Mohinder Gupta vs FRONTIER CONSTRUCTIONS CO.

THIS is a miscellaneous petition seeking recalling of our order dated 28.8.2001 by which we had dismissed the complaint for non-prosecution. Complaint was filed on 11.5.1994 claiming an amount of Rs. 20.00 lakhs as damages for loss of goods suffered by her and her suffering injuries on account of negligent act of the opposite parties. When this matter came up before this Commission on 1.5.2001 we passed the following order : "Ms. Madhu Tewatia, Advocate for the complainant states that the complainant does not claim relief against opposite party No. 3 and his name may be deleted from the array of parties. Written submissions has been filed on behalf of the opposite party Nos. 1 and 2. Copy of the same has been supplied to the complainant and she states that she would like to file rejoinder, within two weeks. Let the needful be done. The parties shall also file their evidence by way of affidavits in respect of their cases. List this matter for final arguments on 28.8.2001."

ON 28.8.2001 we found there was no compliance of our order and an adjournment was sought. We passed the following order which is now sought to be recalled : "This matter pertains to the year 1994. May 1, 2001 was the last date of hearing in the matter when Ms. Madhu Tewatia appeared for the complainant. She was given copies of the written submissions made by the opposite party Nos. 1 and 2. She stated that she would like to file rejoinder within two weeks. It was also directed that the parties shall file affidavits by way of evidence in respect of their respective case. The matter was adjourned to 28th August, 2001 for final arguments. Today Mr. R.K. Rathore appeared for the complainant and sought adjournment. He says that he has been engaged only yesterday and is not aware of the facts of the case and he, therefore, seeks adjournment. No rejoinder or any affidavit by way of evidence has been filed. We find that there have been two different Counsels appearing on behalf of Ms. Madhu Tewatia, Advocate. The matter is pending for the last 7 years without any progress. We are unable to accept to the request of Mr. Rathore. Hon'ble Supreme Court in a number of cases has pointed out that a lawyer should not accept the brief when he is not ready and the matter is on Board. This practice of seeking adjournment on the ground that the lawyer was engaged a day before should be best left to Civil Court and Consumer Fora should be spared from such type of requests. Complainant herself is not present. Mr. Rathore states that complainant is a lawyer and on that matter adjournment may be given. This to our mind is no ground. A lawyer as party to the proceeding is like any as other litigant. A lawyer has no better rights. Since there is no evidence in support of the allegations made in the complaint, it is dismissed for non-prosecution. After the order was passed Mr. Rathore says that he would like to withdraw from the case. It is between him and his client. We have nothing to say."

For one thing this order would appear to be on merit as there was no evidence and cannot be reviewed. However, from the application seeking to have this order recalled, we find that complainant is imputing negligence on the part of her Counsel for not informing her the order dated 1.5.2001. Then the complainant says that though she has been enquiring every week about the progress of her case from Ms. Madhu Tewatia, she was told every time that it will take long time for decision of the case as the National Commission was burdened with heavy work. Then complainant says on 24.8.2001 she got a telephonic message from her Counsel that she had shifted her residence to DLF Colony Gurgaon and during the shifting she had misplaced brief of the case including the documents.

We would say that this is usual type of excuse which perhaps parties advance in order to get adjournment. If the complainant alleges negligence on the part of her lawyer, it can be deficiency of service on the part of the lawyer. We cannot give much credence to the argument that a client should not suffer for the fault of his Advocate. We do not think that a Consumer Court should fall for such an argument. If a lawyer is negligent he can well be proceeded against for deficiency of service. There is already a huge pendency of cases before the National Commission and when date is fixed in a matter in accordance with its calendar it cannot be adjourned on grounds either implausible or unsatisfactory. We find no merit in this application. It is dismissed. Application dismissed.