INDIAN MACHINERY COMPANY Vs. M/S. ANSAL HOUSING & CONSTRUCTION LTD.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 557 of 2016, Judgment Date: Jan 27, 2016

                                                                  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.                         RESPONDENT(s)



                                  O R D E R


      Leave granted.
      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  non-
prosecution.
      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