Shaheed Bhagat Singh Coop. H.B. Society Ltd. Vs. Improvement Trust, Ludhiana
EmailAppeal: Civil Appeal No. 4608 of 1999
With
C.A. No. 4609/1999
With
C.A. No. 4609/1999
Petitioner: Shaheed Bhagat Singh Coop. H.B. Society Ltd.
Respondent: Improvement Trust, Ludhiana
Apeal: Civil Appeal No. 4608 of 1999
With
C.A. No. 4609/1999
With
C.A. No. 4609/1999
Judges: S. SAGHIR AHMAD & D.P. WADHWA, JJ.
Date of Judgment: May 04, 2000
Head Note:
CONSUMER PROTECTION/PRACTICE AND PROCEDURE
Consumer Protection Act, 1986
Revision – Dismissal – Application for restoration allowed by National Commission – SLP – Facts showing that no notice of hearing given to counsel, engaged in absence of already engaged counsel – Subsequent advocate not appearing as name not shown in list. Held that mistake was on part of Commission and hence, it was justified in recalling orders of dismissal.
(Para 5)
Cases Reffered:
1. Jyotsana Arvind Kumar Shah & Ors. v. Bombay Hospital Trust (JT 1999 (5) SC 228)
JUDGEMENT:
ORDER
C. A. No. 4608 of 1999
1. The appellant which is a Cooperative House Building Society had filed a complaint against the respondent which was allowed by the District Forum by its judgment and order dated 7.2.1996/15.2.1996 against which the respondent filed an appeal which was dismissed by the State Commission by its judgment dated 17.10.1996. The respondent filed a revision before the National Commission which was dismissed in default on 8.12.1998. the respondent thereafter filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure for recalling the order dated 8.12.1998 by which the revision was dismissed in default. This application was allowed by order dated 21.1.1999 and the order dismissing the revision in default was recalled and the revision was restored to its original number. It is against this order that the present appeal has been filed.
2. The principal contention raised by the learned Counsel for the appellant is that there is no provision under the Consumer Protection Act 1986 or the rules made thereunder for restoration of a revision which is dismissed in default. Reliance for this purpose was placed on the decision of this Court in Jyotsana Arvindkumar Shah & Ors. v. Bombay Hospital Trust (JT 1999 (5) SC 228 = (1999) 4 SCC 325). Learned Counsel for the respondent on the other hand has contended that the revision was dismissed on account of the mistake of the Commission itself and the Commission shall be deemed to possess the inherent power to correct its mistake in recalling the order and restoring the revision to its original number. It is contended that the act of the Court will not prejudice any party is the basic principle of the administration of justice. It is contended that in this case as the facts set out in the application would indicate that the Commission and its office had committed a mistake in not intimating the counsel, engaged by the respondent, of the date fixed for hearing of the revision and, therefore, the counsel could not appear on that date and the revision was dismissed in default. It is also stated that even in the cause list the name of the counsel was not shown.
3. In order to appreciate the contention of the parties we may set out the facts mentioned in the application for restoration as under :
“2. That the brief facts for deciding the present application are given below :
i) 15.10.98 : That the present case was earlier fixed on 15.10.98 before this Hon’ble Commission for hearing and was adjourned for filing replies and rejoinder by the parties without fixing any particular date of next hearing, as per the practice of this Hon’ble Court that the next date of hearing is always intimated to the counsels of both the parties by the Registry of this Hon’ble Court by post.
It may be clarified here that in fact, the petitioner Improvement Trust, Ludhiana initially engaged Ms. Indira Jaisingh, Sr. Advocate and Mr. Nikhil Nayyar as their Advocates at the time of filing of the present Review Petition No. 1359/96 but since Ms. Indira Jaisingh, Sr. Advocate had not appeared on the last date of hearing i.e. 15.10.98 and refused to appear in the present case due to other engagements, therefore, the Petitioner Trust decided to change its Advocate in the present case and accordingly after taking no objection certification from their previous counsels, engaged a new counsel Sh. Pradeep Gupta, Advocate in the present case and vide letter dated 29.10.98 authorised Sh. Pradeep Gupta, Advocate to appear in the present case on behalf of Improvement Trust.
