SAMIKSHA BHATTACHARYA, MEMBER

Today is fixed for passing necessary order.

Upon hearing the Ld. Advocate for the Appellant /Complainant (hereinafter referred to as ‘Complainant’) and on perusal of the record,  I find that  the appeal has been filed within time. Let the appeal be admitted and registered.

The instant appeal has been directed by the Appellant/Complainant against  the order no. 7 dated 21.06.2022 passed by the Ld. DCDRC, South 24 Parganas in CC/151/2021.

The Ld., DCDRC, South 24 Parganas dismissed the case for non prosecution.

On the date of admission hearing, Ld. Advocate for the appellant has submitted that the Ld. Advocate who was appearing on behalf of the Complainant before the Ld. District Commission failed to take necessary step and  did not appear on two consecutive dates which was beyond the knowledge of the complainant. The Complainant has no knowledge about the date which was fixed by the Ld. District Commission. The Ld. Advocate did not inform her about the dates. The Complainant has no knowledge about the show cause and, therefore, Ld. Advocate appearing for the complainant/Appellant before this Commission has prayed for setting aside the aforesaid order by providing an opportunity to contest her case when it was dismissed due to non prosecution for no fault of her.  In this connection, Ld. Advocate appearing for the complainant has mentioned that in several judgements passed by the Hon’ble Apex Court, Hon’ble National Commission and Hon’ble High Court where it was held that “ an innocent litigant should not suffer  for default of his chosen Advocate”.   In this connection, Ld. Advocate has cited the judgement passed in Smt. Lachi & Others –vs- Director of Land and Records & Others ( AIR  1984 SC 41 ).  

On perusal of the record, I have observed that the Complainant did not take any step on 21.06.2022 and remained absent on two consecutive dates. By filing the affidavit , the complainant has stated that her Ld. Advocate did not inform her that  he could not appear on two consecutive dates before the Ld. District Commission. The Complaint Case has been filed on 10.12.2021. Thereafter, the complainant remained present on 23.12.2021 and on 31.01.2022 and 11.03.2022. From the  order dated 31.01.2022 , I have observed  that notice was sent to OPs/Respondents No. 1,2 & 3 but surprisingly the direction upon OPs/Respondents No. 1,2 & 3 for filing written version has not been given.  On the next date i.e. on 11.03.2022 , the complainant filed track report in respect of Ops No. 4 & 5 which showed that the S/R is complete in respect of OPs No. 4 & 5   but on that day also next date has been fixed for S/R of OPs/Respondents No. 4 & 5 but the direction upon OPs/Respondents 1,2 & 3 for filing written version has not been given by the Ld. DCDRC.

Though the Ld.  Advocate for the Complainant was not regular in appearing before the Ld. DCDR Commission I am  in the view that the litigant / Complainant cannot be suffered on the part of the mistake of her Ld. Advocate. Moreover, the reason for non-appearance  as given by the Complainant is due to non appearance of her Ld. Lawyer.  The reason for non appearance of her Ld. Lawyer has not  been informed to her.  I am  in the view that  the complainant should be given an opportunity such that her case would be adjudicated on merit.  In this connection, we can cite  the judgment passed by Hon’ble Supreme Court in   Rafiq & Anr.  Vs Munshilal & Anr.  where Hon’ble Apex Court  has observed that “ the disturbing feature of the case that under our present adversary legal system where the parties generally appear though their advocates, the obligation of the parties is to select his advocate, brief him,  and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court’s proceeding. After engaging lawyer,  the party may remain supremely confident that the lawyer will look after his interest. At the time of healing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the  High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. ..............what is the fault of the party who having done everything in his power  and expected of him, would suffer because of the default of his Advocate... The problem that agitates us is whether it is proper that the party should suffer for the  inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no  material for ascertaining that aspect of the matter.........however,  we cannot be a party to an innocent party suffering injustice merely because of his chosen Advocate defaulted”.

Though the act stipulates a period  for disposing of a complaint  but the complaints cannot be disposed of  due to non-availability of resources and infrastructure. In this regard, we can cite the judgement passed by the Hon’ble Apex Court in Civil Appeal No. 4767 of 2019 (Vibha Bakhi Gokahle and Anr. Vs  M/S Gruhaship Constructions & Ors.) in which Hon’ble Apex Court has observed that “the ground for rejection of complaint is technical and in disregard of the requirement of the substantial justice”.  The Hon’ble court has also observed that “ it is harsh to penalise a bonafide litigant for marginal delays  that may occur in judicial process. The Consumer Fora  should bear this in mind  so that the ends of justice are not defeated”. In this case, though the delay was not marginal but in  the instant case, where OPs/Respondents No. 1,2 & 3 did not appear after receiving the notice and S/R has not been completed in respect OPs/Respondents No. 4 & 5, the complainant should be given an opportunity to contest the case as per law. 

As per forgoing discussion we hold that it would be just and proper to give the complainant/appellant an opportunity to proceed with the case to ventilate her grievance. The complaint should not be dismissed for default   due to mere technical reason since C.P. Act is a beneficial legislature. In this connection, I can cite the judgement passed in Sanjoy Kr. Gupta –vs-  Kebal Kishan Baran and Ors. reported in 2014(3) CPR 236(NC) where the Hon’ble National Commission  held that Consumer Forum is primarily meant to provide protection to the  consumers and their claims cannot be defeated on technical ground.

Thus, the impugned order  no. 7 dated 21.06.2022 is set aside. The Ld. DCDR Commission, South 24 Parganas is directed to restore the complaint case being No. CC/151/2021  to  its original file and  number and  the Ld. DCDR Commission is requested to proceed with the case as per law without giving any unnecessary adjournments to either of the parties.

A caution is hereby given to the Appellant/Complainant to appear before the Ld. DCDRC diligently to conduct her case further.

Accordingly, we allow the appeal and set aside judgement/ order dated 21.06.2022  passed by Ld. DCDR Commission, South 24 Parganas for finality of litigation as well as to give better service to the consumer.

The Complainant/appellant is directed to serve the  notice upon the OPs /Respondents  for proper information  alongwith this order.

Fix 14.09.2022 for appearance of the parties before the concerned DCDR Commission  for receiving further direction.

The complainant is directed to file affidavit of service upon all the OPs  before the concerned DCDR Commission on the aforesaid date.

Let a  copy of this order be sent  to the Ld.  DCDR Commission, South 24 Parganas.

Thus the Appeal is disposed of.