Friday, 29 January 2016

Whether second complaint under Consumer Protection Act is maintainable when first complaint was dismissed for default for non prosecution?

Our attention has been drawn to a decision of this
Court in New India Assurance Co. Ltd. Vs. R. Srinivasan
[(2000) 3 SCC 242] wherein this precise question had
arisen as mentioned in paragraph 5 of this decision. It
is mentioned in that paragraph that the only question is
that in view of the dismissal of the first complaint
filed by the respondent therein, a second complaint on
the same facts and cause of action would not lie and it
ought to have been dismissed as not maintainable.
While dealing with this issue, this Court held in
paragraph 16 as follows:
“This Rule [Rule 9(6) of the Tamil Nadu
Consumer Protection Rules, 1988] is in
identical terms with sub-rule (8) of Rule 4 and
sub-rule (8) of Rule 8. Under this sub-rule,
the appeal filed before the State Commission
against the order of the District Forum, can be
dismissed in default or the State Commission
may in its discretion dispose of it on merits.
Similar power has been given to the National
Commission under Rule 15(6) of the Rules made
by the Central Government under Section 30(1)
of the Act. These Rules do not provide that if
a complaint is dismissed in default by the
District Forum under Rule 4(8) or by the State
Commission under Rule 8(8) of the Rules, a
second complaint would not lie. Thus, there is
no provision parallel to the provision
contained in Order 9 Rule 9(1) CPC which
contains a prohibition that if a suit is
dismissed in default of the plaintiff under
Order 9 Rule 8, a second suit on the same cause
of action would not lie. That being so, the
rule of prohibition contained in Order 9 Rule
9(1) CPC cannot be extended to the proceedings
before the District Forum or the State
Commission. The fact that the case was not
decided on merits and was dismissed in default
of non-appearance of the complainant cannot be
overlooked and, therefore, it would be
permissible to file a second complaint
explaining why the earlier complaint could not
be pursued and was dismissed in default.”
We have also not been shown any rule similar to Order
IX, Rule 9(1) of the Code of Civil Procedure, 1908. That
being so, and in view of the decision rendered by this
Court, with which we have no reason to disagree, we are
of the opinion that the second complaint filed by the
appellant was maintainable on the facts of this case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.557 OF 2016
(Arising out of SLP(C) No.19618 of 2013)
INDIAN MACHINERY COMPANY APPELLANT(s)
 VERSUS
M/S. ANSAL HOUSING & CONSTRUCTION LTD.
Dated;JANUARY 27, 2016
Citation:AIR 2016 SC 2209


We have heard learned counsel for the parties.
The only question that has arisen in this appeal is
whether a second complaint to the District Forum under
the Consumer Protection Act, 1986 is maintainable when
the first complaint was dismissed for default or nonprosecution.
The National Commission has taken the view in the
impugned order that the second complaint would not be
maintainable.
Our attention has been drawn to a decision of this
Court in New India Assurance Co. Ltd. Vs. R. Srinivasan
[(2000) 3 SCC 242] wherein this precise question had
arisen as mentioned in paragraph 5 of this decision. It
is mentioned in that paragraph that the only question is
that in view of the dismissal of the first complaint
filed by the respondent therein, a second complaint on
the same facts and cause of action would not lie and it
ought to have been dismissed as not maintainable.
While dealing with this issue, this Court held in
paragraph 16 as follows:
“This Rule [Rule 9(6) of the Tamil Nadu
Consumer Protection Rules, 1988] is in
identical terms with sub-rule (8) of Rule 4 and
sub-rule (8) of Rule 8. Under this sub-rule,
the appeal filed before the State Commission
against the order of the District Forum, can be
dismissed in default or the State Commission
may in its discretion dispose of it on merits.
Similar power has been given to the National
Commission under Rule 15(6) of the Rules made
by the Central Government under Section 30(1)
of the Act. These Rules do not provide that if
a complaint is dismissed in default by the
District Forum under Rule 4(8) or by the State
Commission under Rule 8(8) of the Rules, a
second complaint would not lie. Thus, there is
no provision parallel to the provision
contained in Order 9 Rule 9(1) CPC which
contains a prohibition that if a suit is
dismissed in default of the plaintiff under
Order 9 Rule 8, a second suit on the same cause
of action would not lie. That being so, the
rule of prohibition contained in Order 9 Rule
9(1) CPC cannot be extended to the proceedings
before the District Forum or the State
Commission. The fact that the case was not
decided on merits and was dismissed in default
of non-appearance of the complainant cannot be
overlooked and, therefore, it would be
permissible to file a second complaint
explaining why the earlier complaint could not
be pursued and was dismissed in default.”
We have also not been shown any rule similar to Order
IX, Rule 9(1) of the Code of Civil Procedure, 1908. That
being so, and in view of the decision rendered by this
Court, with which we have no reason to disagree, we are
of the opinion that the second complaint filed by the
appellant was maintainable on the facts of this case.
Under the circumstances, we set aside the order
passed by the National Commission and remit the matter
back to the National Commission for adjudicating the
disputes on merits.
The appeal is disposed of in view of the above.
.............................J.
 (MADAN B. LOKUR)
.............................J.
 (R.K. AGRAWAL)
NEW DELHI
JANUARY 27, 2016
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