Santhanam vs Kamaraj

THE complainant is the appellant. THE complainant''s case is briefly as follows: THEre was a dispute between the complainant and one Ponnusamy relating to a promissory note. THE amount that was due by the complainant to Ponnusamy was paid and settled in the presence of Panchayatars and others. But the said Ponnusamy failed to return the promissory note and gave some excuses. Only after receipt of summons from the Court, the complainant realized that the said Ponnusamy was trying to cheat the complainant by filing a suit on discharged claim. THE complainant approached Mr. Muthukrishnan, an Advocate of Thuraiyur and requested him to appear for him in the said proceeding. THE said Advocate received a sum of Rs. 500/- as fee and obtained the signature of the complainant on certain papers and Vakalat. At that time, Mr. Kamaraj, Junior Advocate of Mr. Muthukrishnan was present. Muthu Krishnan instructed Kamaraj to conduct the complainant''s case and Kamaraj namely the opposite party, a Junior Advocate under Muthukrishnan promised to do so. Two years after that an Amin from the Trichy Court came, stating that the complainant''s house is to be auctioned. Only then the complainant came to know that the case filed by the Ponnusamy had been decided ex parte. Immediately the complainant met Kamaraj at his house and accosted him. Kamaraj then said the complainant need not be disheartened and asked him to bring Rs. 1,000/- and that he would file an application for restoration of the proceeding. Accordingly the complainant paid Rs. 1,000/- and at the time certain signatures of the complainant were obtained by him on some papers. But Kamaraj failed to file any application. He was careless and negligent. Though the complainant has been meeting his Counsel quite often, the Counsel has been repeatedly saying that the complainant should not be in a hurry. THE complainant thereafter came to know that the said Advocate has joined hands with his opponent. THErefore, the complainant approached another Lawyer of Thuraiyur and asked him to file an application in his case. By that time, there was a delay of 1100 days and, therefore, the application was dismissed against which the matter has been now taken up on appeal to the High Court. THE High Court also dismissed the application. On account of the negligent act of the opposite party who did not take proper care of the case entrusted to him, the complainant has been put to loss. THErefore, the complainant prays for compensation.

IN the version filed by the opposite party, he has stated as follows: The allegations made by the complainant are not true. It is not to say that the complainant has engaged a Lawyer in O.S. No. 502/92 or a sum of Rs. 1,000/- was paid as fees by the complainant to the opposite party. It is also not true to say that the opposite party has obtained signatures of the complainant on blank papers at that time. The other allegations are denied. The senior Advocate of the opposite party, Thiru Muthukrishnan was engaged by the complainant and it is he who has filed Vakalat and also signed the written statement. The matter was set ex parte on 29.3.1993. The complainant met Mr. Muthukrishnan and informed as he was unwell, he could not attend to the Court and, therefore, he filed an application through him on 8.4.1993 whereupon ex parte decree was set aside and the matter came up for trial. Even after that in spite of letter, by the said Muthukrishnan informing that the matter has been posted for trial on 19.7.1994, the complainant did not turn up, as a result the said Muthukrishnan informed ''no instruction'' and again the suit was decreed as ex parte. Engaging a different Counsel the complainant filed an application to set aside the ex parte decree on 25.7.1997 and those applications were dismissed on 9.12.1998. The complainant thereupon took it up to the High Court which confirmed the order of the lower Court and dismissed the appeal. There was no direct contract between the complainant and the opposite party. There was no knowledge of the opposite party by the complainant. The complaint has not been filed within the time provided under law. There is no deficiency in service and, hence, the complaint may be dismissed. The lower Forum after going through the records and the versions dismissed the complaint whereupon the complaint by way of an appeal is now before this Commission.

