The court emphasized the importance of deciding complaints on merit and ensuring that parties do not suffer due to the actions of their counsel.

ORDER

Mr. C.B. Srivastava, Presiding Member (Oral) - We have heard Sri Vikas Agarwal, learned Counsel for the appellant at the time of admission of this appeal and perused the entire record.

2. This appeal has been filed by the appellant/complainant against the impugned order dated 21-08-2015 passed by the District Consumer Forum-I, Lucknow in Complaint Case No. 623/2011 by which the District Consumer Forum has dismissed the complaint in default of the complainant.

3. It is argued by the learned Counsel for the appellant that the complainant filed the complaint case for defective as well as unfair trade practice and after being satisfied with the arguments of the complainant the District Forum passed an interim order dated 13-07-2011 and restrained the respondent not to cancel the allotment of the flat of the complainant. It is further submitted that during the pendency of the complaint case the respondent proposed a compromise that if the complainant withdraw their case then the builder wave of the interest portion and the complainant believing upon the version of the respondent filed an application for withdrawal of the complaint case in terms of compromise. Learned Counsel further pleaded that after filing the withdrawal application the complainant was very much optimistic that the District Forum will pass the orders in the light of their application but the District Consumer Forum dismissed the complaint case in default of the complainant without considering the application of the complainant and as such the impugned orders are liable to be quashed. It is further argued that when the complainant served the order of the District Consumer Forum the respondent in utter disregards of their commitments deviated from their commitments and denied for any compromise as such the impugned orders are liable to be dismissed. Learned Counsel further submitted that the written statement of the opposite party was on record and the District Consumer Forum should have decided the complaint on merit instead of dismissing the complaint in default.

4. After hearing of the learned Counsel for the appellant and perusing the record, we are of the view that once the complaint is filed, it is advisable that the District Consumer Forum has to ensure the appearance of the parties and if all the opposite parties appeared and given time to file the written statement/counter affidavit or if the written statement of the opposite party is on record, the complaint should not be dismissed in default of the complainant since each and every complaint is generally filed by the complainant supported by the affidavit of the complainant.

5. Though there is a provision in the Consumer Protection Act provided as per Section 13(2)(c) that where the complainant fails to appear on the date of hearing before the District Consumer Forum, the District Consumer Forum may either dismiss the complaint for default or decide it on merit but looking into this provision that the District Consumer forum have a right to dismiss the complaint for default or decide it on merit, we are of this view that this discretion of the District Consumer Forum should be used to decide the complaint on merit.

6. Hon'ble Supreme Court has held in the case of Rafiq And Another v. Munshilal And Another (1981) 2 SCC 788 in respect to Practise and Procedure that contesting parties should not suffer for lapses on the part of their counsel. Ex parte order of dismissal of appeal was passed by High Court on non-appearance of appellant's counsel on the date of hearing in that case. Application made by counsel for recalling the order and for permission to participate in the hearing of the appeal was rejected on ground of unexplained delay in presenting the application to the court. Rejection of the application was not found justified as the party should not suffer for the inaction, deliberate omission, or misdemeanour of his agent, the lawyer. Costs was also ordered to be recovered from the counsel who ab