R.A.THORAT vs GOVINDAN GOPINATHAN

THE appellant herein is an Advocate practising in the High Court at Mumbai and is original opposite party in the Complaint No. 584 of 1996 on the file of Mumbai Suburban District Forum. THE respondent herein is original complainant in the said complaint, who had engaged services of the appellant to represent him in his matter before the High Court. THE appellant has preferred this appeal under Section 15 of Consumer Protection Act, 1986 (hereinafter for brevity''s sake referred to as C.P. Act) against the order dated 7th November, 1998 passed by the Mumbai District Suburban Forum, holding appellant guilty of professional negligence in the conduct of said matter before the Hon''ble High Court and ordering appellant to pay a sum of Rs. 20,000/- as compensation plus Rs. 5,000/- as cost in the said complaint to the respondent.

BRIEF factual feed back- (a)(i) Complainant''s litigation in Small Causes Court : The complainant/respondent in this appeal is a tenant in respect of Room No. 262 situated at Ashirwad Building, Dr. Annie Besant Road, Prabhadevi, Mumbai of Smt. Anandibai Laxman Chandorkar (hereinafter referred to as landlady for brevity''s sake). The complainant had filed a suit under Bomby Rent Control Act in the Court of Small Causes, Mumbai being Suit No. RAD-5353/1985 against the landlady in respect of the said premises in which he took interim notice No. 7521/1985 praying for restoration of water connection to his room. The said application was granted by the learned Judge of the said Small Causes Court by order dated 18.3.1987 directing the landlady to restore water supply on or before 31.3.1987. Against the said order, however, the landlady filed revision before the Appellate Bench of the Small Causes Court which by its order dated 23.2.1996 rejected the said revision of the landlady and confirmed the judgment dated 18.3.1987. The time stipulated for the compliance of the said order by the landlady in restoring the water supply was extended till 31.3.1996 by the Appellate Bench. (ii) In the meantime, the complainant moved application for contempt against the landlady in the Small Causes Court on 22.4.1987 for definance of order dated 18.3.1987 since the landlady failed to comply with the order on or before 31.3.1987. It is to be noted that the said contempt application dated 22.4.1987 moved by the complainant remained pending before the Court of Small Causes till 23.2.1996 when the Appellate Court of the Small Causes rejected the landlady''s revision. It would, thus, be noticed that till 23.2.996 because of the stay granted by the Appellate Bench, the order dated 18.3.1987 directing the restoration before 31.3.1987 was stayed. Similarly, the proceedings for contempt adoted by the complainant against the landlady on 22.4.1987 also remained pending. (b) The landlady against the concurrent adverse finding of a Single Judge and Appellate Bench of the Small Causes, mentioned herein above, filed writ petition under Article 227 before the Hon''ble High Court challeging the findings against her. It is at that stage that the appellant appeared on the scene as an Advocate for the complainant. It is a case of the complainant that he was referred to Advocate by name Mr. Vijay Thorat, elder brother of the appellant, by a common friend. The complainant after fixing appointment somewhere in July, 1996 went to the Appellate Side of the Bar Room of the High Court to meet and contact Advocate Mr. Vijay Thorat with a letter of Mr. Kriplani, Advocate. Complainant complains that although he wanted to engage Mr. Vijay Thorat, the elder brother of the appellant as his Advocate to conduct his High Court matter against the landlady, the appellant impersonated as Mr. Vijay Thorat, Advocate and took charge of his case before the High Court. According to him, he also paid a sum of Rs. 3,000/- to the appellant as his fees as also signed the Vakalatnama. The complainant is emphatic in saying that he intended and wanted to engage Mr. Vijay Thorat, Advocate as his Advocate and not the appellant. He also states that besides High Cout petition, he wanted the said Advocate even to appear for him in the conduct of contempt notice in the Court of Small Causes at Mumbai and for which he paid additional sum of Rs. 2,000/- as his fees. (c) The matter before the High Court came to be decided on 6.8.1996 when the complainant was also present. When the matter was called out, the appellant appeared for and on behalf of the complainant. What transpired, according to the complainant, in the Court and account of which complainant gives in his complaint in paragraph 11 is reproduced : "Paragraph 11 : It is humbly submitted that the writ petition was decided by Justice S.H. Kapadia on 6th August, 1996. The landlady has agreed that if I apply for separate meter and water connection, she will not raise any objection. Accordingly the writ petition was disposed of. However, the resondent in this petition has not opened his mouth in the Court. Instead he has not pressed for contempt which I have vigorously pursued."