ii.) 2.11.98 : That on 2.11.98 Sh. Pradeep Gupta, Advocate filed Power of Attorney before the Registry of this Hon’ble National Commission on behalf of the petitioner Improvement Trust along with his address written on the Power of Attorney and the Registry of this Hon’ble Commission duly acknowledged/stamped the duplicate copy of the index of filing Power of Attorney. A copy of the said acknowledgement dt. 2.11.98 given by this Hon’ble Commission to the new Advocate Sh. Pradeep Gupta is annexed hereto with this application as Annexure A-1.
iii) That since as per the well-known practice of this Hon’ble National Commission, in each and every case, every next date of hearing is being intimated by post to the counsel of both the parties, so accordingly Sh. Pradeep Gupta, Advocate was awaiting the letter from Registry of this Hon’ble Commission to appear on the next date of hearing. It is specifically mentioned here that till date neither Sh. Pradeep Gupta, Adv., nor the petitioner Improvement Trust, Ludhiana was informed by the Registry of this Hon’ble Commission about the date, in question, fixed i.e. 8.12.98.
It may also be clarified here that the earlier counsel of the Petitioner – Improvement Trust had also not informed about the next date of hearing to the petitioner – Trust nor to their newly appointed counsel Sh. Pradeep Gupta, Adv.
iv) Hence, the non-appearance of Sh. Pradeep Gupta, Adv. Counsel for the petitioner for the date fixed i.e. 8.12.98 is solely due to the fact that he was not informed by the Registry of this Hon’ble Commission about the said date fixed nor Sh. Pradeep Gupta, Adv. was aware about the said date fixed by any source.
v) It may also be clarified here that though two other Review Petitions Nos. 729 and 730 of 1998 were also fixed for hearing on the same day i.e. 8.12.98 filed by the petitioner Trust in a different case but since the petitioner Trust was to seek time for filing the rejoinder in the said cases, so accordingly, Sh. Pradeep Gupta, Adv., requested his associate Advocate Sh. Rattan Lal to make a request on his behalf before his Hon’ble National Commission for adjournment of these two Review Petition Nos. 729 and 730 of 1998 and accordingly the said request was accepted and the said cases were adjourned. Since two other following cases of Sh. Pradeep Gupta, Adv., were fixed before the Hon’ble High Court of Delhi i.e. in Court No. 2 Item No. 2 & 3 Court No. 5, Item No. 30 so as per the planning Sh. Pradeep Gupta, Adv., straightway rushed to the High Court to attend those cases and Mr. Rattan Lal, Adv., was requested to appear before this Hon’ble National Commission for attending the above mentioned two Review Petition Nos. 729 and 730 of 1998. In these two cases, the Registry of this Hon’ble Court sent a letter about the said dated fixed i.e. 8.12.98 to the counsel for the petitioner-Trust i.e. Sh. Pradeep Gupta, Advocate but no letter was sent for the present case, in question.
It may also be mentioned here that even in the Daily List put up on the Notice Board, the name of the newly appointed counsel – Pradeep Gupta was not shown and the name of the earlier counsel Ms. Nikhil Nayyar was shown. Moreover, the partie’s name i.e. of the respondent was not shown in full i.e. instead of the Shaheed Bhagat Singh Co-op Housing Society Ltd., the list stated “The Shaheed Co.House Building Society Ltd.”
Secondly, in the absence of intimation about the date fixed i.e., 8.12.98 to the newly appointed counsel of the petitioner-Trust i.e. Sh. Pradeep Gupta, Advocate, the absence of the petitioner or his counsel is bona fide one and not intentional one.
If Sh. Pradeep Gupta, Advocate, would have come to know about the date fixed i.e. 8.12.98, in the present case, he would have certainly instructed his Associate Sh. Rattan lal to appear in the present case also as he was appearing in other cases before this National Commission on the same date i.e. 8.12.98. Hence, the non-appearance is a genuine one and not intentional.”
