Ismayel Rawther vs S Krishnaraj

THIS appeal is directed against the order of the District Forum, Alappuzha in O.P. No. 151/97. The complainant is the appellant.

THE complainant came before the District Forum with an allegation that, he approached the first opposite party for advice for preferring a special leave petition before the Supreme Court against a judgment and an order of the Kerala High Court. He alleged that, his Review Petition before the Kerala High Court was dismissed on 6.10.1994. He received records on 15.10.1994. When he approached the first opposite party he was informed that, there is the second opposite party who is practicing in the Supreme Court who would move the Supreme Court in Special Leave. Accordingly, he entrusted the file with the first opposite party also gave Rs. 7,500/ - to the first opposite party and who in turn handed over the file and amount to the second opposite party; but nothing was heard till January, 1996. Later he learnt that, the Special Leave Petition was dismissed as barred by limitation. Therefore, he alleged deficiency of service and prayed for compensation of Rs. 50,000/ - and also return of Rs. 7,500/ - which he has paid as fee. The opposite parties 1 and 2 filed their version. The first opposite party maintained that, he has only suggested that the second opposite party to be engaged as the complainants Counsel. No question of service as envisaged in the Consumer Protection Act, 1986 arises in the said circumstances, and no deficiency of service can be attributed to him. The second opposite party denied the allegations against him and also questioned the jurisdiction of the Forum to entertain the complaint. He maintained, the Special Leave Petition was properly prosecuted and the same was dismissed by the Supreme Court on the ground of delay as well as on merits.

THE District Forum heard on the preliminary point and came to the conclusion that the complaint is not maintainable. It held that, there is no deficiency of service as regards the first opposite party; and as regards the second opposite party it held that, since judgment was pronounced by the Supreme Court and the second opposite party is racticing at Delhi, no cause of action arose within the jurisdiction of the District Forum. This order is under challenge in this appeal.

THE learned Counsel for the appellant submitted that, since the complainant has a case that the District Forum had jurisdiction to entertain the complaint, it was necessary to have posted the case for evidence for adducing evidence on the question of jurisdiction. Whether the complainant could have had cause of action to maintain the complaint under Section 12 of the Consumer Protection Act, 1986, in the context of the materials before the Forum is the question to be considered at this stage. The photocopy of the affidavit filed for condoning delay before the Supreme Court is produced by the appellant. What is seen is, against the decision in Land Acquisition case appeal was filed by the complainant as LA 78/91 before the High Court. For reviewing the judgment in that appeal the complainant filed a review petition R.P. 11/93. That RP was dismissed. Special leave was sought before the Supreme Court with respect to the judgment in the appeal as well as the order on the review petition. The judgment of the Supreme Court states "SLP is dismissed on the ground of delay as well as on merit". The case of the complainant is that, there is deficiency of service as the Special Leave Petition was not filed in time which is the result of negligence by the opposite parties. Consequently, according to the complainant there is deficiency of service. But for the eligibility for compensation it must be shown that on account of deficiency of service, the complainant has suffered injury either material or mental. It is for the injury suffered by the complainant on account of deficiency of service that compensation is awarded. If the special leave was filed in time what the complainant could have got was the same would be heard on merit. In the circumstances, before the Supreme Court two points arose for decision. One question regarding limitation and the other as to whether the impugned judgment and order of the High Court is liable to interfere with on merit. The Supreme Court found that, the appeal is to be dismissed on the ground of delay as well as merits. Certainly that would show, the finding is, the special leave is not sustainable on merit also. Evidently, the Supreme Court considered the special leave on merit also. That is all what the complainant could have had the special leave been filed in time. In the circumstances, unless the complainant shows that, because of the negligence of the opposite party he lost the opportunity to have his case heard on merit, he cannot maintain that he suffered injury. Here though the special leave was out of time and a petition for condonation for delay filed, the Supreme Court was pleased to consider the special leave on delay as well as on merit. Complainant cannot say that, he has suffered injury because of the alleged negligence of the opposite party. As indicated, all that he could have got if the special leave was filed in time was a hearing on the special leave petition which will involve consideration on the merit. The Supreme Court order is eloquent inasmuch as the Supreme Court dismissed the special leave both on delay as well as on merit. When that is the position, the complainant could not have had cause of action for maintaining a complaint for compensation. On that ground, we find no interference is called for in the order of the District Forum. The appeal is, therefore, dismissed. Appeal dismissed.