SECOND COMPLAINT AFTER FIRST COMPLAINT IS DISMISSED BEFORE THE CONSUMER FORUM IS PERMITTED SAYS SUPREME COURT

 

Rule of prohibition contained in Order 9 Rule 9(1) of CPC cannot be extended to proceedings before District Forum or State Commission.This is because civil procedure code is not applicable to consumer forums except for a few provisions permitted under sction13 (2) of the act. Hence it is held by the apex court that second complaint maintainable when first complaint was dismissed in default for non-prosecution.

This order is passed in the matter of Indian Machinery Company V/S Ansal Housing & Construction Company which had come before the Supreme Court civil appeal no 557 of 2016 decided on 17.1.2016.

  This was the 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 22.03.22013 from 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 stage 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 was held that there is no provision in the law for second complaint on the same facts once it is dismissed in default.

 Now  the same case has come up before the Supreme Court .Court has relied upon earlier decided case of the apex court in the year 2000 in the matter of New India Assurance Co. Ltd. V/S R .Srinivasan11(2000)SLT30 SC and discussed the issue in detail.

SC in its  landmark judgement  in the matter of New India Assurance Co.V R.Srinivasan discussed two vital  issues  in great detail :

 

1] Whether consumer forums can restore back the case dismissed in default

2]Whether a party can institute suit /file a complaint a fresh in case it was dismissed in default without dealing it on merits and not restored back by the court to its original stage

           

 Held on the first issue by Justice S S Ahmad , D Wadhwa

“ in the absence of the complainant , the court or judicial body will be well within the jurisdiction to dismisss the complaint for non –prosecution .So also ,it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for non-appearance of the complainant ” meaning thereby that court or judiciary body can dismiss the complaint in default and also restore it back if non-appearance is justified  

This is well settled law by now through various judgments  that summery procedure is to be followed by consumer forums which has been properly laid down under section 13 of the act and hence CPC is not applicable .In view of this, prohibition contained under order 9 ,rule 9(1) is of no meaning when we are talking of consumer fora and summery procedure. Now the question is what are the rules for consumer forums if complaint is dismissed in default. For this purpose we have to visit special powers given to the National commission and rule 15(6) which talks of dismissal of the case for non-prosecution but does not bar second complaint.

Hence Supreme court in the present case of Indian Machinery Company V/S Ansal Housing & Construction Company has again relied upon the case of New India Assurance Co.V R.Srinivasan and is of the view that :

1.     There is no provision of filing complaint for the same cause on the same issue once complaint has been dismissed in default for non-prosecution but at the same time there is no prohibition also for the same in the consumer protection act 1986.

2.     The prohibition clause of order 9 rule 9 is not applicable to consumer matter as consumer forums follow summery procedure and not CPC

3.     Apex court in number of cases has directed that interpretation of clauses should be made looking into the purpose of law and consumer protection act being consumer welfare act,consumer should not be deprived of natural justice.

4.      Rules 15(6) made by National commission do not prohibit second complaint if dismissed in default.

 

DR PREM LATA

 

 

Previous

Next