(d) The complainant makes grievance that his Advocate i.e. the appellant did not open his mouth and in particular did not press for contempt proceedings which he had adopted in the Court of Small Causes against the landlady. The said act or omission amounts to deficiency in service by the appellant, negligence and lack of ordinary professional skill expected of an Advocate and hence the complaint. Case of the appellant : (i) The appellant after service of the process in the complaint lodged by the complinant before the District Forum, Mumbai Suburban District put in his written say vehemently denying there being impersonation as alleged or otherwise. He asserted and reiterated that he contested the said writ petition before the High Court to the best of his ability and only after consulting the complainant (refer paragraph No. 3 of his written say before the District Forum). Over and above, in paragraph No. 13 of his written say before the District Forum, he has mentioned all the details as to what transpired on 6.8.1996 when the writ petition of the landlady came to be disposed of by the Hon''ble High Court. It is asserted that the matter was called out in the morning session when suggestion came from the Court as by way of workable formula that the complainant would apply to the Municipal Authorities for water supply and landlady would give her consent/N.O.C. for the same. The appellant states that he got the matter kept in the afternoon session and thereafter consulted the complainant and explained him the suggestion made by the Court. The complainant accepted the suggestion and indicated his consent for such as order. (ii) Appellant, therefore, pleads that the complaint lodged against him is false, frivolous and just to harass him. He states that the complainant knew that appellant as conducting his case and in whose favour he had executed Vakalatnama. It is further stated that in accordance with the said order of the High Court, he i.e. the appellant also drafted the application for being submitted by the appellant to the concerned Municipal Authorities. It is, thereafter somewhere in December, 1996, that the complainant instituted complaint before the District Forum i.e. after about 6 months from the date of the order. (iii) According to the appellant, the complaint filed by the complainant is false, frivolous and the same should be dismissed. (f) Mumbai Suburban District Forum by its order held the appellant guilty of professional negligence in the conduct of complainant''s litigation and ordered the appellant to pay to the complainant a sum of Rs. 20,000/- as compensation and Rs. 5,000/- towards cost. The appellant has taken exception to the said order in this appeal.

We have heard, at considerable length the Advocates for the appellant as also representative of the complainant-respondent. We also perused the memo of appeal, impugned order as also scrutinised the related record being accompaniment to the Appeal Memo, such as, complaint, appellant''s written say as also affidavits, etc. put in by the parties before the District FORA. We also examined the copies of proceedings before the High Court and Court of Small Causes, Bombay between complainant and his landlady, including orders passed by the High Court as also by Court of Small Causes, Bombay.

BY and large, learned Advocate for the appellant as also representative of the complainant made submissions, on the basis of their pleadings, briefly adverted to herein above. As is apparent, the crucial and decisive point thast centres around is as to whether the appellant is negligent and has committed gross professional misconduct in not representing the complainant''s case before the High Court and Small Causes Court, Mumbai, as an Advocate and in any way acted detrimental to the interet of the complainant. It is to be seen whether there is sufficient evidence to establish professional negligence of the appellant Advocate and deficiency of service in the conduct of Court cases of the complainant as has been alleged.

BEFORE we proceed to consider issue as raised in para 6 above, it is though appropriate, in the context of professional negligence or misconduct of an Avocate, as alleged in the case in hand, to highlight and appraise the duty and responsibility cast upon the Advocate when any litigant engages services of an Advocate to conduct his case before the Courts of Law. Advocate, when he accepts the brief from the litigant to represent in the Courts and conduct the case, as also receives his professional fees, he i.e. Advocate, it would be proper to say, that he offers his services to the litigant for consideration. In the case in hand, as admitted by the appellant himself having received and accepted professional fees (Refer para 3 of appellant''s written statement before the District Forum), the complainant within the meaning of definition of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 would become a consumer. At this juncture, one aspect would need clarification. There is independent statute, namely, the Advocates Act, 1961 under which machinery in the forms State Bar Councils and All India Bar Council are created, who are empowered and authorised to take cognizance of professional misconduct relating to legal practitioners and if found guilty upon inquiry, take action thereunder. Reference be made to Sections 35 & 37 of the said Act. Notwithstanding the said provision, District Forum and State Commission shall be competent to entertain such complaints against the Advocate in view of provisions contained in Section 3 of the C.P. Act, which lays down : "Act not in derogation of any other law -The provisions of this Act (i.e. C.P. Act, 1986) shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

