SECOND COMPLAINT AFTER FIRST
COMPLAINT 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. Complainant
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.
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.
The same matter has now
come before the supreme court and it is held by the Apex court:
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
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.
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