Abee Associates vs Paradise Heights Chs Ltd

THE petitioner / opposite party being aggrieved of rejection of his preliminary objection regarding maintainability of the complaint has preferred this revision against the order of State Commission Maharashtra, Mumbai in CC No. 11/283.

BRIEFLY stated, the facts relevant for the disposal of the revision petition are that respondent no.1 earlier filed CC No. 11/2005 against the petitioner before the State Commission Maharasthra. The said complaint was dismissed for non prosecution vide order dated 01.03.2011. The respondent complainant filed application dated 15.04.2011 for restoration of complaint. The said application was, however, unconditionally withdrawn by the counsel for the respondent complainant and it was dismissed vide order dated 24.02.2012. Thereafter, the complainant filed subject claim in the State Commission on same cause of action. The petitioner on being served with the notice filed an application taking preliminary objection to the maintainability of the complaint on the ground that the complainant had earlier filed the complaint on the same cause of action which came to be dismissed on 01.03.2011. Thus, second complaint on the same cause of action is not maintainable.

STATE Commission after hearing the parties relying upon the judgment of Apex Court in the matter of New India Assurance Company Vs. R.Srinivasan, 2000 AIR(SC) 941 rejected the preliminary objection. The relevant observations of the State Commission are reproduced as under: "It is admitted fact that earlier complaint filed by the complainant was dismissed for want of non -prosecution. Thereafter, the complainant had filed an application for restoration of complaint. Later on, he had withdrawn the same. During the course of arguments, learned counsel for the opponents have placed reliance on ruling laid down by the Hon''ble Apex Court in case of Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Ors. Passed in Civil Appeal No.4307/2007 on 19.08.2011, judgment passed by the Hon''ble National Commission in the case of SAS Motors Ltd. Vs. Anant Haridas Chodhar, 2013 3 CPJ 520 and the judgment passed by this Commission in the case of HDFC Standard life Insurance, Solapur Branch Vs. Mr. Dilip Shridhar Sapatnekar passed in First Appeal No.A/09/90 on 31.01.2013. It is to be noted here that the first complaint filed by the complainant was not decided on merit. The present complaint is filed within limitation. Cause of action is continuous cause. There is no bar to entertain the second complaint under provisions of the Consumer Protection Act, 1986. The complainant has not asked for review of order or to set aside order.

Learned counsel Mr. Kumarswami placed his reliance on the ruling laid down by the Hon''ble Apex Court in the case of New India Assurance Co. ltd. Vs. R. Srinivasan, 2000 AIR(SC) 941 In this ruling, the Hon''ble Apex Court has observed in para no. 16 as under:

This Rule 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 it of 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) Civil Procedure Code 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) Civil Procedure Code 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 com -plaint could not be pursued and was dismissed in default."

This ruling is squarely applicable to the case in hand. In view of this ruling, objection is not tenable. Hence the preliminary objection raised by the opponents is rejected. Now the case is adjourned for hearing on the point of admission to 18.11.2013". Shri Sukumar Pattjoshi, learned counsel for the petitioner has contended that the impugned order of the State Commission is not sustainable for the reason that the State Commission has failed to appreciate that Hon''ble Supreme Court in the matter of Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karkar and Anr., 2011 9 SCC 541 had held that view taken by the State Commission in the matter of New India Assurance Company Ltd. Vs. R. Srinivasan is untenable. It is further contended that as per law laid down by the Supreme Court in the matter of Rajeev Hitendra Pathak and Ors. ( supra), District Forum and State Commission do not have power to review their own decisions. It is contended that the State Commission has committed an error because entertaining the subsequent complaint on the same cause of action would indirectly amount to allowing the respondent complainant to seek review of the earlier order of dismissal of complaint in default. Learned counsel has thus urged us to allow the revision petition and set aside the impugned order.

MR . H.V.Kumarswamy, Advocate for respondent no.1 has argued in support of the impugned order and prays for dismissal of the revision petition.

WE have considered the rival contentions. The question which needs determination in this revision petition is whether in the event of dismissal of consumer complaint, a fresh consumer complaint on the same cause of action is maintainable?

UNDISPUTEDLY , the first complaint filed by the complainant was dismissed at the stage of admission vide order dated 01.03.2011. The instant complaint before the State Commission on the same cause of action has been filed within the period of limitation. It may be noted that cause of action for filing the complaint is a continuous cause of action. As per Section 18 of the Consumer Protection Act, 1986 ( hereinafter referred to as the Act), the State Commission for disposal of complaint is supposed to follow the procedure of complaint as provided in section 12 to 14 of the Act and the rules framed thereunder. There is no bar to entertain the second complaint on the same cause of action after the dismissal of first complaint for default under the provisions of the Act and Maharashtra Consumer Protection Regulations 2000 framed thereunder. Therefore, we are of the view that second complaint is maintainable provided it is within limitation in terms of Section 24 (A) of the Act, provided the second complaint is not barred by principal of resjudicata. Admittedly, the instant complaint is within limitation and the principal of resjudicata is not applicable because the complaint was dismissed for default at the stage of admission without going into the merits of the case. Thus, in our view, the State Commission has rightly dismissed the petition on maintainability relying upon the judgment of the Supreme Court in the case of New India Assurance Company Vs. R. Srinivasan, wherein it was observed in para 16 as under: "Learned counsel Mr. Kumarswami placed his reliance on the ruling laid down by the Hon''ble Apex Court in the case of New India Assurance Co. ltd. Vs. R. Srinivasan, 2000 AIR(SC) 941 In this ruling, the Hon''ble Apex Court has observed in para no. 16 as under:

This Rule 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 it of 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) Civil Procedure Code 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) Civil Procedure Code 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 com -plaint could not be pursued and was dismissed in default."

LEARNED counsel for the petitioner has vehemently argued that the State Commission has erred in relying upon the above noted judgment ignoring the fact that three members Bench of the Supreme Court in the matter of Rajeev Hitendra Pathak and Ors. have overruled said judgment.

WE have carefully gone through the judgment relied upon by the petitioner. In our view, the judgment in the matter of Rajeev Hitendra Pathak and Ors. is of no avail to the petitioner for the reason that in the said matter, the issue before the Supreme Court was whether or not the District Forum / State Commission has powers to recall / review its own order. In that regard, the Supreme Court over turned the judgment in the matter of New India Assurance Company Vs. R. Srinivasan . In the Rajeev Hitendra''s case, the Supreme Court has not considered the issue whether or not after dismissal in default of complaint, second complaint on the same cause of action is maintainable? Thus, the impugned order cannot be faulted for relying upon the judgment in the matter of New India Assurance Company Ltd. Vs. R.Srinivasan.

LEARNED Sh. Pattjoshi has also contended that State Commission has failed to appreciate that by allowing the complainant to maintain fresh complaint on the same cause of action, it has by implication reviewed its earlier order dismissing the first complaint in default. We do not find merit in this contention. Restoration of complaint and filing of second complaint are two different concepts. In the case of restoration of a complaint, date of filing of complaint for computing limitation shall relate back to date on which the complaint was filed and it would not be date of restoration of complaint. However, in the case of second complaint, for the purpose of limitation, the date of filing of earlier complaint is not relevant. Thus, in our view, when there is no bar provided in the Act or the rules framed thereunder for filing the second complaint after dismissal of complaint in default, there is no reason to deny the complainant to file the fresh complaint provided it is within limitation and is not barred by the principal of resjudicata.

IN view of the discussion above, we do not find merit in the revision petition. It is accordingly dismissed.