4. A reply to this application was filed on behalf of the appellant in which it was, inter alia, stated as under :
“1. That the present application of the petitioners is devoid of any merits and needs to be rejected as no good reasons have been advanced by the petitioners in support of their contentions for restoration of the Revision Petition to its original number. The petitioners, on the earlier date i.e. on 15.10.1998, had also sought adjournment and they again defaulted in their appearance on 8.12.1998 when the case was listed for Final hearing. The respondent Society’s representatives, along with their Counsel, were present on both the said dates.
2. That it is evident that the petitioners were not diligent and were rather negligent in putting in their appearance on the notified date when almost a month’s prior notice was given by the Hon’ble Commission to both the parties. The petitioners had obtained an ex-parte stay of the order of the State Commission from this Hon’ble Commission on 15.1.1997 and, therefore, ought to have been very vigilant in pursuing the proceedings.
3. That it may be stated that the registry of this Hon’ble Commission, after the case had been adjourned on 15.10.1999, had issued notice on 13.11.1998 to the Counsels for both the parties that the case would be listed for final hearing on 8.12.1998. This notice was duly served on the counsel for the petitioners. It is stated in the application under reply that the petitioners had decided to change their advocate and accordingly after taking ‘No Objection Certificate’ from the previous Counsel, another advocate, Shri Pradeep Gupta was engaged. No copy of the ‘No Objection Certificate’ has been placed on record. What appears from the record of the Registry is that a power of attorney was filed by Shri Pradeep Gupta, Advocate on behalf of the petitioners in the case on 2.11.1998. However, no communication was given to the registry of this Hon’ble Commission by the petitioners that they have revoked the engagement of the previous counsel and all notices henceforth should be served on Shri Pradeep Gupta, Advocate. Shri Pradeep Gupta, Advocate, also did not tell the Registry of this Hon’ble Commission that hence forth notices meant for the petitioners should be served on him and not on the Counsel whose power of attorney was already existing on the record. It usually happens that a party in a case engages more than one advocate and, therefore, merely because Shri Pradeep Gupta, Advocate was also engaged in the case, the Registry of this Hon’ble Commission could not have inferred from that alone that the authority of the previous counsel had been revoked. As no intimation was given to the registry of this Hon’ble Commission revoking the power of attorney of Shri Nikhil Nayyar, the Registry cannot be faulted in not issuing notice to Shri Pradeep Gupta, Advocate for the date fixed i.e. for 8.12.1998 and in issuing notice to Shri Nikhil Nayyar, Advocate which was duly served on him.
It is stated in the application that the earlier counsel of the petitioners did not inform the petitioners or the newly appointed Counsel Shri Pradeep Gupta, Advocate about the next date of hearing. It is also stated that Shri Pradeep Gupta, Advocate was not aware about the said date of 8.12.1998 fixed in the case. In this situation, it was only proper that Shri Pradeep Gupta, Advocate should have filed his affidavit affirming the said facts. This has not been done. On the other hand, an affidavit of a legal assistant working in the office of the petitioners has been filed which affidavit is defective in itself and the said legal assistant could not have deposed about the facts which are in the personal knowledge of Shri Pradeep Gupta, Advocate alone.
4. That it is entirely incorrect on the part of the petitioners to put blame on the Registry of this Hon’ble Commission for not sending the notice to the new Counsel for the date 8.12.1998. It was not enough for the petitioners to just engage a new Counsel and ask him to file his power of attorney in the Registry of this Hon’ble Commission but it was also their duty to inform the Registry of this Hon. Commission that they had revoked the authority of the previous Counsel and, therefore, all intimations henceforth should be sent to their newly appointed Counsel. This has not been done and the petitioners have been grossly negligent in pursuing their case. It is incorrect that the absence of the petitioners or their Counsel on 8.12.1998 is bonafide or unintentional or that the order dated 8.12.1998 dismissing the case in default requires to be set aside.”
