R A THORAT Vs. GOVINDAN GOPINATHAN

JUDGEMENT

(1.) The appellant herein is an Advocate practising in the High Court at Mumbai and is original opposite party in the Complaint No.584 of 1996 on the file of Mumbai Suburban District Forum. The respondent herein is original complainant in the said complaint, who had engaged services of the appellant to represent him in his matter before the High Court. The appellant has preferred this appeal under Sec.15 of Consumer Protection Act, 1986 (hereinafter for brevity's sake referred to as C. P. Act) against the order dated 7th November, 1998 passed by the Mumbai District Suburban Forum, holding appellant guilty of professional negligence in the conduct of said matter before the Hon'ble High Court and ordering appellant to pay a sum of Rs.20,000/- as compensation plus Rs.5,000/- as cost in the said complaint to the respondent.

(2.) Brief factual feed back- (a) (i) Complainant's litigation in Small Causes Court : the complainant/respondent in this appeal is a tenant in respect of Room No.262 situated at Ashirwad Building, Dr. Annie Besant Road, Prabhadevi, Mumbai of Smt. Anandibai Laxman Chandorkar (hereinafter referred to as landlady for brevity's sake ). The complainant had filed a suit under Bomby Rent Control Act in the Court of Small Causes, Mumbai being Suit No. RAD-5353/1985 against the landlady in respect of the said premises in which he took interim notice No.7521/1985 praying for restoration of water connection to his room. The said application was granted by the learned Judge of the said Small Causes Court by order dated 18.3.1987 directing the landlady to restore water supply on or before 31.3.1987. Against the said order, however, the landlady filed revision before the Appellate Bench of the Small Causes Court which by its order dated 23.2.1996 rejected the said revision of the landlady and confirmed the judgment dated 18.3.1987. The time stipulated for the compliance of the said order by the landlady in restoring the water supply was extended till 31.3.1996 by the Appellate Bench. (ii) In the meantime, the complainant moved application for contempt against the landlady in the Small Causes Court on 22.4.1987 for definance of order dated 18.3.1987 since the landlady failed to comply with the order on or before 31.3.1987. It is to be noted that the said contempt application dated 22.4.1987 moved by the complainant remained pending before the Court of Small Causes till 23.2.1996 when the Appellate Court of the Small Causes rejected the landlady's revision. It would, thus, be noticed that till 23.2.996 because of the stay granted by the Appellate Bench, the order dated 18.3.1987 directing the restoration before 31.3.1987 was stayed. Similarly, the proceedings for contempt adoted by the complainant against the landlady on 22.4.1987 also remained pending. (b) The landlady against the concurrent adverse finding of a Single Judge and Appellate Bench of the Small Causes, mentioned herein above, filed writ petition under Article 227 before the Hon'ble High Court challeging the findings against her. It is at that stage that the appellant appeared on the scene as an Advocate for the complainant. It is a case of the complainant that he was referred to Advocate by name Mr. Vijay Thorat, elder brother of the appellant, by a common friend. The complainant after fixing appointment somewhere in July, 1996 went to the Appellate Side of the Bar Room of the High Court to meet and contact Advocate Mr. Vijay Thorat with a letter of Mr. Kriplani, Advocate. Complainant complains that although he wanted to engage Mr. Vijay Thorat, the elder brother of the appellant as his Advocate to conduct his High Court matter against the landlady, the appellant impersonated as Mr. Vijay Thorat, Advocate and took charge of his case before the High Court. According to him, he also paid a sum of Rs.3,000/- to the appellant as his fees as also signed the Vakalatnama. The complainant is emphatic in saying that he intended and wanted to engage Mr. Vijay Thorat, Advocate as his Advocate and not the appellant. He also states that besides High Cout petition, he wanted the said Advocate even to appear for him in the conduct of contempt notice in the Court of Small Causes at Mumbai and for which he paid additional sum of Rs.2,000/- as his fees. (c) The matter before the High Court came to be decided on 6.8.1996 when the complainant was also present. When the matter was called out, the appellant appeared for and on behalf of the complainant. What transpired, according to the complainant, in the Court and account of which complainant gives in his complaint in paragraph 11 is reproduced : "paragraph 11 : It is humbly submitted that the writ petition was decided by Justice S. H. Kapadia on 6th August, 1996. The landlady has agreed that if I apply for separate meter and water connection, she will not raise any objection. Accordingly the writ petition was disposed of. However, the resondent in this petition has not opened his mouth in the Court. Instead he has not pressed for contempt which I have vigorously pursued. " (d) The complainant makes grievance that his Advocate i. e. the appellant did not open his mouth and in particular did not press for contempt proceedings which he had adopted in the Court of Small Causes against the landlady. The said act or omission amounts to deficiency in service by the appellant, negligence and lack of ordinary professional skill expected of an Advocate and hence the complaint.

(3.) Case of the appellant : (i) The appellant after service of the process in the complaint lodged by the complinant before the District Forum, Mumbai Suburban District put in his written say vehemently denying there being impersonation as alleged or otherwise. He asserted and reiterated that he contested the said writ petition before the High Court to the best of his ability and only after consulting the complainant (refer paragraph No.3 of his written say before the District Forum ). Over and above, in paragraph No.13 of his written say before the District Forum, he has mentioned all the details as to what transpired on 6.8.1996 when the writ petition of the landlady came to be disposed of by the Hon'ble High Court. It is asserted that the matter was called out in the morning session when suggestion came from the Court as by way of workable formula that the complainant would apply to the Municipal Authorities for water supply and landlady would give her consent/n. O. C. for the same. The appellant states that he got the matter kept in the afternoon session and thereafter consulted the complainant and explained him the suggestion made by the Court. The complainant accepted the suggestion and indicated his consent for such as order. (ii) Appellant, therefore, pleads that the complaint lodged against him is false, frivolous and just to harass him. He states that the complainant knew that appellant as conducting his case and in whose favour he had executed Vakalatnama. It is further stated that in accordance with the said order of the High Court, he i. e. the appellant also drafted the application for being submitted by the appellant to the concerned Municipal Authorities. It is, thereafter somewhere in December, 1996, that the complainant instituted complaint before the District Forum i. e. after about 6 months from the date of the order. (iii) According to the appellant, the complaint filed by the complainant is false, frivolous and the same should be dismissed. (f) Mumbai Suburban District Forum by its order held the appellant guilty of professional negligence in the conduct of complainant's litigation and ordered the appellant to pay to the complainant a sum of Rs.20,000/- as compensation and Rs.5,000/- towards cost. The appellant has taken exception to the said order in this appeal.