IN THE  SUPREME COURT OF INDIA                 CIVIL  APPELLATE  JURISDICTION                                    CIVIL APPEAL NOS. 3327-3328  OF 2002   

 Mohinder Gupta ..   Appellant(s)

                    Versus

Frontier Construction Company &Anr. ..   Respondent(s)                                                           O R D E R

These appeals are directed against orders dated 28th August, 2001 and 21st

November, 2001, passed by the National Consumer Disputes Redressal Commission,

New Delhi,  hereinafter  referred  to  as  the  "Commission"  respectively  in  Original

Petition No. 146 of 1994 and Misc. Petition No. 56 of 2001.  By the first order, the

Commission  has  dismissed  the  complaint  filed  by  the  appellant  herein  for  non-

prosecution and by the latter  order, the application filed  for recall of the said order

has also been dismissed.

We have heard learned counsel for the appellant.  Despite service of notice,

no one has appeared on behalf of respondents No. 1 and 2.  Respondent No. 3 was

deleted from array of parties vide order dated 11th January, 2007.  

It appears that the complaint  filed some time in the year, 1994, could not be

taken up for disposal because of difficulty in service of notice on respondents No. 1 to

3.  Ultimately, respondent No. 3 could be served by publication.

..2/-

Crl.A. 3327-28/2002..contd..

: 2 :

When  the  matter  came  up  for  consideration  before  the  Commission  on

August  28,  2001,  a  request  for  adjournment   was  made  by  counsel  for  the

complainant  on  the ground that  he had been engaged recently  and was  not  fully

prepared to argue the case.  The request  was turned down by the Commission on the

ground  that  the  matter  had  been  pending  for  the  last  seven  years  without  any

progress and there was  frequent change of counsel.  While dealing with application

for recall of the said order, the Commission, without attaching an importance to the

negligence on the part of the counsel, held that the negligence so pleaded was a mere

excuse to   somehow seek an adjournment. Nevertheless, the Commission did observe

that  negligence on the part of a lawyer may amount to deficiency in service on his

part, but it could not be treated as a sufficient ground for recall of the said order.

It is true that it cannot be laid down as an absolute rule that change of an

Advocate at any stage of the proceedings in Court is a valid ground for adjournment

of hearing yet in certain situations the Court may, in the interest of justice, entertain

such a prayer, the underlying object being that an innocent litigant may not suffer

injustice because of the default of his chosen Advocate.   

..3/-

Crl.A. 3327-28/2002..contd..

: 3 :

Depending on the facts and circumstances of the case, it is always open to the Court

to set aside a dismissal order, notwithstanding the negligence of his Counsel.

Having bestowed our anxious consideration to the facts of the instant  case

and bearing in mind the fact that a lot of time had been consumed in service of notice

on the respondents and that there was substantial delay on the part of respondents

No. 1 and 2 in filing their written statements, we feel that it was a fit case where the

prayer made  by  counsel  for  the  appellant  for  adjournment  of  the  case  could  be

acceded to.    

Accordingly, we allow the appeals, set aside the impugned orders and remit

the matter back to the Commission for disposal on merits.

Since the complaint was filed as far back as in the year, 1994, we would

request the Commission to expedite the disposal of the matter.

                                       ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA ]                                   

            NEW DELHI, MARCH 25, 2009.