5. From the facts set out above it would be seen that although the revision was filed through M/s. Indira Jaisingh and Nikhil Nayyar, they for the reasons set out above, did not appear in the case and refused to appear on the ground of their other engagements. Consequently, the respondent engaged Shri Pradeep Gupta and filed his power of attorney. But the notice of the hearing of the revision was not issued to Mr. Pradeep Gupta, nor was his name shown in the daily cause list of the National Commission. It was in this situation that Mr. Pradeep Gupta could not appear before the National Commission and the revision was dismissed in default. There is thus a mistake on the part of the Commission in not issuing notice of the date fixed to Mr. Pradeep Gupta and in not showing his name in the cause list. Since it was a mistake of the Commission on account of which the revision was dismissed in default, the Commission was justified in recalling its order and restoring the revision to its original number. That being so, the decision relied upon (supra) by the appellants is not applicable to the present case and is distinguishable on facts. We find no merit in the appeal which is dismissed. No costs.
C.A. No. 4609/1999
6. As Civil Appeal No. 4608/99 is dismissed, this appeal is also dismissed.
C. A. No. 4608 of 1999
1. The appellant which is a Cooperative House Building Society had filed a complaint against the respondent which was allowed by the District Forum by its judgment and order dated 7.2.1996/15.2.1996 against which the respondent filed an appeal which was dismissed by the State Commission by its judgment dated 17.10.1996. The respondent filed a revision before the National Commission which was dismissed in default on 8.12.1998. the respondent thereafter filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure for recalling the order dated 8.12.1998 by which the revision was dismissed in default. This application was allowed by order dated 21.1.1999 and the order dismissing the revision in default was recalled and the revision was restored to its original number. It is against this order that the present appeal has been filed.
2. The principal contention raised by the learned Counsel for the appellant is that there is no provision under the Consumer Protection Act 1986 or the rules made thereunder for restoration of a revision which is dismissed in default. Reliance for this purpose was placed on the decision of this Court in Jyotsana Arvindkumar Shah & Ors. v. Bombay Hospital Trust (JT 1999 (5) SC 228 = (1999) 4 SCC 325). Learned Counsel for the respondent on the other hand has contended that the revision was dismissed on account of the mistake of the Commission itself and the Commission shall be deemed to possess the inherent power to correct its mistake in recalling the order and restoring the revision to its original number. It is contended that the act of the Court will not prejudice any party is the basic principle of the administration of justice. It is contended that in this case as the facts set out in the application would indicate that the Commission and its office had committed a mistake in not intimating the counsel, engaged by the respondent, of the date fixed for hearing of the revision and, therefore, the counsel could not appear on that date and the revision was dismissed in default. It is also stated that even in the cause list the name of the counsel was not shown.
3. In order to appreciate the contention of the parties we may set out the facts mentioned in the application for restoration as under :
“2. That the brief facts for deciding the present application are given below :
i) 15.10.98 : That the present case was earlier fixed on 15.10.98 before this Hon’ble Commission for hearing and was adjourned for filing replies and rejoinder by the parties without fixing any particular date of next hearing, as per the practice of this Hon’ble Court that the next date of hearing is always intimated to the counsels of both the parties by the Registry of this Hon’ble Court by post.
It may be clarified here that in fact, the petitioner Improvement Trust, Ludhiana initially engaged Ms. Indira Jaisingh, Sr. Advocate and Mr. Nikhil Nayyar as their Advocates at the time of filing of the present Review Petition No. 1359/96 but since Ms. Indira Jaisingh, Sr. Advocate had not appeared on the last date of hearing i.e. 15.10.98 and refused to appear in the present case due to other engagements, therefore, the Petitioner Trust decided to change its Advocate in the present case and accordingly after taking no objection certification from their previous counsels, engaged a new counsel Sh. Pradeep Gupta, Advocate in the present case and vide letter dated 29.10.98 authorised Sh. Pradeep Gupta, Advocate to appear in the present case on behalf of Improvement Trust.
ii.) 2.11.98 : That on 2.11.98 Sh. Pradeep Gupta, Advocate filed Power of Attorney before the Registry of this Hon’ble National Commission on behalf of the petitioner Improvement Trust along with his address written on the Power of Attorney and the Registry of this Hon’ble Commission duly acknowledged/stamped the duplicate copy of the index of filing Power of Attorney. A copy of the said acknowledgement dt. 2.11.98 given by this Hon’ble Commission to the new Advocate Sh. Pradeep Gupta is annexed hereto with this application as Annexure A-1.
iii) That since as per the well-known practice of this Hon’ble National Commission, in each and every case, every next date of hearing is being intimated by post to the counsel of both the parties, so accordingly Sh. Pradeep Gupta, Advocate was awaiting the letter from Registry of this Hon’ble Commission to appear on the next date of hearing. It is specifically mentioned here that till date neither Sh. Pradeep Gupta, Adv., nor the petitioner Improvement Trust, Ludhiana was informed by the Registry of this Hon’ble Commission about the date, in question, fixed i.e. 8.12.98.
