NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.1342 OF 2007
(From the order dated 14.3.07 in Appeal No.785/03 of the State Commission, Haryana)
Virender Kumar Gupta
…
Petitioner
…
Respondent
Versus
Anil Kumar Jain
BEFORE:
HON’BLE MR.JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS.VINEETA RAI, MEMBER
For Petitioner
:
For Respondent :
Mr.Mukesh M.Goel, Advocate
In-person.
Pronounced on 20th May, 2011
ORDER
PER VINEETA RAI, MEMBER
Mr.Virender Kumar Gupta, Petitioner in this case has come in
revision being aggrieved by the order of the State Consumer
Disputes Redressal Commission, Haryana (hereinafter referred to as
‘the ‘State Commission’) in favour of Anil Kumar Jain, Advocate
(hereinafter referred to as the ‘Respondent’).
The facts of the case according to the Petitioner are that he had engaged the
Respondent as his counsel who had assured the Petitioner for appearing in the court on
various dates to defend Petitioner’s case which he failed to do on a number of occasions.
Specifically, on 28.03.1998, Respondent in connivance with the other party, deliberately
and intentionally did not appear in the Execution Proceedings in favour of the Petitioner
which was therefore dismissed in default. Respondent also did not inform the Petitioner
about this for about a year and thereafter on 15.02.1999 to cover up his tracks, he filed an
application for restoration of the Execution mentioning the word “pending sine die”
implying thereby that he was not aware that execution proceedings had been dismissed in
default. According to the Petitioner, the Respondent was fully aware that there is no
provision as per law for restoration of execution proceedings and he therefore, acted
illegally and with malafide intention to harm the interests of the Petitioner and thus
misused his position as an Advocate. As a result of this, Petitioner had to suffer
irreparable loss because the Execution got dismissed in default and the litigation which
was in his favour was of no use. Petitioner further stated that he suffered a heart attack
because of this incident and was admitted to Escorts Hospital where he had to pay Rs.1
lakh for his treatment. Petitioner, therefore, filed a complaint before the District Forum
seeking compensation of Rs.1,80,000/- from the Respondent.
Respondent has denied that there was any contract of service between him and the
Petitioner and stated that it was only on 15.02.1999 that the Petitioner approached the
Respondent through telephone and requested him to file an application for restoration of
Execution Proceedings which he was informed were adjourned sine die after the appeal
filed by one Kuldeep Bakshi was dismissed by Additional Sessions Judge, Rohtak.
Respondent further stated that the Petitioner despite promising to pay him Rs.10,500/- as
fees, did not pay him a single paisa even after repeated reminders and filed a complaint
before the District Forum to avoid payment of fees. Respondent reiterated that he never
appeared on behalf of the Petitioner in any case including execution proceedings, apart
from the case mentioned on 15.02.1999, and he was thus not aware of any litigation in
which the Petitioner was involved.
The District Forum after hearing both parties dismissed the complaint by
observing that the Vakalatnama purported to have been executed in this case was not
placed on the file and the Petitioner’s contention that the Respondent deliberately did not
produce the same before the concerned court with ulterior motive lacks credibility
because Petitioner failed to produce any evidence in support of this contention. Nor was
he able to produce witnesses in whose presence the Vakalatnama was executed. Further,
there is no receipt of any fees which the Petitioner stated that he had paid to the
Respondent. The District Forum further observed that the fact that the Respondent filed
an application for restoration of execution application pending sine die proves that he did
not know that the execution had been dismissed in default earlier. The District Forum
also observed that the Petitioner could have easily called his counsel who might have
been busy in another court to make sure that his case was not dismissed in default during
execution. Had he been vigilant, he could have assured filing of a fresh Execution
Application immediately after the said dismissal. The District Forum concluded that due
to non-execution of Vakalatnama, Respondent is not covered by the definition of
consumer as laid down in the Consumer Protection Act, 1986.
Aggrieved by this order, Petitioner filed an appeal before the State Commission. The
State Commission observed that while it is a fact that the Respondent’s presence had
been recorded on certain dates during the course of the proceedings, it was not enough to
establish his engagement as an Advocate to represent the Petitioner since no Vakalatnama
had been executed between the parties. Under the circumstances, the District Forum was
fully justified in coming to the conclusion that the Petitioner had failed to prove the
execution of Vakalatnama by him in favour of the Respondent in order to represent the
Petitioner in his case/execution proceedings. There is also no proof that the Petitioner
paid the Respondent, Rs.10,500/- as fees. The State Commission, therefore, upheld the
order of the District Forum and dismissed the appeal.
Hence, the present revision petition.
Counsel for the Petitioner and Respondent were present in person and made oral
submissions.
Counsel for Petitioner contended that the learned fora below erred in concluding that a
lawyer is not covered under the Consumer Protection Act, 1986 and cited a ruling of the
National Commission in R.P.No.1392 of 2006 - D.K. Gandhi Vs. M.Mathias (decided
on 06.08.2007) wherein this Commission ruled that the services rendered by lawyers are
covered under the Consumer Protection Act, 1986. Counsel for Petitioner further stated
that it is on record that the Respondent attended the court hearings in respect of
Petitioner’s case on 09.05.1997, 19.07.1997, 20.09.1997, 15.11.1997 and 17.01.1998.
Further, Respondent intentionally did not appear on 28.03.1998 which resulted in
Execution being dismissed in default. It is also incorrect that there was no contract
entered into between the parties. In fact, the Vakalatnama was signed by the Petitioner in
the residence-cum-office of the Respondent and given to the Respondent for filing in the
court but Respondent intentionally did not file the same. Therefore, the burden of
producing Vakalatnama was wrongly placed by the fora below on the Petitioner. Further,
it is a general practice according to the Petitioner not to issue a receipt in
acknowledgement of fees paid to the Respondent which was done in a good faith.
