State Consumer Disputes Redressal Commission
V.Palani Velu, S/O. Vadivelu, No.48, ... vs 1.S.Narayanan, Advocate, No.15 ... on 13 July, 2023
Daily Order IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Hon'ble Thiru Justice R. SUBBIAH PRESIDENT Thiru R VENKATESAPERUMAL MEMBER F.A.NO.21/2021 (Against order in CC.NO.68/2018 on the file of the DCDRC, Nagapattinam) DATED THIS THE 13th DAY OF JULY 2023 V. Palanivelu S/o. Vadivelu No.48, Tirumanjana Veethi Koranad, Mayiladuthurai-609 001 In person Nagapattinam District Appellant / Complainant Vs. 1. S. Narayanan, Advocate No.15, Mayuranathar Sannathi Street Mayiladuthurai- 609 001 M/s.N.S. Nageswaran Nagapattinam District Counsel for 1st Respondent 2. Secretary M/s. J. Pothiraj Bar Council of Tamil Nadu Counsel for R2 High Court Campus, Chennai Respondent / Opposite parties The Appellant as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had dismissed the complaint. Against the said order, this appeal is preferred by the complainant praying set aside the order of the District Commission dt.26.2.2021 in CC.No.68/2018. This appeal is coming before us for hearing finally on 17.3.2023, upon hearing the arguments of the counsel appearing for appellant and 2nd Respondent and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order: ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the appellant/ Complainant as against the order dt.26.2.2021 in CC.No.68/2018 passed by the District Consumer Disputes Redressal Commission, Nagapattinam in dismissing the complaint.
2. For the sake of convenience the parties will be referred as per the ranking before the District Commission.
3. The brief facts of the case, which are necessary to decide the appeal is as follows:
The complainant had acquired the landed property in his name, as well as in the name of his wife and son, through sale deed and exchange deed duly registered at the office of the Joint I Sub Registrar, Mayiladuthurai vide registered Document No.621 of 2013 and 622 of 2013 on 27.3.2013.
The details of the property as follows:
Property: Mayiladuthurai Registration District, Mayiladuthurai Town, Kornaad, Ward No.3 Block No.29 T.S.No.1000/2 1093 Sq.ft.
In the name of Subramanian S/o.Ulaganathan T.S.No.1001/2 3962 Sq.ft., And Surender Babu S/o.Palanivelu through Sale deed T.S.No.1001/2 4145 Sq.ft.
In the name of Palanivelu S/o.Vadivelu T.S.No.1003/2 2000 Sq.ft., And Renganayagi, W/o.Palanivelu through exchange deed While so, one Karthikeyan and Rafi Ahamed have formed a Sangam viz. Nachimuthu Nagar Kudiyiruppor Nala Sangam, solely with the intention to grab the property, and they filed suit in OS.No.265/2013 before the Principal District Munsif Court, Mayiladuthurai. The complainant had engaged the 1st opposite party as his counsel, to contest the said case. The said Sangam was also registered under the Tamilnadu Societies Registration Act, vide No.114/2013 before the District Registrar, on 21.10.2013. Before registering the sangam, the members have obtained EC in the name of the deceased Nachimuthu Mudaliar and obtained the Encumbrance Certificate from the Joint I Sub Registrar vide E.C.No.3296/2013 and 3319/2013 on 14.10.2013 and 16.10.2013, in respect of the said property. The Registrar also issued certificate as if there is no encumbrance. But the suit was filed with an ulterior motive by suppressing 13 documents which were already registered in the suit property. Based on the said encumbrance certificate, an injunction was obtained on 29.10.2013 in OS.No.265/2013. The injunction was granted without hearing the defendant Mr.Pradhanbabu. Subsequently, the said injunction was also extended on various dates. In the said suit, the plaintiff also filed another application in IA.No.78/2014 on 28.11.2013 to include the name of the complainant and his wife and son. The said petition vide IA.No.615/2014 was allowed. Hence the complainant got back the case records from the opposite party and with the due concern engaged another advocate. Actually the said suit was not maintainable, but the counsel engaged by the complainant has failed to appraise the District Munsif Court about the non-maintainability of the suit as well as failed to contest the case with substantial points at every stage of the proceedings. The points ought to have been raised are:
There is no piece of evidence for the cause of action as stated in the plaint The plaintiffs have not filed any Resolution of the alleged Sangam while filing the suit The 1st opposite party failed to object at the point of admission of the suit that there is no enjoyment or possession of the suit property by the plaintiff The suit for bare injunction is not maintainable while the plaintiff have no title and there is cloud of title dispute over the suit property The 1st opposite party failed to contest the case while the court passed the order status quo on 29.10.2013 and suo motu changed same into injunction on 6.11.2013, 20.11.2013 and so on.
Failed to object for the amended plaint.
But the 2nd opposite party has not raised the above said points. Therefore the court had passed an order on 28.11.2013, by closing the petition. When the suit against a single defendant has been once for all adjudicated, there shall be no fresh cause of action to maintain the same suit. Further the 1st opposite party has failed to question the encumbrance certificate in the name of the deceased owner of the land. The complainant had paid a sum of Rs.27000/- towards advocate's fees. Therefore the complainant had filed a detailed complaint to the 2nd opposite party viz. the Secretary, Tamil Nadu Bar Council against the 1st opposite party. But the 2nd opposite party had sent a reply by raising some query. Thus alleging negligence on the part of the opposite parties, filed a complaint before the District Commission, praying for a direction to the 1st opposite party to pay a sum of Rs.2 lakhs towards compensation for mental agony, and opposite parties 1 & 2 to pay a sum of Rs.10000/- towards litigation expenses.
