Second complaint not admissible when first complaint dismissed on merits; says Supreme Court (Judgment 5^th march 2020)

Criminal Appeal Nos.367-368 of 2020 @ SLP(Crl.)Nos.4418-4419 of 2020

Samta Naidu & Anr. Vs. State of Madhya Pradesh and Anr.

Uday Umesh Lalit, J.

If the earlier disposal of the complaint had been on merits and in a manner known to law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable.

A Supreme Court bench comprising Justices U Lalit & Vineet Saran (two judges bench ) Discussed on two major issues-

1.      The bench pointed out that if the core of both complaints was the same, the second complaint ought not to be maintained. 

2.      The earlier complaint was dismissed after the Judicial Magistrate found that (FOUR REASONS)

·         No prima facie case was made out;

·         Was not disposed of on any technical ground;

·         The material adverted to in the second complaint was only in the nature of supporting material

·         The material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical.” 

Decision of the high court set aside

Bindeshwari Prasad Singh vs. Kali Singh10 it was observed:

“It is now well settled that a second complaint can lie only on fresh facts

or even on the previous facts only if a special case is made out”.

Another Judgment of the same Supreme Court in Consumer Matters

Consumer Protection Act does not follow Civil Procedure Code Or Cr PC

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)

Supreme Court civil appeal no 557 of 2016 decided on 17.1.2016.

Indian Machinery Company V/S Ansal Housing & Construction Company

National Commission ;   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

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 precede 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.

 

Supreme Court ; Earlier decision Relied

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 Justice S S Ahmad, D Wadhwa (TWO JUDGES BENCH)

  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

           

Three fold reply

 

·         “ in the absence of the complainant , the court or judicial body will be well within the jurisdiction to dismiss 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  

 

·         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.

 

·         Rules for Consumer Courts

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.

 

Supreme Court Finally in Consumer matters –

  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 does not prohibit second complaint if dismissed in default.

 

All cases cannot be decided on the same yard stick 

  In M/s Purusharth Associates Pvt. Ltd. vs. M/s Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No.112 of 2012, decided on 05.07.2012  

The similar issue was earlier raised before the honorable National Commission 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 maintainable .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.

 

 

 

 

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