depends upon the merits of particular case and it cannot be said that if the party has lost the case it is due to entire fault of the Advocate only. It is merits of the case and the evidence in that particular circumstances, which are mainly liable for the outcome of the case.
8. The complainants engaged the services of OP, which fact is proved on record by certified copy of the Vakalatnama, vide Ex.OP-3 in conducting the above civil suit on their behalf. Now, we have to determine, as to whether OP is either negligent or deficient in service in conducting the case of the complainant before civil court Derabassi, as referred to above. It is evident from perusal of the certified copy of zimni order dated 19.05.2014 of Additional Civil Judge (SD), Derabassi that Rajan Jindal closed the evidence on that date and the court fixed the case for evidence of defendants (now complainants) in that case for 08.07.2014 by giving direction to them to file PF (process fee), diet money, list of witnesses and list of documents within five days. This order dated 19.05.2014 passed by Civil Court has made it clear that plaintiff evidence was closed and case was posted for evidence of defendants with the direction to complainants of that case to deposit diet money, file list of witnesses, PF, list of documents within five days. The complainants have not deposited any diet money nor paid process fee and hence no process was issued by the civil court Derabassi for summoning their witnesses. On the next date 08.07.2014, no evidence of the defendant was present and case was adjourned to 15.07.2014 for entire evidence of the complainant. Certified copies of zimni orders of civil court are on the record. On 15.07.2014, no evidence of the defendants was again present and case was adjourned to 22.07.2014 for evidence of the defendants. On 22.07.2014, no evidence was led before the civil court by the side of the complainants and counsel for complainants in this case being defendants in that case closed their evidence in that eventuality. Eventually, civil suit was decided against the complainants. From the above perusal of zimni orders, we find that complainants failed to deposit diet money, process fee, file list of witnesses and list of documents within five days, as directed by civil court on 19.05.2014. Thereafter two more adjournments have been granted by civil court to the defendants now complainants to adduce their evidence but no such evidence was brought on record and counsel for defendants closed the evidence lastly on 22.07.2014. The point for adjudication, is whether OP closed the evidence of his own or at the instructions of Jagdish Garg faither-in-law of the complainants and their attorney holder as well. There is no clear and convincing evidence on this point by complainants has been equally rebutted by the OP on this score. Order XVII Rule 2 of Code of Civil Procedure 1976 lays down as under :-
"when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary."
This rule makes it clear that at the most, three adjournments shall be granted to the party during hearing of suit to lead the evidence. The legislative mandate is clear covering civil suit before the civil courts that three hearings have to be granted to the parties at the most. Herein, civil court granted three opportunities to complainants to lead evidence, but they failed to conclude the same. Counsel for OP closed the evidence in the end on 22.07.2014. Division Bench of our Hon'ble High Court has as held in "Suresh Kumar versus Smt. Daryali, reported in 1996(2) Civil Court Cases 646" that it is duty of the party to attend the proceedings along with his Advocate- merely by engaging counsel, the party is not absolved of his responsibility to attend the proceedings. If the counsel withdraws for want of instructions from his client, the court is under no obligation to serve him with another notice at public expenses. It was for the petitioner to look after his interest in the case by personal appearance or by engaging the counsel. If party engages the counsel without giving full instructions to him and suffers an adverse order, then blame squarely lies on that party. National Commission has also held in "Gurkirpal Singh (Dr.) versus Stevon Soni," reported in 2009(1) CPJ 1 that the petitioner alleged that counsel did not intimate him about filing of written statement immediately. Advocate averred that he had intimated the complainant about filing of the written statement, soon after it was filed. National Commission found no negligence on the part of the Advocate. Similarly, Single Bench of our own Hon'ble High Court has also held in "Vijay B. Verma versus Ludhiana Oil Expellers Cooperative House Building Society and others" reported in 2016(1) PLR 823 that Members of legal profession enjoy immunity against being prosecuted for acting on behalf of claimants and impermissible for suit to be filed also against lawyer, who represented plaintiff that suit did not make full disclosure of all facts and plaint was allowed on fake contest. In this case, complainants himself admitted in the FIR lodged by them that someone had played fraud with them, as someone else instead of Rajan Jindal sold the land to them impersonating as Rajan Jindal before registering authorities. The complainants failed to bring their own evidence and tried to shift buck on OP only. We are of this view that there is no willful negligence or deficiency in service of OP in this case, because the complainants themselves failed to bring evidence on three hearings granted by civil court to them for this purpose. It is paramount duty of the concerned party to produce the evidence at its own end, if it has not summoned the witnesses through the agency of the court. Not credible to believe that complainants were kept uninformed by OP about the status of the case, 'a fortiori, when they themselves admitted this fact in the complaint lodged by them in the court that some imposter executed the sale deed in their favour as Rajan Jindal. Even their appeal has not been accepted on this ground by ADJ, SAS Nagar, Mohali, otherwise the case would have been remanded to Lower Court for providing due opportunities of leading evidence to complainants in that civil suit. The dismissal of this civil appeal of the complainants by ADJ Mohali is also a pointer to this effect that there is no deficiency in service of OP. As there is no cogent evidence on the record by complainants to prove deficiency in service and negligence of OP in conducting their case and evidence of the complainants is equally rebutted by evidence of OP on the record.
9. As a result of our above discussion, we find no merit in the complaint and same is hereby dismissed.
10. Arguments in this complaint were heard on 14.09.2017 and the order was reserved. Now the order be communicated to the parties under rules.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER September 18, 2017 (ravi)