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Judgment
E. Padmanabhan, J.—In this writ petition two Members of the Madras High Court Bar are the petitioners before this Court. The first
petitioner having died second petitioner alone is prosecuting the writ petition. Though the petitioners had prayed for the issue of a writ of
prohibition prohibiting the first respondent from prohibition proceeding with the complaint in O.P.No.652 of 1992 on the file of the first
respondent, on the ground that the provisions of the Consumer Protection Act has no application besides contended that in any event, the
controversy between the petitioner and the contesting respondent cannot be the subject matter of adjudication before the first respondent as it
interferes with the judicial pronouncement already rendered by the Division Bench of this Court under Article 226 read with Clause 15 of the
Letters Patent. It was further contended that the provisions of the Consumer Protection Act is unconstitutional. Mr. V. Selvaraj, learned counsel
for the writ petitioner took the Court through the judgment of the Division Bench where late K.T. Palpandian appeared and argued the matter. The
learned counsel also referred to the written submissions made by the said counsel before the Division Bench and contended that merely because
the Division Bench had not referred to one or more of the contentions or had not chosen to sustain the contention advanced, the same cannot give
rise to a cause of action to move a complaint before the Consumer Forum. Before the Division Bench as seen from the written submissions, many
contentions have been advanced by late K.T. Palpandian, who had appeared for the second respondent herein and number of authorities he had
cited in support of his contentions. However the Division Bench while following the later decision of the Apex Court, rejected the contentions
decided the matter on merits and passed orders. Thereafter the complaint has been made by the second respondent before the first respondent-
consumer Forum complaining deficiency in the service rendered by his counsel. M/s. K.T. Palpandian and Mr. P. Rathinadurai, who appeared in
the said appeal.
The question as to the applicability of the Consumer Protection Act was the subject matter of challenge in a batch of writ petitions before a
Division Bench of this Court as well as before the Apex Court. In Srimathi and 3 others v. Union of India, rep. by the Secretary to Ministry of law,
New Delhi, reported in 1996 W.L.R. 317, a Division Bench of this Court while following the judgment of the Apex Court in Indian Medical
Association v. V.P. Sharma and others, reported in 1996 WLR 121, wherein the validity of the enactment had also been upheld, held that the
provisions of the Consumer Protection Act can very well be applied against the members of the legal profession as well. The Division Bench in that
respect held that the Consumer Protection Act applies where complaints have been entertained complaining deficiency, even against the members
of the Bar like any other professionals. In view of the judgment of the Apex Court as well as the Division Bench of this Court referred to above,
the substantial point raised by the counsel for the petitioners fails.
However, Mr. V. Selvaraj, learned counsel for the petitioners in his usual style insisted that this Court should go into the merits of the very
complaint preferred by the second respondent, that there is no cause or basis for the complainant to move the first respondent and also contended
that this Court shall not allow the second respondent or first respondent to go into the validity of the orders passed by the competent Courts and
that too Division Bench of this Court and the judgment of the Division Bench shall not be the subject matter of examination or a complaint before
the Consumer Redressal Forum, whose jurisdiction is limited.
According to Mr. V. Selvaraj, Members of the Bar, being officers of the Court, who are not mere agents of the parties, they assist the Court in
the administration of justice and they have to sustain unimpaired dignity of the Courts by all means in their power. In this respect, Mr. V. Selvaraj,
learned counsel referred to the decision in Advocate General of Madras Vs. Amanullakhan, Advocate, Salem 1, . The learned counsel also
referred to the Full Bench judgment of the Kerala High Court in Chengan Souri Nayakam Vs. A.N. Menon, , wherein a Full Bench of the Kerala
High Court held that the counsel is not a mere agent of the client, but from the nature of his duties and relationship with the Public and the Court,
the counsel has a tripartite relationship one with the Public, another with the Court and third with the client which in a unique feature which other
professions or calling may not have such a triple duty, There is no quarrel with the enunciation of the principles and observations made by the
Division Bench of this Court as well as with the Full Bench of the Kerala High Court relied upon by Mr. V. Selvaraj, learned counsel for the
petitioners.