Therefore, the appeal was wrongly dismissed.
Respondent who appeared in-person stated that there is no evidence at all that he had
been engaged as a counsel by the Respondent prior to 15.02.1999 when the Petitioner had
requested for his help in filing a restoration petition in respect of his execution case
which had been adjourned sine die. Respondent contended that being a lawyer, had he
known that the execution petition had been dismissed in default, he would not have filed
a restoration for the same presuming it to be adjourned sine dine since there is no legal
provision for doing so. Petitioner’s Execution Petition was dismissed in default due to
his own carelessness and mistake and Respondent cannot be burdened with this. He
further contended that he had never attended any court proceedings as counsel and it was
perhaps some other Anil Kumar Jain who represented Petitioner and therefore, there was
no Vakalatnama.
We have considered the oral submissions made by both parties.
The issue whether the services of a lawyer come within the purview of the Consumer
Protection Act, 1986 is squarely covered by the judgment of this Commission in
D.K.Gandhi (supra) wherein it has been confirmed that the services rendered by a
lawyer are covered under the Consumer Protection Act, 1986. In fact, in all fairness, the
District Forum in its order had also not given a categorical finding to the contrary; it had
only stated that in the absence of a Vakalatnama, the case is not maintainable under the
Consumer Protection Act. Respondent has contended before us as also the Fora below
that prior to 15.02.1999, he had never represented the Petitioner in any court proceedings
and this is further confirmed by the absence of his Vakalatnama. While it is a fact that
there is no Vakalatnama filed in evidence in this case, there is clear documentary
evidence that Anil Kumar Jain had represented the Petitioner before the Civil Court not
once but on a number of occasions prior to 15.02.1999. This is clearly stated in the court
proceedings as well as in the orders of Civil Judge, Rohtak dated 09.08.1996. Various
jiminy orders passed between 09.08.1996 to 28.03.1998, copies of which have been
placed on record, are reproduced to show that the respondent had appeared before the
Civil Judge, Rohtak on various dates.
“Present:
A. K. Jain, Advocate for respondent,
File not received. Be awaited for 5.11.96.
Sd/C.J. (S.D.)
9.8.96
Present :
Counsel for the parties.
File not received. Be awaited for 18.1.97.
Sd/A.C.J. 5.11.96
Present :
As above.
File not received. Be awaited for 15.3.97.
Sd/C.J. (S.D.)
18.1.97
Present :
As above.
File not received. Be awaited for 10.5.97
Present :
Shri A. k. Jain, Advocate for the D.H.
Shri K. L. Malhotra, Advocate for J.D.
It is submitted by Ld. Counsel for the D.H. that the copy of application
and judgment dated …. Was not received by him. Copies supplied today. Now for filing
of reply, the case is adjourned to 19.7.97. Not possible to fix up the case earlier, due to
heavy pending files and in order to adjust more order cases.
Sd/C.J. (SD) Rohtak
9.5.97
Present : Sh. A. K. Jain, Advocate for D.H.
Sh. K. L. Malhotra, Advocate for J.Ds. on the request the case stands
adjourned to 20.9.94 for filing reply to petition dated 15.3.97.
Sd/C.J. (S.D.)
19.7.97
Present :
Counsel for the parties.
Adjournment is sought. Now to come up on 15.11.97 for
reply.
Sd/-
C.J. (S.D.)
2.9.97
Present :
Counsel for the parties.
On the request, the case is adjourned to 17.1.98 for reply.
Sd/15.11.97
Present :
Counsel for the parties.
Reply not filed. Adjournment is requested for reply to
come up on 25.3.98.
Sd/-
C.J. (S.D.)
17.1.98
Present :
None
Case called several times
But none is present on behalf of the D.H.
As such the execution petition is hereby dismissed in
default. File be consigned to Record room.
Sd/-
C.J. (S.D.)
28/3/98”
This clearly shows that Anil Kumar Jain was representing the
petitioner on various dates.
Respondent’s plea before us that it was some other Anil Kumar Jain who may have
represented Petitioner lacks credibility, we note that this plea was never taken by him
earlier. Respondent who is appearing in person admitted before us that he had filed the
application for restoration which was signed by him as A. K. Jain which also go to show
that the respondent was representing the petitioner. As the execution application was
dismissed for non-prosecution, he filed the application for restoration. It also defies logic
and reason that being the Petitioner’s counsel, Respondent was not aware of the
execution proceedings and his not being present on this crucial and critical date gives
force to the contention of the Petitioner that Respondent had deliberately stayed away
with malafide intentions. Professionals like doctors and lawyers as per the traditions of
their profession are expected to serve their client’s interest to the best of their
professional competence and ability. Failure to do so is clearly a deficiency in service.
In the instant case, we regret that Respondent did not serve the interest of his client and in
fact acted against his interest because of which the long drawn out court proceedings
could not be executed in his favour. Learned fora below erred in not correctly
appreciating the clear evidence on record that the Respondent was the Petitioner’s
counsel. We, therefore, have no option but to set aside their orders and accept the
revision petition. We are of the view that in the interest of justice, Petitioner should be
awarded Rs.1 lakh as compensation for mental agony and harassment caused by
deficiency in service on the part of the Respondent. The Respondent is, therefore,
directed to pay the Petitioner Rs.1 lakh within six weeks from the date of receipt of this
order failing which it would carry interest @ 6% p.a. from the date of filing of the
complaint till date of payment.
The revision petition is disposed of accordingly.
Sd/-
.…………………………...
(ASHOK BHAN J.)
PRESIDENT
Sd/-
……………………………
(VINEETA RAI)
MEMBER