(Emphasis supplied) Furthermore, in the cases of medical negligence, concerning Doctors, who are also professionals, like Advocates, the Apex Court in number of its pronouncements has posited that services rendered to a patient by medical practitioners, except where the Doctors render services free of charges to every patient or under a contract of personal service, would fall within the ambit of "service" as defined in Section 2(1)(o) of C.P. Act (Refer decisions in Indian Medical Association v. V.P. Shantha & Ors., and Creported, respectively in III (1995) CPJ 1 (SC)=AIR 1996 S.C. P. 550 and I (1998) CPJ 1 (SC)=III (1998) SLT 684=JT 1998 (2) S.C. P. 620, By analogy, the same principle would apply and should be extended to the Advoates whose services litigants engage for consideration. In the case in hand, complainant has engaged, as material shows, services of the appellant, for consideration in the conduct of his case before the High Court. Our attention is drawn to the decision of the Kerala State Consumer Disputes Redressal Commission in Complaint No. 101 of 1991, S. Mahendran v. Chirayinkil C.P. Bhudrakumar, decided on 30th September, 1992 and reported in 1992 (2) C.P.R. page 667, wherein Advocate was held negligent and was ordered to pay compenstion to his client complainant, who had taken recourse to C.P. Act, 1986. It has persuasive value.

IT is to be noted that in Indian Medical Association''s case (supra), there was specific contention raised that in view of specific provisions contained in Medical Council Act, Medical Practitioners were subject to disciplinary control of Medical Council of India and/or State Medical Council. However, this plea was rejected by the Supreme Court positing that same is no solace to the person who has suffered due to their (i.e. of Doctors) negliegence and the right of such person to seek redress under C.P. Act is not affected.

IT is further pertinent to note that in the same judgment (i.e. Indian Medical Association''s case), the Apex Court makes reference to the well known treaty. Professional Negligence by Rupurt M. Jackson and John L.Powell and concur with a view expressed by the said authors in the matter of professional liabilities of professionals like, Doctors, Architects, Barristers, Solicitors, etc. In para 23 of the said judgment, the Apex Court makes the position luminously crystal, which is as under : "In the matter of professional liability porfessions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man''s contoral. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (See : Jackson & Powell (supra), paras 1.04, 1.05 and 1.06). Immunity from suit was enjoyed by certain professions on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, Barristers were enjoying complete immunity but now even for them the field is limited to work done in Court and to a small category of pre-trial work which is directly related to what transpires in Court. (See : Jackson & Powell (supra), para 1.66; Saif Ali v. Sidney Mitchell & Co; Rees v. Sinclair; Giannarelli v. Wraith. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care."

(Emphasis supplied). IT would show that lawyers as professional are not immune from liability. Having thus held that the Advocate whose services are engaged by a litigant in conduct of his case before Court of Law will be amenable to the jurisdiction of Consumer Fora under C.P. Act for his professional negligence in conduct of the Court matter, the question is as to whether in the matter in hand the complainant proved and established the fact of the appellant being so negligent in the conduct of his Court matter so as to justify grant of compensation and cost as awarded by the District Forum vide its impugned judgment in this appeal.

Before we consider the material on record of this case, it would be necessary to advert to the parameters under which the negligence of the professionals, like Advocate, is to be established. This would not detain us any longer. For, the Supreme Court in its decisions in the case of (i) P.D. Khardikar v. Bar Council of Maharashtra, AIR 1984 S.C. 110; (ii) R.D. Bhatia v. Rajinder Kaur, (1996) 6; Supreme Court Cases, page 627; (iii) V.K. Kumaravelu v. The Bar Council of India & Ors., AIR 1997 SC. P. 1014; and (iv) Prahlad Saran Gupta v. Bar Council of India and Ors., II (1997) CLT 127 (SC)=AIR 1997 S.C. page 1338, in cases directly concerning professional misconduct and negligence of Advocates, in the cases which were under inquiries under Section 35 of Advocates Act, 1961, have laid down the criteria for establishing the allegations of misconduct and negligence against the Advocates in the conduct of cases of their clients. In fact in Bhatia''s case (supra), the allegations against the Advocate proceeds almost on the similar lines as in case in hand. The Supreme Court in its judgment in P.D. Khardikar''s case (supra and which is earliest) had laid down. "There is a world of difference between the giving of improper legal advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.............".

