BIR BAHADUR BHATT SHARMA vs SANTOSH TRADING COMPANY

THIS appeal by the complainant is directed against the order dated 28.11.1994, passed by the District Forum, Bhojpur at Ara in Complaint Case No. 158 of 1994. By the impugned order the District Forum dismissed the complaint of the complainant on the ground that the complaint is based on the same facts on which Complaint Case No. 135 of 1993 filed earlier by the complainant was based and the parties of both the complaint cases were the same. Further ground for dismissal of the complaint is that Complaint Case No. 135/93 had been dismissed earlier and the petition for the restoration of the same had also been dismissed.

IT appears that the complainant (appellant) had filed Complaint Case No. 135 of 1993 against the Manager, Punjab National Bank, Charpokhari, Prakhand Vikas Padadhikari, Charpokhari and Zila Gramin Vikas Abhikaran, Bhojpur, stating therein that he on 27.1.1989 had taken loan of Rs. 13,300/- from the said bank for the purpose of boring and installation of pump, but the boring went out of order due to the pipes and the pump being old and as a result of that the purpose of irrigation of the fields was not served and under the circumstances he was not in a position to pay back the loan with interest. On the aforesaid allegation the complainant had prayed for exonerating him from payment of the loan. IT further appears that the said Complaint Case No. 135 of 1993 was dismissed by the District Forum vide order dated 26.5.1994 on the ground that the complaint was not maintainable before a Consumer Forum and the Complainant was absenting himself from the Forum. IT further appears that a petition for restoration of complaint Case No. 135 of 1993 was filed by the complainant which was dismissed by the District Forum vide order dated 8.6.1994 on the ground that the complaint had been dismissed on merit on the ground of non-maintainability thereof before a Consumer Forum. No appeal/revision was preferred by the complainant against the order dated 26.5.1994 whereby Complaint Case No. 135/93 had been dismissed and against the order dated 8.6.1994 whereby the restoration petition had been dismissed by the District Forum and under the circumstances both the orders became final. Thereafter the complainant on 6.7.1994 filed Complaint Case No. 158 of 1994 which was dismissed by the District Forum vide the impugned order dated 28.11.1994 on the grounds as mentioned in para one of this order and hence this appeal. As mentioned earlier, Complaint Case No. 158/94 has been dismissed by the District Forum vide the impugned order on the ground that this Complaint Case (158 of 1994) is based on the same facts on which Complaint Case No. 135 of 1993 was based and the parties in both the cases were the same and Complaint Case No. 135/93 having been dismissed earlier, no order can be passed in this case (Complaint Case No. 158/94). The record of the District Forum with regard to Complaint Case No. 158 of 1994 have been received. Certified copy of the complaint petition of Complaint Case No. 135 of 1993 has been filed by the learned Counsel for the appellant. A perusal of both the complaint petitions shows that complainant is the same in both the cases. It further appears that Manager, Punjab National Bank and Prakhand Vikash Padadhikari, Charpokhari were opposite parties in Complaint Case No. 135/93 and they are opposite parties in Complaint Case No. 158/94 also. So the Bank from which loan had been taken was party in the earlier case and is party in Case No. 158/94 also. In Complaint Case No. 135/93 Zila Gramin Vikas Abhikaran, Bhojpur was opposite party No. 3, but he has not been impleaded as opposite party in Complaint Case No. 158/94. Instead one Ramchandra Gupta has been impleaded as one of the opposite parties in Complaint Case No. 158/94. As regards the parties, this is the only difference. As pointed out earlier, the complainant in Case No. 135/93 had prayed for exonerating him from payment of the loan taken by him. The complaint petition of Case No. 158/94 will show that the same relief has been sought in this case also. Of course there is further prayer for compensation also. In view of the above facts it was contended on behalf of the respondent that the District Forum was perfectly justified in dismissing the Complaint Case No. 158/94 on the grounds mentioned in the impugned order. There appears much force in this contention.

The learned Counsel for the appellant contended that Complaint Case No. 135/93 had been dismissed vide order dated 26.5.1994 on the ground of non-joinder of necessary party, and hence second Complaint Case No. 158/94 was filed after impleading the person who had supplied the pumping set and pipes for boring. A perusal of the order dated 26.5.1994 shows that it had been pointed out by one of the opposite parties that the person who had manufactured the pipe and pump of the boring had not been impleaded as party but the District Forum had not dismissed the complaint on this ground. Rather the same had been dismissed on the ground of non-maintainability of the case before Consumer Forum and the absence of the complainant. So the above contention of the learned Counsel for the appellant has got no merit. Even if it is accepted for argument sake that non-joinder of necessary party was one of the grounds for dismissal of Complaint Case No. 135/93, the same would not justify filing of fresh Complaint Case No. 158/94 on the same facts.

IT was further contended on behalf of the appellant that Complaint Case No. 158/94 is not between the same parties and hence was maintainable. IT has already been pointed out earlier that the parties are the same with one exception that one Ram Chandra Gupta has been impleaded in place of Zila Gramin Vikas Abhikaran. In this connection it was contended by the learned Counsel for the respondent that one of the opposite parties has been changed by the complainant with a view to create basis for saying that parties are not the same. This contention cannot be said to be without substance. It may be pointed out that the loan is said to have been taken on 27.1.1989. The date of boring and installation of pumping set has not been disclosed either in the complaint petition of Case No. 135/93 or in the complaint petition of Case No. 158/94. Since the boring and pumping set were meant for irrigation purposes, the complainant must have got the boring done and pump installed at the earliest, even if it is assumed that the boring was done at the end of 1989, filing of Complaint Case No. 158/94 in the year 1994 will be barred by limitation. Such plea has been taken in the written statement filed by the opposite party Punjab National Bank before the District Forum. However, the District Forum has not made it a ground for dismissal of Complaint Case No. 158/94.

BY the way it may also be pointed out that Santosh Trading Company, Piro is not a party to Complaint Case No. 158/94 but has been impleaded as respondent No. 1 in this appeal. Prakhand Vikash Padadhikari, Charpokhari is opposite party No. 3 in Complaint Case No. 158/94, but he has not been impleaded as respondent in this appeal. In this way the memo of appeal is defective. From the above discussion it is apparent, that there is no merit in this appeal and the impugned order does not call for any interference by this Commission. In the result, this appeal is hereby dismissed. There will be no order as to cost. Appeal dismissed.