A Case to Note

The above-mentioned order had been passed in the matter of Indian Machinery Company versus Ansal Housing and Construction Company which had come before the Supreme Court (civil appeal no. 557 of 2016) and was decided in January 2016.

This case had earlier come in revision before the National Commission in 2013 from Delhi State Consumer Disputes Redressal Commission. The complainant had won the case against Ansal Constructions Ltd and an order was passed in favour of the complainant. The Ansals were directed by the district forum to deliver the possession of the flat on depositing of the balance amount with them without forfeiture of any amount. The Ansals preferred an appeal before the State Commission, though it was dismissed. Against this order, they filed a revision petition before the National Commission for setting aside the order of State Commission.

Interestingly, when Indian Machinery Company disclosed that this was their second complaint before the consumer forum because the first complaint was dismissed on default on account of of nonappearance,

Points to Note

There is no provision for filing a complaint for the same cause on the same issue once the complaint has been dismissed in default for non-prosecution. However, at the same time, there is no prohibition also for the same in Consumer Protection Act. The prohibition clause of Order 9, Rule 9 (1) is not applicable to consumer matters since consumer

forums follow summary procedures and not CPC. The apex court in a number of cases has directed that interpretation of clauses should be made looking into the purpose of the law, and Consumer Protection Act being a consumer welfare act, the consumer should not be deprived of natural justice. Rules 15 (6) made by National Commission do not prohibit a second complaint if dismissed in default.

This is a well-settled law and has been reinforced through various judgements in various courts of law. The summary procedure is to be followed by consumer forums, this being properly laid

Question before the Commission

Now, before the issue could be decided on merit, the overriding question before the commission was to decide whether the second complaint on the same fact could be maintained under the given circumstances. Initially it was held that there was no provision in the law for a second complaint on the same facts once it was dismissed in default.

To maintain that the second complaint was acceptable, the matter of New India Assurance Company versus R Srinivasan was referred to by the court. The Supreme Court had answered two vital questions in a landmark judgement in this case: a) whether consumer forums could restore a case that was dismissed in default and b) whether a party could institute a fresh suit/file a fresh complaint if a case was dismissed in default without dealing with it on merits and not restored by the court to its original stage.

Justice S S Ahmad and Justice D Wadhwa held: “…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, it would also have the inherent power and jurisdiction to restore the complaint on good cause being shown for non-appearance of the complainant.”

Thus, the court or judicial body can dismiss the complaint in default and also restore it if nonappearance is justified. down under Section 13 of the Act CPC is not applicable. In view of this, prohibition contained under Order 9, Rule 9 (1) has no relevance at consumer forums.