M.J. SIMON-Revision vs P.R. NAIR

WE have heard the learned Counsel appearing for the Revision Petitioner Mr. Chandramohan Nair and the respondent in person.

BRIEF facts necessary to be stated for the purpose of disposing of this revision are that Revision Petitioner filed O.P. 313/92 before the District Forum, Kottayam and an order has been passed by that Forum in that O.P. allowing the Revision Petitioner herein to realise from the opposite party in that O.P. Rs. 27,280.50 together with interest at 15% per annum. For reaping the fruits of the order that order was got transmitted for execution to City Civil Court, Bangalore under the provisions of Consumer Protection Act, 1986 i.e. before the amendment of Consumer Protection Act, 1986 by Consumer Protection (Amendment) Act, 2002. The revision petitioner engaged the respondent in this revision as his lawyer for prosecuting the execution petition filed before the City Civil Court, Bangalore and the execution petition was dismissed as withdrawn by the Execution Court on the ground that the matter was settled between the parties. The revision petitioner was not satisfied with the settlement (not satisfied with the amount received by him as a result of the settlement) Rs. 3,000 was only received by him as a result of settlement. Alleging that the respondent herein who appeared for the decree-holder (revision petitioner herein) before City Civil Court, Bangalore was not given authority to settle the matter and make a statement before the execution Court on behalf of him i.e., to allow him to withdraw the execution petition the revision petitioner herein filed O.P. 1085/95 claiming compensation from the respondent alleging deficiency in service. After hearing both the parties the lower Forum passed an order holding that revision petitioner had suffered no loss due to the act of the respondent herein. It also held that Advocate fee paid to the respondent herein by the revision petitioner was neither excessive nor in excess of fee prescribed under provisions of the Advocates Fees Act (lower Forum based its conclusion relying on the fact that decree-holder in the EP admitted that the "EP entrusted to the opposite party was against non-existing firm" and that "the petitioner agreed that he received Rs. 3,000 from the opposite party". Consequent on recording such a finding the lower Forum dismissed the complaint O.P. 1085/95. Challenging that order passed by the lower Forum an appeal had been preferred before this commission as Appeal 1478/96 and the appeal also was dismissed conforming the order passed by the lower Forum. Against the order of dismissal of the appeal the revision petitioner herein preferred before the National Commission Revision Petition 243/98 and the National Commission passed order setting aside the order passed by the lower Forum and also the order passed in appeal by this Commission. The order passed by the National Commission is reproduced below: "It is the complainant who is the petitioner before us. His complaint was against the respondent Advocate. Alleged deficiency in service was that he made some statement on his behalf for with-drawal of the execution proceedings though he was not authorised for the same. It is stated that in a complaint filed by the petitioner against Man-Jog Group of Companies alleging deficiency in service he got a decree by way of compensation for Rs. 27,280.50 with interest @ 15% per annum. That was ordered by the District Forum vide its order dated 24.7.1992. For execution of that order, case was transferred to City Civil Court, Bangalore. It is stated that there were many similarly situated persons whose cases were similarly transferred to the City Civil Court for execution. It appears that an association was formed by all these persons and Mr. P.R.P. Nair, respondent lawyer was entrusted the work to have the cases transferred to Bangalore City Civil Court. It is the contention of Mr. Prashant P. learned Counsel for the respondent that no statement was made by the respondent on behalf of the petitioner/complainant for with-drawal of the execution proceeding. It is also submitted by Mr. Prashant that due to the effort of the respondent, complainant has got Rs. 3,000 only against his claim of Rs. 34,000. It is not acceptable to us that as to how a Counsel can make a statement on behalf of the petitioner for withdrawal of the execution proceeding from whom he has not got any power of attorney. Accordingly, we set aside the order of the District Forum and the statement and the matter is reverted back to the District Forum for execution of its order as aforesaid for the balance amount as it is stated that the petitioner has already received Rs. 3,000 from the Man-Jog Group of Companies. The Revision Petition is disposed of in above terms."

The National Commission upset the order passed by the lower Forum in O.P. 1085/95 and remitted the matter back to the District Forum for execution of its order as aforesaid for the balance amount as it is stated that the petitioner has already received Rs. 3,000 from the opposite party in the 1st O.P. (O.P. 313/92 on the file of CDRF, Kottayam) filed by the revision petitioner. Thus it could be seen from the order passed by the National Commission that it has not granted any relief against respondent herein and it is clear from the order passed in that revision, the revision petitioner is to proceed against the opposite party in O.P. 313/92 for realisation of the amount ordered to be paid by that party to the revision petitioner together with interest at 15% per annum less Rs. 3,000 received by him. Without preferring any appeal or revision as the case may be against the order passed by the National Commission before the Hon''ble Supreme Court, the revision petitioner has chosen to file application before the District Forum to restore the O.P. 1085/95.

NO direction has been given by the National Commission in the order passed in the revision preferred by the Revision Petitioner herein, that the revision petitioner is entitled to move a petition to restore the O.P. 1085/95 and to get it restored. NO order has been passed by the National Commission directing the Forum below to restore the O.P. 1085/95 dismissed by the District Forum and to dispose it of in accordance with law. The order of National Commission has become final and is binding on the revision petitioner. Thus it is clear that no order has been passed by the National Commission directing the Forum below to consider afresh the complaint filed by the revision petitioner against the respondent herein. At the best we can hold that the order passed by the District Forum in O.P. 1085/95 was set aside by the National Commission in the revision preferred before it. NO order adversely affecting the respondent herein has been passed by the National Commission in the revision filed before it. We are not aware of any provision in the Consumer Protection Act enabling the revision petitioner to get restored O.P. 1085/95. In our view the lower Forum rightly dismissed the application moved as I.A. 63/2003 before it for restoring the O.P. 1085/95. So we find no illegality or material irregularity in exercising jurisdiction by the lower Forum. We cannot hold that Forum below exercised jurisdiction not vested in it by law or it failed to exercise jurisdiction so vested or acted in the exercise of jurisdiction illegally or with material irregularity. NO case is made out to invoke the revisional jurisdiction of this Commission and, therefore, the revision is liable to be dismissed. In a recent decision rendered by the Apex Court Jineshwardas (D) by LRs. and Ors. v. Smt. Jagrani & Anr., VI (2003) SLT 91=2003 AIR SC 5385, the Apex Court laid down the law thus: "It has always been universally understood that a party can always act by his duly authorized representative. If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can Counsel, possessed of the requisite authorization by Vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the Legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated."

IT is submitted before us by respondent that Vakalatnama executed by the revision petitioner authorised him to settle and compromise the matter. In the result the revision is dismissed on the ground no jurisdictional error has been committed by the Forum below. Revision Petition dismissed.