A second complaint to the District Forum is maintainable when the first complaint was dismissed for default #indianlaws

There is no provision parallel to the provision contained in Order 9 Rule 9(1) Code of Civil Procedure 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, in the Consumer Protection Act. That being so, the rule of prohibition contained in Order 9 Rule 9(1) Code of Civil Procedure cannot be extended to the proceedings before the District Forum or the State Commission. Therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.

In the instant matter before the Supreme Court the only question that arose was 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 non-prosecution. The National Commission had taken the view in the impugned order that the second complaint would not be maintainable.

Under this Sub-rule (8) of Rule 8, 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) Code of Civil Procedure 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) Code of Civil Procedure 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 are of the opinion that the second complaint filed by the Appellant was maintainable on the facts of this case. Under the circumstances, the order passed by the National Commission is set aside and the matter is remitted back to the National Commission for adjudicating the disputes on merits.

                                                         Indian Machinery Company Vs. Ansal Housing and Construction Ltd.                                                             Civil Appeal No. 557 of 2016 (Arising out of SLP (C) No. 19618 of 2013)                                                                                      27.01.2016