It is not necessary for the purpose of this appeal to go into the facts of the case in O.S. No. 502/92. The gravamen of the case is thus: As a Lawyer engaged by the complainant, the opposite party failed to perform his duty and that he was careless and negligent with the result that the complainant had to suffer a decree. At the outset it has to be pointed out that the complainant himself has stated that he approached one Muthukrishnan who told him in his presence that his Junior Advocate, Kamaraj, the opposite party herein, would conduct the case on his behalf. According to him, it is the said Kamaraj who obtained the signatures in a Vakalat and certain other papers. the certified copy of the Vakalat has been produced in the Court and we find that it is accepted by Muthukrishnan and one Ashokan. The document is marked as Ex. B1. Though the Vakalat contains the names of Muthukrishnan, Kamaraj and Ashokan, we do not find any signature of acceptance of Vakalat by the opposite party. Therefore, it is clear that the opposite party cannot be stated to have been engaged either by the complainant directly or through his Senior Counsel Muthukrishnan. As regards the payment as well, we find certain contradictions in the case of the complainant. While in the complaint it is stated at that time a sum of Rs. 1,000/- was paid, in the sworn affidavit filed by him he has stated that a sum of Rs. 500/- was paid at that time. Moreover, in the complaint, there is no mention of the opposite party having received another sum of Rs. 1,000/- whereas in the sworn affidavit it is stated that the opposite party demanded Rs. 1,000/- for filing the restoration application and received the same. Nothing is mentioned about making any payment for the filing of the restoration petition by the opposite party. We find from the records produced by the opposite party that the complainant was set ex parte and an ex parte decree was passed by the Court since the written statement was not filed. It was again restored on petition and even after that the complainant did not turn up with the result the Counsel Muthukrishnan reported ''No instruction'' and he was again set ex parte and an ex parte decree was passed. When he filed an application to set aside the ex parte decree, we find that in that affidavit, he has not stated that his Counsel did not take any steps. On the other hand, in the affidavit he has stated that he was unwell, he could not attend the Court on 29.3.1993 and since the written statement was not filed on his behalf and an ex parte decree has been passed and, therefore, it should be set aside. In the affidavit filed by him after 2 years through another Lawyer, he has not made any allegations against the opposite party or had accused the Junior Advocate of Muthukrishnan for lack of diligence. We find that the complainant slept over the matter and woke up only in the year 1997 when he filed an application again to set aside the ex parte order. As there was huge delay of 1100 days, it was rejected by the Sub-Court and on appeal the same was confirmed by the High Court. Therefore, we find that at every stage there has been lack of diligence on the part of the complainant. He failed to file the written statement in time and he was set ex parte and an ex parte decree was passed. Again after it was set aside and the suit was restored, he did not appear. Even then he did not take steps to set aside the ex parte order immediately but waited for more than 1100 days. All would show that there has been wanton negligence and carelessness on the part of the complainant. There is nothing to show that the opposite party at any time had anything to do with this enormous negligence on the part of the complainant. On the other hand, the records produced would all show that the negligence and carelessness has been only on the part of the complainant. It is also to be noted that along with the application filed to set aside the ex parte order, the written statement was also filed. The said written statement is also not signed by the opposite party but by the other Lawyer. Therefore, there is nothing on record to show that there was any direct contact between the complainant and the opposite party or that the opposite party had dealt with the complainant as his ''client'' or that the complainant had dealt with the opposite party as his only ''Counsel''. On the other hand, we find that excepting the fact that he was a junior Advocate of Muthukrishnan who was engaged by the complainant, the opposite party had nothing to do with the case. Even assuming that the opposite party had something to do with the case and was entrusted to conduct the case on behalf of the complainant, we find from the records that there is no lack of diligence on the part of the Counsel who appeared for the complainant. The complainant did not file written statement in time. Therefore, he was set ex parte and again after restoration, he did not turn up and the complainant''s Counsel Muthukrishnan reported ''no instruction''. It is as though to crown it all, the complainant waited for more than 1100 days to again approach the Court to file an application to set aside the ex parte decree. The sequence of event would clearly underline the fact that there was no carelessness or negligence on the part of the opposite party and if at all, it was the litigant who was not diligent but was careless in defending himself before the Civil Court. Therefore, in such circumstances, we are of the opinion that the order of the lower Forum does not call for any interference.

IN the result, this appeal is dismissed. Since the complainant has appeared in person and the opposite party being a Lawyer failed to appear before this Commission, we deem it a fit case to direct both the parties to bear their own costs in this appeal. Appeal dismissed.