S.BAFNA vs SHALIMAR ELECTRICALS

THIS is an appeal against the order dated 28.4.1997 passed in Misc. Case No. 1227/92 by the District Consumer Disputes Redressal Forum, Indore (for short the ''District Forum'') whereby the application for restoration of the Complaint Case No. 1227/92 was dismissed.

ON the date fixed none of the parties were present. The cause assigned is that the complainant is resident of Madras, who engaged a Counsel to conduct the case. The Counsel did not appear nor instructed the complainant to remain present, therefore, the complainant could not appear. The default in appearance is based on bona fides and constitutes a sufficient cause. The District Forum did not issue the notice of the application for restoration and dismissed the complaint holding that there is no provision in the Consumer Protection Act, 1986 (for short the ''Act'') or the M.P. Consumer Protection Rules, 1987 to restore the complaint. The appellant has also not shown the sufficient cause as for the non-appearance of his representative or Counsel. The provisions of Order 9, Civil Procedure Code have not been made applicable to the proceedings under the Act. The District FORA or the State Commission on the case being called up for hearing and parties not present, nor obliged to keep the matter pending before it or to pursue the matter on behalf of the complainant, who instituted the proceedings. A party may present a fresh complaint as the bar applicable under Order 9, Rule 1, Code of Civil Procedure will not come in the way by extending the prohibition contained in Order 9, Rule 9(1) of Code of Civil Procedure. But, in Rule 4(8) of the M.P. Consumer Protection Rules there is no parallel provision as contained in Order 9, Rule 1, C.P.C. which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, Civil Procedure Code, a second suit under the same cause would not lie. Therefore, when the case is not decided on merits, the second complaint could be filed. In certain circumstances in the interest of justice on good cause being shown under inherent powers, the complaint dismissed in default can also be restored that is what recently has been held by the Supreme Court in case of New India Assurance Co. Ltd. v. R. Srinivasan, I (2000) CPJ 19 (SC)=II (2000) SLT 520. In this case it has been further observed that if a second complaint is filed to harass the opposite party in such a situation, the District Forum or the State Commission or the National Commission would not be helpless and it would be open to them on the ground of abuse of the process available under the Act and in that situation can legitimately dismiss the complaint.

In view of the above, the application for restoration would be maintainable. However, as no notice was issued and no enquiry was held about the sufficient cause, we set aside the order dated 18.9.1997 and remit this case to the District Forum for deciding the application of the appellant-complainant afresh on merits after hearing the parties. After enquiry, if the application is allowed and the complaint is restored, the complaint shall be decided within a period of 90 days from the date of restoration of the complaint. We also direct the District Forum to decide the application for restoration after notice within a period of two months from the date of appearance of the parties.

IN case the complainant fails to appear to prosecute the case, the District Forum shall be at liberty to pass appropriate orders on the application for restoration in accordance with law. In the result, the appeal is allowed and the case is sent back to the District Forum for its decision afresh. In the circumstances, parties to bear their own costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal allowed.