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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

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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

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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