CAN THERE BE ANY SECOND COMPLAINT AFTER FIRST COMPLAINT IS DISMISSED BEFORE THE CONSUMER FORUM

It often happens that complainant does not turn up on the date fixed .Consumer courts wait for at least one more date and then dismiss ithe complaint  for non-appearance as provided in the act. Since consumer fora does not have the jurisdiction to review its own order,cannot help the consumer if he comes back after the dismissal of the complaint.

But yet cases are being filed before the forums for either restoration of the case to its original stage or to admit a fresh complaint on the same issue with the same facts against the the same party/parties .The established law is that in case some complaint suffers with some discrepancy and either court wants the complaint  to be rectified or complainant wishes to withdraw for filing a fresh on the same issue with the same facts after desired rectification ,in such case consumer court may give liberty to the consumer to file a fresh complaint.Once liberty is given, there cannot be any question .But on its own if fresh complaints are filed when earlier complaint is dismissed for whatso ever reason,it will become a mockery of the judicial system and any one can choose to get them dismissed for imrovememt in their case.

Here is a case which had come in revision before the National Commission in the matter between Ansal Housing And Construction Ltd V/S Indian Machinery Company against the order 22.03.22013from Delhi State Consumer Dispute Redressal Commission  FA No 800/2009.Facts in brief are that complainant  had won the case against Ansal Constructions Ltd and an order was passed in favour of complainant in the  complaint before the consumer forum  by Indian Machinery Company and directed Ansals to deliver the possession of flat on depositing the balance amount with them without forfeiture of any amount .Ansals preferred an appeal before the state commission which was dismissed  .Against this order,revision before the National Commission for setting aside the order of State Commission.

An interesting thing had happened before the National Commission when original complainant Indian machinery company discloses this fact that this was his second complaint filed before the consumer forum  when first complaint was dismissed in default in complaint no 307 of 2007.He stated before the National Commission that the complaint earlier filed before the forum was dismissed on 29.8.2007 because of non –appearance. It was further  submitted to consider earlier complaint no 307/2007 as part and parcel of this case for the sake of documents attached and proceed this case from the satge the earlier complaint had been dismissed..

Now before the issue is decided on merits, the first question before the commission was to decide whether second complaint on the same fact can be maintained under he given circumstances.It is held that there is no provision in the law for second complaint on the same facts once it is dismissed in default.At the most there could be a appeal before the higher court for setting aside the said order.

The similar issue was earlier raised before the honorable National Commision in the case of Purusharath Builders Pvt Ltd V Uppal Housing Ltd & others 111[2012]CPJ  500[ NC]and was held that second complaint is not mainatainable .In this case, party had withdrawn the first complaint on the ground that previous counsel was not competent.The commission held that if there was any defect in the complaint, amendment application should have been moved or permission could have been sought or application could have been moved for liberty to file a fresh complaint on the same facts against the same party.

Its now clear from the above established law that second complaint is not mainatianble after dismissal of first complaint .In the above referred case OF Ansal constructions ,National Commission has maintained its stand taken in previous case and  held second complaint not allowed.The orders passed by the consumer court and state commission were also set aside for the reason they could have not allowed the second complaint at the initial stage it self.

We have now come to the conclusion on the basis of above two orders pronounced by the National Commission that-

·         Second appeal filed by the complainant on the same facts and against the same party is not maintainable after first complaint is dismissed for non-appearance.

·         Complaint has the remedy available to him for going into  appeal before the higher court against the dismissal order.

·         Complainant can also request for amendment in the complaint if found necessary but cannot withdraw on its own and then file another complaint on the same facts between the same parties.

·         Complainant can also withdraw the complaint asking /requesting liberty to file it again with the same facts and circumstances .

Dr Prem lata ,Member ,consumer court

www.consumerawakening.com

      

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