It may also be clarified here that the earlier counsel of the Petitioner – Improvement Trust had also not informed about the next date of hearing to the petitioner – Trust nor to their newly appointed counsel Sh. Pradeep Gupta, Adv.
iv) Hence, the non-appearance of Sh. Pradeep Gupta, Adv. Counsel for the petitioner for the date fixed i.e. 8.12.98 is solely due to the fact that he was not informed by the Registry of this Hon’ble Commission about the said date fixed nor Sh. Pradeep Gupta, Adv. was aware about the said date fixed by any source.
v) It may also be clarified here that though two other Review Petitions Nos. 729 and 730 of 1998 were also fixed for hearing on the same day i.e. 8.12.98 filed by the petitioner Trust in a different case but since the petitioner Trust was to seek time for filing the rejoinder in the said cases, so accordingly, Sh. Pradeep Gupta, Adv., requested his associate Advocate Sh. Rattan Lal to make a request on his behalf before his Hon’ble National Commission for adjournment of these two Review Petition Nos. 729 and 730 of 1998 and accordingly the said request was accepted and the said cases were adjourned. Since two other following cases of Sh. Pradeep Gupta, Adv., were fixed before the Hon’ble High Court of Delhi i.e. in Court No. 2 Item No. 2 & 3 Court No. 5, Item No. 30 so as per the planning Sh. Pradeep Gupta, Adv., straightway rushed to the High Court to attend those cases and Mr. Rattan Lal, Adv., was requested to appear before this Hon’ble National Commission for attending the above mentioned two Review Petition Nos. 729 and 730 of 1998. In these two cases, the Registry of this Hon’ble Court sent a letter about the said dated fixed i.e. 8.12.98 to the counsel for the petitioner-Trust i.e. Sh. Pradeep Gupta, Advocate but no letter was sent for the present case, in question.
It may also be mentioned here that even in the Daily List put up on the Notice Board, the name of the newly appointed counsel – Pradeep Gupta was not shown and the name of the earlier counsel Ms. Nikhil Nayyar was shown. Moreover, the partie’s name i.e. of the respondent was not shown in full i.e. instead of the Shaheed Bhagat Singh Co-op Housing Society Ltd., the list stated “The Shaheed Co.House Building Society Ltd.”
Secondly, in the absence of intimation about the date fixed i.e., 8.12.98 to the newly appointed counsel of the petitioner-Trust i.e. Sh. Pradeep Gupta, Advocate, the absence of the petitioner or his counsel is bona fide one and not intentional one.
If Sh. Pradeep Gupta, Advocate, would have come to know about the date fixed i.e. 8.12.98, in the present case, he would have certainly instructed his Associate Sh. Rattan lal to appear in the present case also as he was appearing in other cases before this National Commission on the same date i.e. 8.12.98. Hence, the non-appearance is a genuine one and not intentional.”
4. A reply to this application was filed on behalf of the appellant in which it was, inter alia, stated as under :
“1. That the present application of the petitioners is devoid of any merits and needs to be rejected as no good reasons have been advanced by the petitioners in support of their contentions for restoration of the Revision Petition to its original number. The petitioners, on the earlier date i.e. on 15.10.1998, had also sought adjournment and they again defaulted in their appearance on 8.12.1998 when the case was listed for Final hearing. The respondent Society’s representatives, along with their Counsel, were present on both the said dates.
2. That it is evident that the petitioners were not diligent and were rather negligent in putting in their appearance on the notified date when almost a month’s prior notice was given by the Hon’ble Commission to both the parties. The petitioners had obtained an ex-parte stay of the order of the State Commission from this Hon’ble Commission on 15.1.1997 and, therefore, ought to have been very vigilant in pursuing the proceedings.
