DAIVATHAN Vs. M BALACHANDRAN

JUDGEMENT

(1.) This complaint is filed under Sec.12 of the Consumer Protection Act claiming a compensation of Rs.6,15,000/-.

(2.) The allegations in the complaint are as follows: the complainants sought legal advice of the opposite party as to what legal action he had to resort to if one Kunjuraman of Krishnanilayam, Thazhathu Muri, Kochu Narayanan of Kannamathu Kizhakkethil and one Vasu S/o Karumban, Uchalathu Veedu slice down or extinguish a causeway over which the complainants have an inherited easement right from time immemorial. According to the complainant it was the sole pathway for having ingress and egress to their house and premises. The opposite party advised the complainants to file a caveat in the Civil Court of Kollam so that they could be on guard if persons mentioned above make efforts to obtain an injuction restraining the complainants of their relations or partisans from interfering with the action taken by the said Kochunarayanan and others to extinguish the said path way. The complainant got convinced about the sanity of the advice and engaged the opposite party to do so. For filing the caveat before the Civil Court, the complainants executed a Vakalathnama putting their signatures authorising opposite party to do so on 27.4.1987 and Advocate fee of Rs.1,500/- was paid to the opposite party. The opposite party instead of filing the Caveat as agreed by him misused the Vakalathnama signed by the complainants and filed O. S.451/87 before the Distt. Court, Kollam, forging the complainants' signatures against the aforesaid persons for declaration and permanent injunction to restrain the latter from interfering with the pathway. The plaint was neither signed by the complainants nor verified by them and the complainants were not informed about the filing of O. S. No.451/87. The opposite party should have taken the fingerprints of the complainants since they are illiterate. The said suit was decreed ex-parte to their detriment and irreparable injury has caused to the complainants. The path way which has a uniform width of 4 feet was abridged to 1 feet by the verdict, thus rendering the path way useless extinguishing the easement right of path way having width of 4 feet. The judgment entails undue benefit to the defendants causing irreparable injury to the complainants and the Hon'ble Court was bound to do so because of the ostensibly defective drafting of plaint either done purposefully or negligently. The tenor of the B diary in O. S. No.451/87 reveals that the opposite party acted against the interest of the complainants. Thus there is deficiency on the part of the opposite party in rendering service to the complainants. The proceedings of the Sub-Divisional Magistrate, Quilon in M. C.49/89 evidence that the material pathway had width of 4 ft. The case was conducted by the opposite party behind the back of the complainants and they were kept in the dark. The opposite party did not even apply for the attested copy of the judgment and decree of the said case in time and on being pressed obtained the same only on 16.7.94 and by the time appeal time was over. There is deficiency in service on the part of the opposite party and it is on these allegations the complaint was filed.

(3.) A version was filed by the opposite party denying the allegations. The decree was passed on 22.12.91 and the present complaint was filed after 4 years and it is hopelessly barred. The complainants are Harijans but the allegation that they are illiterate is not true. The complainant with his son Ajayakumar, a Village Extension Officer working in Kottayam District came to the office of the opposite party and requested to file a suit for declaration of easement right of prescription over a pathway leading to their house. The opposite party has not advised the complainant to file a caveat in the Civil Court as alleged in the complaint. There was specific request to file a suit for declaration of their easement right over the pathway and an injunction restraining the defendants from obstructing the pathway and from interfering with the peaceful enjoyment of the pathway. The complainants and Ajayakumar have furnished all details of the pathway including its length and width and on the basis of the information furnished by the opposite party he prepared a draft plaint and an affidavit in support of the application for temporary injunction and the same were read over to them and the contents were explained in detail. After their approval of drafts fair copies was prepared. The complainants signed the same and the Vakalath also has been executed by them for filing the case. No advance fees were collected from the complainants as alleged in the complaint. An amount of Rs.100/- alone was collected towards expenses. The allegations contained in paragraphs 4 to 7 in the complaint were denied. The application for the appointment of a Commission was also filed and Advocate Shri S. Rajeev was appointed as the Commissioner and he prepared a mahazar, report and rough plan with respect to the nature and lie of the properties including the pathway. The complainants had rendered all assistance to the Commissioner for executing the order. An amount of Rs.300/- was also paid to the Commission as Bata. The Commissioner filed report and mahazar. Those records were read over to the complainants and they admitted what is stated in the report and mahazar as true. The complainants vehemently conducted the civil suit before the Munsiff's Court for more than 4 years and obtained a decree in their favour as per the terms of the plaint. The finding of the Civil Court regarding the width of the pathway was on the basis of the Commissioner's report and mahazar in the case. When the case was listed for trial the complainants alongwith Ajayakumar came to his office and expressed their inability to depose to their case in the box due to their illhealth. At their request a petition was prepared for seeking the permission of the Court for examining Mr. Ajayakumar as an agent for the plaintiffs in this case and the petition was allowed by the Hon'ble Munsiff and Ajayakumar was examined as PW 1 and he was cross-examined by the Counsel appearing for the defendants. Two more witnesses including the Commissioner were examined on behalf of the plaintiff. The Commissioner's report and mahazar were marked as Exts. C1 and C2. The Court heard the case and ultimately basing on the report of the Commissioner decree was passed. There was no negligence on the part of the opposite party and the complainants have not sustained any injuries or inconvenience. The decree was passed and the matter was informed to the complainant. They have not requested for the attested copy of the judgment and hence not applied for the attested copy of judgment for filing appeal. The complainants are not entitled to any relief.