Mr, V. Selvaraj, learned counsel for the petitioner also referred to the decision of the Supreme Court in Bhagwati Prasad Vs. Delhi State
Mineral Development Corporation, where a three Judges Bench of the Supreme Court held that the statement of facts as recorded by a Court or
quasi judicial tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be assailed
as incorrect unless steps are taken before the same forum. It has been further held by their Lordships that it may be open to party to bring such
statement to the notice of the Court or Tribunal and to have it deleted or amended, besides holding that it is not open to the parties or the counsel
to say that the proceedings recorded by the Tribunal are incorrect, nor it is open to the parties to contend that a particular contention or course has
not been accepted or adopted by it. This legal position also is not in dispute.
However, it has to be pointed out that the question whether there is deficiency or not falls well within the jurisdiction of the first respondent-
Consumer Disputes Redressal Forum. This Court will not be justified in usurping the jurisdiction of the said Forum by examining the complaint on
merits and render a finding in this writ petition. Much could be said against the second respondent who had moved the complaint, on the very
averments set out in the complaint. Without contradiction, it could also be stated that the Division Bench decision has reached finality and this being
a judicial pronouncement in respect of the legal submissions, which were considered by the Division Bench and which had given its deep
consideration and rendered a judgment on the points, which Division Bench had thought it relevant to decide the issue. Merely because one or two
aspects are not highlighted or not been pressed or not been focused or not referred to specifically as the second respondent now sought to make
out, it has to be pointed out that such a plea is legally not permissible. This observation is made only for the limited purpose of deciding this writ
petition and the same shall not be taken as deciding the complaint itself, as any other view would amount to trenching into the jurisdiction of the first
respondent-Consumer Forum. A caution has to be expressed and with necessary caution the first respondent has to approach the issue, in respect
of judicial pronouncement of this Court. It is true such complaints may lead at times to unpleasant situation where leading Members of the Bar like
Late K.T. Palpandian or others dragged and compelled to face an unpleasant situation to defend himself for no fault on his part or even for failure
to successfully persuade the Bench to write an order. It is always the prerogative of the Bench to take a decision which is placed before it for
rendition of justice or for adjudication and it is the Bench which records reasons in support of its conclusion and definitely the members cannot
have any role except their assisting Court in discharge of its judicial decision.
Case of negligence or omissions or commissions which may establish deficiency is different from a judicial determination of the contention or
legal argument advanced in respect of a particular point or case or a legal position and the same shall not be the basis to hold that there is
deficiency in the service rendered by the Member of Legal Profession. It is true that while deciding a case, the Presiding Officer or Judges of the
Court, either a Single Bench or Division Bench or a Full Bench, decide the point of controversy by referring to the contentions advanced and such
contentions which are relevant or which may have a bearing or even restrict those for the purpose of judgment to one or more or some of the
contentions which are material for the purpose of its judicial decision. Normally, the Courts are not bound to refer to all the contentions or meet
every arguments or each and every contention which may be advanced by the Counsel, but factually they may not be relevant to the judicial
determination. Some of them may be out of frustration, some of them may not be relevant, some of them may not have a bearing and some of them
may be out of context for the issue involved and some long winding which they themselves do not understand. The crux of the matters receive
judicial determination by the Courts and such determination puts an end to the lis before the Court. Even if it is allowed to become final and if the
parties have got any grievance, they may have to take up the matter before the appellate forum. It will be far fetched for the consumer Forum or
any other Forum to examine or even scan through the judgment of competent judicial forum like the High Court or any other Court even for a
limited purpose of examining whether there had been a deficiency on the part of the Advocate, who had appeared for a particular party.
In the circumstances, while expressing a caution and certain amount of anxiety, this Court leaves the matter to be decided by the first respondent
with respect to the merits of the complaint and not expressing any opinion, much less, final opinion on the merits of the case put forward by the
second respondent.
The service of notice on the second respondent has not been completed, and in fact the writ petition had been dismissed as against the second
respondent. Had the second respondent appeared in person or through counsel, this Court would have adopted a different course. But the
absence and the default of the second respondent in effect causes much prejudice and forces the petitioner to go before the first respondent-
Consumer Forum and face the complaint. Though an application has been taken out to set aside the dismissal of the writ petition against the second
respondent, in the view of this Court and as it is not proper for it to go into the merits of the complaint it is unnecessary to set aside the dismissal
and prolong the agony of the petitioner herein. This Court makes it clear that on merits as to the alleged deficiency or other claim or complaint
which falls within the jurisdiction of the respondent No. 1, it is for the first respondent-Tribunal to decide on merits. In these circumstances, the writ
petition is dismissed with the above observations consequently, W.M.Ps are closed. No costs