State Consumer Disputes Redressal Commission
Ram Dass vs Ashok Girdhar on 12 June, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.60 of 2013
Date of Institution: 04.06.2013.
Date of Decision: 12.06.2015.
Ram Dass S/o Ajaib Singh S/o Bishan Singh R/o Village,
Thandewala, Tehsil and District Muktsar.
.....Complainant.
Versus
Ashok Girdher Advocate, Chamber no.96, District Courts, New
Judicial Complex, Sri Muktsar Sahib.
....Opposite party
Consumer complaint under Section
17 (a) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Shri H.S. Guram, Member Present:-
For the complainant : Sh. S.C. Arora, Advocate
For the opposite party : Sh. A.K. Khunger, Advocate
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Ram Dass has filed this complaint under Section 17 (a) of Consumer Protection Act 1986 (in short "the Act") against the OP on the averments that complainant filed civil suit no.20 of 16.02.2010 for possession of land measuring 149 kanals 7 marlas situated at Village Thandewala Tehsil and District Muktsar Consumer Complaint No.60 of 2013 2 against Dilip Singh and others on the basis of agreement of sale dated 20.09.2006 and receipt dated 12.05.1987 for specific performance of agreement of sale. The complainant engaged the services of OP to represent him as counsel in the above civil suit and paid the amount of Rs.22,000/- as fee to him and OP had not issued any such receipt to the complainant. The total area of land was measuring 149 kanals 7 marlas. Previously, total area of this land was 147 kanals and 18 marlas, but later on, it was rescheduled as 149 kanals 7 marlas. On 20.09.1986, defendants no.1 and 2 and one Phino alias Angrej Kaur, the predecessor in interest, of the remaining defendants in the civil suit agreed to sell the suit land measuring 149 kanals 7 marlas in favour of the complainant @ Rs.15,000/- per acre.
The agreement of sale was executed between the parties, which was executed by the parties in the presence of witnesses. The above referred executants of agreement of sale agree to execute the sale deed of the property in favour of the complainant on the completion of pending litigation. The complainant was in possession of 78 kanals 10 marlas out of suit land as a tenant. The defendants in the above civil suit received Rs.1 lakh from the complainant towards earnest money and defendants in the civil suit duly signed the above receipt admitting the possession of complainant over 78 kanals 10 marlas of land. In RSA no.3794/1999 titled as "Dalip Singh Vs. Natha Singh etc.", the Hon'ble Hight Court, vide its order dated 21.08.2006, held the proforma respondents in the appeal to be the Consumer Complaint No.60 of 2013 3 owner of the suit land in terms of the will, left by Har Kaur. The OPs in the civil suit filed a Special leave Petition bearing no.18095 of 2006 in the Supreme Court, which was dismissed on 18.02.2008. In this way, Dalip Singh, Baljit Singh alongwith proforma respondents in the appeal became the owners of the suit land. The civil case of the plaintiff, now complainant solely rested on the receipt dated 12.05.1987. The complainant had placed the receipt on the file of main civil suit and list of documents and reliance of documents under Order 7 Rule 14 of CPC was placed on the record, which were duly signed by the OP Ashok Girdhar Advocate. Hoshiyar Singh witness was examined to prove the above receipt dated 12.05.1987 in the civil court and his examination in chief was recorded on 29.09.2010. On 26.10.2010, when Hoshiyar Singh marginal witness was recalled for cross examination, it was revealed that original receipt was not on the judicial record. The plaintiff appeared for cross-examination on 19.04.2012 and came to know regarding loss of above original receipt and only photocopy of the receipt was on the judicial record. The complainant being an illiterate person could not read it. Sh. Ashok Girdhar Advocate, the OP in this complaint mollified the complainant and without applying his reasonable mind, he filed an application for leading secondary evidence to prove the contents of the original receipt in the Civil Court. The counsel for the plaintiff engaged another counsel for him on some pretext and handed over the brief to Sh. R.L. Jagga Advocate and complainant was never Consumer Complaint No.60 of 2013 4 advised to file revision petition against order dated 24.01.2013, dismissing the application for secondary evidence to prove the above receipt. The complainant has further alleged that the OP has not filed an application under Section 340 of Code of Criminal Procedure (Cr.PC) for commission of an offence under Section 195 of IPC. The complainant has further alleged that on account of deficient service and negligent act of the OP, the original receipt was lost from the judicial record and the complainant was made to suffer an immense loss therefor. The complainant has filed the complaint praying for compensation of Rs.50 lakhs against the OP.