This ratio has been reiterated in subsequent 3 decisions (supra) by the Apex Court. In fact, in Prahlad''s case (supra) Supreme Court has held that charge of professional misconduct is quasi-criminal and requires proof beyond reasonable doubt. This is so because the nature of job and duty attached to the legal professional as he owes duty and accountable to the Court as he is regarded as an officer of the Court. He owes duty to his client, to his profession, to the opposite party and also to the community at large being actively associated in the process of administration of justice.

IN the case herein, there are two specific grievances of the complainant against his Advocate - firstly, appellant did not represent his case before the High Court properly and secondly, did not attend to the proceedings in Contempt before the Small Causes Court and which according to the complainant amounted to professional negligence. However, as we would point out, by reference to the material on record, there is no merit whatsoever in complainant''s said grievances. First of all, it would be necessary to notice the exact order that High Court passed on 6th August, 1996. The relevant operative part of the order is reproduced herein below : "Learned Counsel for the petitioner (L/L) states that if tenant applies for separate water connection L/L will not raise objection to separate water connection and meter. Son of L/L is present in Court. Respondent is directed to make application to the Bombay Municipal Corporation. On such application the Bombay Municipal Corporation will direct water connection in accordance with law. N.O.C. is given by L/L without prejudice to his rights and contentions. Respondents will have to bear expenses. All other directions qua the other tenants allegedly obstructing the respondent herein will stand. Accordingly writ petition is disposed of."

Therefore, if one reads the said order, the main relief claimed by the complainant of restoration of water connection in his room is considered and granted by the High Court taking precaution that his landlady gives her N.O.C. for the same. Further, there is no reference to the contempt proceedings. IN view of this obvious position, it would be noticed that there is no substance and justification in the stand and stance of the complainant. Apart therefrom, it would be worth noticing how the appellant in his written say before the District Forum has recounted as to what transpired and how the Hon''ble High Court passed the said order. Curiously, we do not find even a whisper of such relevant and material fact in the impugned order of the Forum, which has completely overlooked and/or ignored the same. In para 13 of his written statement, filed in August, 1997, this is how the appellant recounts the happenings : "I say that the above writ petition came for admission before His Lordship Justice Shri S.H. Kapadia on 6th August, 1996. I say that after hearing the arguments advanced by me as well as the Advocate for the petitioner, His Lordship suggested to me that since he is inclined to admit the writ petition and also grant interim relief as prayed therein, the complainant would be without any water supply as per his claim till the final disposal of Writ Petition No. 2716 of 1996. In the said circumstances, His Lordship enquired with me as to whether the complainant is ready to apply for the separate water connection in respect of the room in his occupation. I say that as I had no instructions from the complainant at that time, I requested the matter to be kept back at 2.45 p.m. on the same day. I say that during the lunch time, I specifically asked the complainant as to whether he is agreeable to the suggestions given by His Lordship Justice Shri Kapadia. I say that the complainant specifically told me that he has no objection for applying for water connection provided the landlady does not create any problem for him. I say that thereafter the above writ petition was again called out at 2.45 p.m. on 6th August, 1996 and I informed the Hon''ble Court the apprehension of the complainant regarding any possible interference by the landlady, in obtaining the water connection. I say that thereafter His Lordship Justice Mr. Kapadia enquired with Shri Y.S. Jahangirdar, the Advocate now elevated as Justice of the Hon''ble High Court who was appearing with Advocate Mr. Sthalekar for the petitioner. I say that Shri Y.S. Jahangirdar, now elevated as Justice of Hon''ble High Court, Mumbai enquired with the son of the petitioner, who was present in the Court and he assured that no objection will be raised by the petitioner/landlord, in the event the complainant applies and/or obtains a separate water connection. I say that in view of the statement made by Mr. Y.S. Jahangirdar, Advocate on behalf of the petitioner, His Lordship passed an order on the same day disposing of the Writ Petition No. 2716 of 1996 and has passed order on which the complainant has relied upon in the present case. I further say that in view of the complainant agreeing to apply for the water connection in respect of suit premises, His Lordship opined that the contempt application pending in the Small Causes Court has become infructuous, and, therefore, enquired with me whether I wish to pursue the same. I say that after taking instructions from the complainant that he does not wish to pursue the contempt application pending in the Small Causes Court at Mumbai, I made a statement to the Hon''ble High Court that I did not wish to press the contempt application and the same was recorded by the Hon''ble High Court."