4. The version of the 1st opposite party as follows:
The present complaint has been filed only to create a dent in the professional carrier of the 1st opposite party, which is spread more than 50 years. The complaint is a vexatious one, with untrue allegations, which has caused pain and sufferings to the opposite party. The complainant had wilfully suppressed the necessary facts, and failed to disclose true history of the case. Actually one Nachimuthu Mudaliar formed a layout over the disputed survey numbers and obtained initial DTCP approval, and the same was modified in approval No.77/81, which was ratified under Na.Ka.17179/78 M1 on 6.2.1982. As per the approved layout certain areas were earmarked for public purposes and have not been purchased for achieving the objects as per the approved layout. In the meantime, Mr.Nachimuthu died, and all his properties were in the hands of his legal heirs. When the complainant attempted to put up a fence line over the area, the owners of the layout viz. the Association initiated a suit before the Principal Munsif court, Mayiladuthurai. When the suit was initially filed, the son of the complainant was alone impleaded as sole dependent. The suit was filed on 28.10.2013. In the said suit, a petition for temporary injunction vide IA.No.607/2013 was filed, and interim exparte injunction was granted, and the suit was posted to 20.11.2013, with notice in IA to 6.11.2013. On 6.11.2013, on behalf of Pradhan Babu, the 1st opposite party entered appearance and took time to file counter till 20.11.2013. During the course of enquiry, a suitable written statement was filed specifying that he is an unnecessary party and the same was adopted as the counter to the temporary injunction petition. As per the instructions suitable endorsements were made on the application, and based on that the petition was closed on 28.11.2013. In the meanwhile the plaintiffs were advised to take steps to implead the persons who acquired interest over the suit property for an effective complete adjudication, and finally the complainant and his family were arrayed as defendants in the suit. In view of the divergent opinion expressed by the opposite party, the complainant had voluntarily taken the brief from the 1st opposite party and engaged one Mr.G.Jagatharaj as an advocate. The opposite party was completely detached from the case proceedings at the very beginning stage of the litigation. Finally it is learnt that the suit was ordered as prayed as per the order dt.13.9.2017, by concluding that the residents of the layout and members of the plaintiff association have got a right to use the area ear marked for the public purpose as per the rule of law, and therefore the defendants muchless the complainant have no independent right over the said area, so as to put up any fence line and granted the relief of permanent injunction. If there is any negligence on the part of the 2nd opposite party the same could have been raised immediately in the year 2013 - 2014 itself. But the complaint was filed only on 7.2.2017 which is highly belated and barred by limitation. Therefore, the complaint is liable to dismissed for the reason that there is no deficiency in service.
5. In order to prove the complaint proof affidavits were filed alongwith documents, which were marked as Ex.A1 to A4 on the side of the complainant. There were no documents filed on the side of the opposite parties.
6. The District Commission, after careful consideration, has come to the conclusion that there is no deficiency in service on the part of the opposite parties. The complainant himself got back the case records from the 1st opposite party. Moreover, the complainant has got the knowledge about the interim order as well as about the order passed in the impleading petition as early as in the year 2014 itself. But he has come forward with the complaint only in the year 2017. Therefore, the complaint is hit by limitation. Thus holding the complaint was dismissed. Aggrieved over the same, the present appeal is preferred by the complainant.
7. Though very many contentions have been raised, the core question that has to be decided in this case is as to whether the complainant has filed the suit within the period of two years from the date of cause of action. If the question is answered in the affirmative, then only dealing with the merit of the case will arise.
In the instant case the complainant had cited two reasoning for attributing deficiency in service on the part of the opposite parties.
The first reasoning is that the 1st opposite party had not properly enlightened the District Munsif Court, about the factual aspects of the case, which resulted in ordering Status Quo on 29.10.2013. Subsequently, the same was modified into Interim injunction. Since the 1st opposite party had not conducted the case properly, it had resulted in passing the order by the District Munsif court on 28.11.2013.
The District Commission has elaborately dealt with this point and had come to the conclusion that the complainant had not proved the deficiency in service on the part of the opposite party. We are also in concurrence with the findings of the District Commission that what kind of repercussion caused to the complainant, because of granting interim injunction by the District Munsiff Court, had not been explained properly in the complaint.
Be that as it may, even assuming for argument sake, that there is deficiency in service on the part of the 1st opposite party, the complaint ought to have been filed within two years from the date of cause of action. But the complaint had been filed only after four years, which in our opinion is only an afterthought. Therefore, the complaint is clearly barred by limitation, and is not maintainable mainly on the point of limitation. The District Commission, had elaborately held the case both on merit as well as on maintainability, in which we do not find any infirmity, warranting our interference. Accordingly, by concurring the finding of the District Commissions, the appeal deserves to be dismissed.
8. In the result, the appeal is dismissed, by confirming the order of the District Commission, Nagapattinam, in CC.No.68/2018 dt.26.2.2021. There is no order as to cost throughout.
R VENKATESAPERUMAL R. SUBBIAH MEMBER PRESIDENT INDEX : YES / NO