2. Notice of this complaint was issued to the OP and OP appeared and filed written reply to the complaint and contested it vehemently. It was averred in the preliminary objections by the OP that OP is an advocate and has been practicing at District Courts Muktsar for the last 30 years. No complaint has been filed against him previously on any occasion. It was further pleaded in the preliminary objections that allegation of complainant that he handed over the receipt dated 12.05.1987 in original to OP and the same was placed on the record in the above civil suit is incorrect. It was further alleged that it is pertinent to mention that at no point of time, the original receipt was given to OP by the complainant and rather the carbon copy of the said receipt was supplied to the OP only. The said carbon copy of receipt is attested by Sub Registrar Muktsar as Consumer Complaint No.60 of 2013 5 well as entered in the record of deed writer. It was inadvertently recorded as in original in the list of documents by the Clerk of the OP. It was further pleaded that in the examination in chief of Hoshiyar Singh witness on 29.09.2010 in the court, this fact came to the notice in the trial court that in fact the above said receipt is not original, therefore, in the statement recorded before the trial court of the said witness Hoshiyar Singh, it was recorded as Mark-4 instead of Ex.P4, because it was not the original receipt. On the instructions of the complainant, the OP filed an application for summoning the witnesses to prove the above receipt and Mr. Satpal Chhabra, retired Reader of the then Sub Registrar was summoned to prove the signatures of the then Sub Registrar on the receipt and copy of application dated14.08.2010 is also annexed for proving it by secondary evidence. It was further averred by the OP that the alleged receipt is laminated one and the same was placed on the court file by the OP in the same position, as received from complainant. While recording the statement of Hoshiyar Singh PW-2 in the civil suit, the receipt was marked as Mark-4 and it also bore the signatures of the Presiding Officer of the Civil Court on it. The allegation of the complainant that it was lost on the judicial record after 29.09.2010 is baseless. The complaint was also contested even on merits by the OP. OP denied any deficient service on his part stoutly. The OP further averred that complainant himself engaged Sh. R.L. Jagga another counsel without any advice of the Consumer Complaint No.60 of 2013 6 OP. The OP controverted the allegations of the complainant regarding any negligence of service on his part and hence prayed for the dismissal of the complaint of the complainant.
3. The complainant tendered in evidence, the documents Ex.C-1 to C-8/A and separately tendered Ex.C-11 on 12.06.2014 and closed the evidence. As against it, the OP Ashok Girdhar tendered in evidence affidavit Ex.OP/A alongwith documents Ex.OP- 1 to OP-4 and closed the evidence. The document Ex.C-11 has been wrongly tendered as Ex.C-11 instead it should have been tendered as Ex.C-9, as there are no other documents tendered by the complainant on the record in evidence other than the above referred documents. After Ex.C-8/A, the complainant tendered only one document by wrongly marking it as Ex.C-11 instead of Ex.C-9.
4. We have heard the learned counsel for the parties and have also examined the record of the case. We are called upon to adjudicate to this point in this case as to whether OP has been deficient in rendering service to the complainant or negligent in discharge of his duties towards the complainant or not. We have carefully gone through the pleadings contained in the complaint and the written reply by the OP on the record in this case. Similarly, we have also examined Ex.C-1 the head note of plaint of civil suit no.89F/2013 titled as "Ram Dass Vs. Dalip Singh and others" for specific performance of agreement for sale dated 20.09.1986 for the Consumer Complaint No.60 of 2013 7 land measuring 149 kanals 7 marlas of land situated at Village Thandewala Tehsil and District Muktsar. Ex.C-2 is the certified copy of receipt dated 12.05.1987 on the record, which is the document in dispute in this case. Ex.C-3 is the certified copy of vakalatnama executed by the complainant in favour of Ashok Girdhar Advocate OP on 15.02.2010 in the civil suit. Ex.C-4 is the certified copy of the list of documents under Order 7 Rule 14 of Code of Civil Procedure. Ex.C-5 is the certified copy of list of documents under Order 7 of Rule 14 of CPC. Ex.C-6 is the certified copy of the statement of Hoshiyar Singh recorded in the Civil Court on 29.09.2010. In continuation, Ex.C-6 is the certified copy of affidavit of Hoshiyar Singh. Ex.C-7 is the certified copy of the cross-examination of Hoshiar Singh in the Civil Court Muktsar dated 26.10.2010. Ex.C-7/A is the certified copy of affidavit of Ram Dass plaintiff. In continuation, Ex.C-7/A is certified copy of statement of Ram Dass, now complainant recorded partly on 04.01.2012. In continuation, Ex.C- 7/A is certified copy of cross-examination of Ram Dass dated 19.04.2012. Ex.C-8 is the certified copy of application for secondary evidence to prove the writing dated 12.05.1987, which is the receipt in dispute in this case. In continuation, Ex.C-8 is the affidavit of Ram Dass complainant with regard to application for proving the above receipt by means of secondary evidence. Ex.C-8/A is the certified copy of the zimni order dated 11.04.2014 passed by the civil court. In continuation, Ex.C-8/A is the application under Section 340 of the Consumer Complaint No.60 of 2013 8 Cr.PC moved by the complainant before Civil Court for conducting an enquiry regarding the loss of the receipt from judicial record. There are no documents Ex.C-9 and Ex.C-10 on the record and the counsel for the complainant straightway marked as Ex.C-11 to the certified copy of order of application under order 39 Rules 1 & 2 read with Section 151 CPC instead of marking it as Ex.C-9. The complainant should have marked it as Ex.C-9, but wrongly marked it as Ex.C-11, because no other documents have been tendered on the record by the complainant other than the above referred one.
