MADAN MOHAN LAL vs S.D.O (WEST) HSEB

THIS appeal is concluded against the appellant by the decision of this Commission in I (1992) CPJ 334, Gurcharan Singh of Barara v. Shashi Bhushan of Barara & Others, it therefore, suffices to notice the relevant facts in their barest outline.

THE focal issue herein lies in a narrow compass. It is not in dispute that for the identical cause of action the appellant had preferred a complaint way back on the 14th of February, 1991 before the District Forum at Ambala. However, on the material date i.e. the 6th of February, 1992, neither the complainant nor his Counsel were present and the same was therefore dismissed, in default. THEreafter, on the 12th of February, 1992, an application for the restoration of the complaint was made by the appellant which came to be listed on the 3rd of March, 1992. On that date, a request was made on behalf of the appellant that they wanted to file a fresh complaint and consequently the said application was dismissed. Thereafter on the same day namely the 3rd of March, 1992, a fresh complaint which is virtually a carbon copy of the earlier one for the identical relief was filed. In defending the same the respondents inter-alia look up the firm ground that the appellant''s earlier complaint No. 87 of 1991 had been dismissed in default and no second complaint was consequently maintainable. The District Forum found force in the above said objection and dismissed the case at the very threshold on the ground of its non-maintainability.

Faced with the uphill task of overcoming the virtually unsurpassable legal bar against him Mr. Vikas Suri, learned Counsel for the appellant had nevertheless painstakingly projected the appeal. It was first sought to be argued that the dismissal of the original complaint in default was not justified and the District Forum despite the absence of the complainant appellant should have proceeded to decide the case on merits on the basis of the existing evidence on the record.

WE are unable to find any merit in the submission aforesaid. As is manifest from the record, the present appeal is directed against the order of the District Forum dated the 14th of September, 1992. Consequently, the question of the earlier dismissal in default seven months earlier on the 6th of February, 1992 is wholly alien to the case at this stage. It is common ground that the appellant himself first chose to seek the restoration of the complaint and then on his own he evinces a desire to file a fresh complaint and did not press for restoration. In this situation, it is somewhat plain that the order dated the 6th of February, 1992 having neither been challenged by way of appeal or revision has achieved finality and no argument about its validity can be entertained at this stage. Mr. Suri then made a vain attempt to distinguish the present case and to take it out of the ratio in Gurcharan Singh v. Shashi Bhushan (supra). It was contended that the facts in the said case were somewhat different from the present one and therefore, the rigor of that rule may not be applied herein.

WE regret our inability to find any point of distinction in the present case qua Gurcharan Singh of Barara v. Shashi Bhushan of Barara & Others (supra). Therein, after a somewhat in depth analysis of the matter it was concluded as under:- "In the light of the aforesaid discussion, the answer to the question posed at the outset is rendered in the affirmative. It is held that though the letter of Order 9 Rule 9 is not in strictitude applicable yet the spirit and the rationale behind it is attracted in an identical situation to the consumer disputes as well."

In the way of the aforesaid ratio it necessarily follows that apparently the first complaint was dismissed in default whilst the opposite party had remained present, no second complaint on the same cause of action is maintainable. Herein, the said ratio fits the present case like a glove and therefore, must necessarily be governed by it. Lastly, as an argument of desperation it was sought to be contended that the present appeal be treated as a revision and the whole proceedings from the very inception be set-aside. Some support was sought to be drawn from I (1992) CPJ 163, T.P. Chaturvedi v. Deomani Kotedar. The aforesaid last submission has only to be noticed and rejected. It is somewhat elementary that where a statutory appeal lies a revision therefor cannot be entertained. Herein, the appellant''s complaint has been dismissed and on his own showing he has preferred an appeal which is plainly maintainable under Section 15. Consequently, there is no scope for converting it into a revision nor the least ground for interference in that limited jurisdiction has been made out in the present case. On a close perusal of the decision in T.P. Chaturvedi v. Deomani Kotedar (supra), it is somewhat plain that the same is totally off the mark and has little or no relevance to the issue.

FOR the foregoing reasons, this appeal is without merit and is hereby dismissed. However, we would not wish to burden the consumer-appellant with any costs. Appeal dismissed.