3. That it may be stated that the registry of this Hon’ble Commission, after the case had been adjourned on 15.10.1999, had issued notice on 13.11.1998 to the Counsels for both the parties that the case would be listed for final hearing on 8.12.1998. This notice was duly served on the counsel for the petitioners. It is stated in the application under reply that the petitioners had decided to change their advocate and accordingly after taking ‘No Objection Certificate’ from the previous Counsel, another advocate, Shri Pradeep Gupta was engaged. No copy of the ‘No Objection Certificate’ has been placed on record. What appears from the record of the Registry is that a power of attorney was filed by Shri Pradeep Gupta, Advocate on behalf of the petitioners in the case on 2.11.1998. However, no communication was given to the registry of this Hon’ble Commission by the petitioners that they have revoked the engagement of the previous counsel and all notices henceforth should be served on Shri Pradeep Gupta, Advocate. Shri Pradeep Gupta, Advocate, also did not tell the Registry of this Hon’ble Commission that hence forth notices meant for the petitioners should be served on him and not on the Counsel whose power of attorney was already existing on the record. It usually happens that a party in a case engages more than one advocate and, therefore, merely because Shri Pradeep Gupta, Advocate was also engaged in the case, the Registry of this Hon’ble Commission could not have inferred from that alone that the authority of the previous counsel had been revoked. As no intimation was given to the registry of this Hon’ble Commission revoking the power of attorney of Shri Nikhil Nayyar, the Registry cannot be faulted in not issuing notice to Shri Pradeep Gupta, Advocate for the date fixed i.e. for 8.12.1998 and in issuing notice to Shri Nikhil Nayyar, Advocate which was duly served on him.
It is stated in the application that the earlier counsel of the petitioners did not inform the petitioners or the newly appointed Counsel Shri Pradeep Gupta, Advocate about the next date of hearing. It is also stated that Shri Pradeep Gupta, Advocate was not aware about the said date of 8.12.1998 fixed in the case. In this situation, it was only proper that Shri Pradeep Gupta, Advocate should have filed his affidavit affirming the said facts. This has not been done. On the other hand, an affidavit of a legal assistant working in the office of the petitioners has been filed which affidavit is defective in itself and the said legal assistant could not have deposed about the facts which are in the personal knowledge of Shri Pradeep Gupta, Advocate alone.
4. That it is entirely incorrect on the part of the petitioners to put blame on the Registry of this Hon’ble Commission for not sending the notice to the new Counsel for the date 8.12.1998. It was not enough for the petitioners to just engage a new Counsel and ask him to file his power of attorney in the Registry of this Hon’ble Commission but it was also their duty to inform the Registry of this Hon. Commission that they had revoked the authority of the previous Counsel and, therefore, all intimations henceforth should be sent to their newly appointed Counsel. This has not been done and the petitioners have been grossly negligent in pursuing their case. It is incorrect that the absence of the petitioners or their Counsel on 8.12.1998 is bonafide or unintentional or that the order dated 8.12.1998 dismissing the case in default requires to be set aside.”
5. From the facts set out above it would be seen that although the revision was filed through M/s. Indira Jaisingh and Nikhil Nayyar, they for the reasons set out above, did not appear in the case and refused to appear on the ground of their other engagements. Consequently, the respondent engaged Shri Pradeep Gupta and filed his power of attorney. But the notice of the hearing of the revision was not issued to Mr. Pradeep Gupta, nor was his name shown in the daily cause list of the National Commission. It was in this situation that Mr. Pradeep Gupta could not appear before the National Commission and the revision was dismissed in default. There is thus a mistake on the part of the Commission in not issuing notice of the date fixed to Mr. Pradeep Gupta and in not showing his name in the cause list. Since it was a mistake of the Commission on account of which the revision was dismissed in default, the Commission was justified in recalling its order and restoring the revision to its original number. That being so, the decision relied upon (supra) by the appellants is not applicable to the present case and is distinguishable on facts. We find no merit in the appeal which is dismissed. No costs.
C.A. No. 4609/1999
6. As Civil Appeal No. 4608/99 is dismissed, this appeal is also dismissed.