5. The OP in rebuttal relied upon his affidavit Ex.OP/A in support of his averments, as contained in the written reply. Ex.OP-1 is the application for summoning the witnesses on P.F. and D.M. by the complainant in the Civil Court. Ex.OP-2 is the photocopy of the receipt dated 12.05.1987. Ex.OP-3 is the copy of affidavit of Ram Dass complainant. Ex.OP-4 is the copy of zimni order of the court dated 04.02.2013.
6. From perusal of record and hearing the submissions of the counsel for the parties, we have come to this conclusion that a seriously disputed fact is involved in this case, as to whether the original receipt was handed over by the complainant to the OP or not or whether it was lost from the judicial record or not. The OP controverted these allegations by contending that only carbon copy of the receipt was handed over to him by the complainant and not Consumer Complaint No.60 of 2013 9 the original receipt. The complainant filed the application to prove the above receipt by means of secondary evidence before the concerned Civil Court. This application is Ex.C-8 on the record. This application is signed by the complainant himself. The complainant has made the admission in this application by stating to the Court that original receipt was lost from the plaintiff because plaintiff has been litigating regarding the said land in different Courts. Admission contained in the application by the complainant before Civil Court can be duly taken into account by us. The complainant has alleged in this application that original receipt was lost from him. The certified copy of affidavit of complainant Ex.C-8 is also on the record. The complainant also swore this fact on oath that original receipt was lost from plaintiff because he has been litigating in different courts regarding the property in dispute. The complainant admitted in the above application for secondary evidence and in the affidavit in the Court that original receipt was lost by the plaintiff due to litigation in different courts. The complainant also moved an application under Section 340 of Code of Criminal Procedure, vide Ex.C-8/A on the record. The complainant changed his stand by contending that his original receipt was lost from the judicial record in this application. The competent Court of Law is already seized of this matter as to whether the original receipt was lost from judicial record and what action is required to be taken thereon, if it is so. The complainant is now alleging that the original receipt has been lost, while it was Consumer Complaint No.60 of 2013 10 custodia legis, whereas the OP has submitted that only carbon copy of the receipt was given to him by the complainant. The complainant relied upon the list of documents Ex.C-5, wherein the wording original receipt is recorded dated 12.05.1987. The counsel for OP submitted that it is due to inadvertent act of Clerk of OP that it was so recorded.
7. From perusal of above referred documents on the record and hearing the submissions of the parties and examining their pleadings, we have come to this conclusion that complex facts are involved in this case as to whether the original receipt was lost from plaintiff or it was lost from the record of judicial custody. This point is also highly disputed whether complainant handed over the original receipt to the OP or only handed over the carbon of it to the OP. Seriously disputed facts are involved in this case, which would require voluminous evidence entailing cross-examination and re-examination of the witnesses. Lengthy procedure would be required in this case in recording the evidence for the settlement of this dispute. The Consumer Fora is vested with summary powers only under the Act and where complex facts and intricate questions of law are involved, the appropriate Forum and regular courts are competent for adjudication of the dispute. Consequently, we have come to this conclusion that it would be appropriate for the parties to get their matter settled from the regular Court of Law, because Consumer Complaint No.60 of 2013 11 lengthy and voluminous evidence would be required in this case for the settlement of the dispute, which is not possible to be adjudicated in summary proceedings by this Forum.
8. In the light of our above discussions, we dismiss the complaint of the complainant and complainant is at liberty to approach the regular Court of Law to get his matter decided there.
9. Arguments in this complaint were heard on 11.06.2015 and the order was reserved. Now the order be communicated to the parties.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER June 12, 2015.
(MM)