Dr. Nishu Kharbanda vs O.P. Lohia And Anr.

THIS revision petition has been filed by the petitioner/complainant against the impugned order dated 25.10.2012, passed by learned State Commission in First Appeal No. 896/2012, Dr. (Mrs.) Nishu Kharbanda v. O.P. Lohia & Anr., by which, while dismissing appeal, order of District Forum dismissing complaint, was upheld. Brief facts of the case are that complainant/petitioner engaged respondents/O.Ps. as her Counsel in Civil Case No. 713/2007 and paid Rs. 51,000, as fees. Complainant alleged that O.Ps. did not appear in Court in time, but appeared at 11.15 a.m. on 23.9.2011 and was not prepared for arguments on the next date of hearing, i.e. 31.10.2011. In such circumstances, complainant took file from O.Ps. and prayed for refund of balance fee. As balance fee was not paid, alleging deficiency on the part of O.Ps., filed complaint. Learned District Forum dismissed complaint at the stage of admission, against which, appeal was filed, which was dismissed by learned State Commission vide impugned order, hence, this revision petition.

HEARD learned Special Power of Attorney Holder, on behalf of petitioner at admission stage and perused record. Learned Special Power of Attorney Holder submitted that petitioner was entitled to refund of fees which was to be paid for conducting whole case for a period of 4 -5 years, and as O.Ps. have not refunded fees, learned State Commission has committed error in dismissing appeal and upholding the order of the District Forum dismissing complaint.

IT is an admitted case of the petitioner that petitioner was not satisfied with proper conducting of case by O.Ps. and petitioner took away file from O.Ps., to be conducted by some other Advocate. Petitioner herself was voluntarily not taking services of O.Ps., and in such circumstances, O.Ps. are not required to refund fees paid for conducting civil suit. There is no allegation that O.Ps. did not appear on the date fixed by the Court or not argued the matter before the Court. It is the prerogative of the Civil Court to pass any order or adjourn on any particular date and no Advocate can insist on the Court to give particular date or to pass particular order. Learned District Forum has rightly observed as under, which has been reproduced by the learned State Commission: Heard on admissibility. It is material to be pointed out here that her previous complaint filed through her S.P.A. Sh. Amar Nath Kharbanda, bearing complaint No. 160 of 2012 instituted on 1.3.2012 was rejected by this Forum, vide order dated 2.5.2012 as it was not filed by the complainant herself. Now, again the complainant has filed this complaint through herself. However, on the perusal of the facts and circumstances discussed above, no cause of action accrued in her presence as admittedly Mr. O.P. Lohia, Advocate was enraged by her alleged S.P.A. who has always been in touch with her Counsel and whatever has happened in between his S.P.A. and the lawyer and not with the complainant as she was never present at any given time/occurrence. The allegations regarding professional conduct or the alleged arrogance, etc. have been levelled by her S.P.A. and not by complainant. The fee was allegedly paid through her S.P.A. to Sh. Anuj Lohia, vide cheque No. 024891 and not to O.P. -1 Mr. O.P. Lohia, Adv., whatever are the allegations they are either regarding late appearance before the Court at 11.15 a.m. or regarding adjournment of the case or his behaviour qua S.P.A.. The adjournment or conducting of the proceedings is the sole discretion of a Court and none of the Counsels can press the Court to work in accordance with their wishes though they can plead or impress upon the Court for any proceedings. Thus, neither the proceedings of the Court nor the personal behaviour of a lawyer with his client/S.P.A. has to do with deficiency of service between a client like the complainant and her Counsel either Mr. Anuj Lohia or Mr. O.P. Lohia, Advocates. An Advocate has to represent the case of his client before the Hon''ble Courts in a way which he thinks better for his client and not required to follow each and every instructions regarding conducting of the proceedings by appearing in Court sharp at 10.00 a.m. Even otherwise, there is no case of the complainant that because of non -appearance in time of the complainant''s Counsel, her case has been dismissed or an adverse order has been passed by the Court. Moreover, whatever order was passed is a matter of merit decided by the Court and the litigant has every right to challenge it before the Hon''ble Appellate Court and cannot blame the Counsel on one pretext or the other regarding his behaviour towards the S.P.A. of the complainant or regarding non -appearance before the Court at 10 a.m. while the case is being heard at 11.30 a.m. Even otherwise it has not caused any harm to the complainant''s case like dismissed in default or indulging in false litigation unnecessarily by making allegations against even senior lawyers not only against Mr. O.P. Lohia, Advocate but also against her previous lawyer, Mr. Pankaj Bhatnagar. It appears that the complainant is not satisfied with conducting of the case by them before the Civil Court on only two hearings but there is no measuring rod to satisfy a client. A lawyer does his best at the appropriate time before the Court at appropriate stage to protect the interest of his client and there is no specific allegations of the complainant for not protecting her interest properly. Under the given circumstances getting a favourable order cannot be only considered as a good conduct of the lawyer towards his client, but overall conduct of proceedings and facts of the case are to be seen. Both the parties cannot win a case, one has to lose it but it does not mean that the party which losses the case, there is no cause of action in favour of the complainant who is not even aware of the actual facts of her own case as she is conducting her civil suit in absentia through her alleged S.P.A. and the dealing of her S.P.A. with her lawyer cannot prove the allegations of the complainant -Consumer against the O.Ps. when admittedly it is not the case of the complainant that he has not put in appearance before the Hon''ble Court at all. Moreover, the above personal behaviour and conduct of her lawyer towards the client''s S.P.A. cannot be considered deficiency of service professionally on his part under the provisions of the Consumer Protection Act, 1986. Thus, there is no cause of action, the complaint is not maintainable. Hence, it is rejected....

WE do not find any illegality, irregularity or jurisdictional error in the impugned order which calls for any interference and revision petition is liable to be dismissed at admission stage. Consequently, revision petition filed by petitioner is dismissed at admission stage, with no order as to costs.