IT is most significant to note the complainant has not at all dealt with the said statements of the appellant reproduced herein above either before the District Forum or before us. For that matter, he has not denied or controverted the same. Not a word is stated about it. IT is somewhat baffling and perplexing that even District Forum, for the reasons which are unfathomable, has failed to consider it. In fact it has completely overlooked and ignored it. The said explanation of the appellant goes to the root of the matter. IT is indeed curious and also shocking and disturbing that the District Forum proceeded in perfunctory and casual manner, without carefully considering and appreciating the material facts which are glaring and clinching the issues and which strongly militate against the merits of the grievances of the complainant against the appellant. We are constrained to say something over the manner in which the District Forum has proceeded to dispose of the complaint in question in casual and perfunctory manner which clearly reveals that it has not cared to notice and appreciate most vital and relevant material placed before it. Its judgment and so-called findings lack clarity and is devoid of coherence. It lacks consistency. It is a classic instance as to how District Forum, enjoying status, position and power similar to District Forum, has conducted itself, unbecoming to its onerous position. Even no care is taken to use proper grammatical language. Indeed it is very sorry state of affair and disturbing too. Especially so when the Apex Court in its recent judgment in the case of Fair Air Engineers Ltd. & Ors. v. N.K. Modi, reported in III (1996) CPJ 1 (SC)=(1999) 6 Supreme Court Cases page 385, has held that the Forums funtioning under Consumer Protection Act, 1986 exercise judicial authority and have all trappings of Civil Courts and its Presiding Officers - President as also Members are in par with Judges. Further, under Consumer Protection Act, 1986, these Forums enjoy and possess wide powers and deal with and decide claims of the parties, under different statutes, involving heavy stakes. It is necessary that such Forums conduct in responsible manner and be circumspect in processing claims before them. It is imperative that they apply their minds to the facts and material before it carefully and scrutinise and consider the same in arriving and reaching conclusive findings. They will refrain from being casual and perfunctory. It should be borne in mind and remembered that the main purpose of administration of justice is to create in the community a feeling of satisfaction by doing justice. There are two distinctive functions of the Forums-first to find out, scrutinise and determine the facts and material before it and then apply the law. The ultimate decision should indicate the reasons on which it is based. Recording of reasons in a judicial or quasi-judicial matter is imperative and failure to do so would vitiate the final decision. A litigant is entitled to a full and reasoned judgment stating the Courts appreciation of facts and the reasons for coming to the conclusions. We may quote what the Apex Court has luminously laid down in this respect in the case of Siemens Engineering and Manufacturing Co. v. Union of India, reported in AIR 1976 SC page 1785 : "A party who approaches the Government in exercise of a statutory right, for adjudication of a dispute is entitled to know atleast the official designation of the person who has considered the matter, what was considered by him, and the reasons for recording a decision against him. To enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. If the officer acting on behalf of the Government chooses to give no reasons, the right of appeal will be devoid of any substance. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."

TO conclude, we hold that the complainant-the respondent herein has not established his case of professional misconduct and negligence against the appellant. Consequently, the findings rendered by the District Forum cannot be sustained and the same as also its order is set aside by allowing the appeal.

WE direct the Registry of this Commission to forward copies of this judgment to District Forum, Dadar as also to all the Forums in this State, especially highlighting observations herein appearing in paras 13 to 19 for their information and guidance. Order (i) The appeal is allowed and Order dated 7.11.1998 passed by the Consumer Disputes Redressal Forum, Mumbai Suburban District in C. No. 584/96 is set aside and the said complaint of the complainant is dismissed. (ii) As far as this appeal is concerned, the parties shall bear their own cost. (iii) The office is directed to furnish copies of judgment to the parties on 27.3.2000. (iv) The amount deposited by the appellant in the District Forum, B.S.D. as per interim order to be refunded to him after a period of appeal over i.e. after 11.5.2000. Appeal allowed.