Delhi

StateCommission

A/14/2020

MS. MEENA VIDROHI - Complainant(s)

Versus

M/S PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

04 Feb 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

First Appeal No. 14/2020

(Arising out of the order dated 20.11.2019 passed in Complaint Case No.101/2019 by the District Consumer Disputes Redressal Forum-VI,  Vikas Bhawan, New Delhi)

 

 

Ms. Meena Vidrohi                                                                   … Appellant

 

 

Versus

M/s Parasnath Developers Ltd.                                                … Respondent

 

 

BEFORE:

Ms. Salma Noor, Presiding Member

 

For the Appellant:	Mr. Navdeep Singh, Counsel for Appellant.

 

Dated: 04^rd  February, 2020

ORDER

Ms. Salma Noor, Presiding Member

 

                 By way of this appeal prayer is made for recalling of the order dated 20.11.2019 passed by the Consumer Disputes Redressal Forum-VI, Vikas Bhawan, New Delhi in CC No. 101/2019 by which the complaint filed by the appellant herein i.e. complainant before the District Forum has been dismissed.  

                 Perusal of the order sheet shows that the appellant/complainant had earlier filed a complaint before the District Forum alleging deficiency in the service on the part of the respondent/OP. The said complaint was dismissed by the Ld. District Forum vide its order dated 06.09.2018 for non-prosecution. Thereafter, the appellant/complainant filed the present complaint before the District Forum, which was dismissed by the Ld. District Forum by observing that the admission of the complaint would lead to review of the dismissal order passed by the Forum earlier on 06.09.2018.

                 Now the question arose whether the second complaint under the Consumer Protection Act is maintainable when the first complaint has already been dismissed for default or non-prosecution.

                 In New India Insurance Co. Vs. R. Sirinivasan (2000) 3 SCC 242 an identical issue arose wherein the Hon’ble Court has held as under in para 16 as follows:-

 

This rule [Rule 9(6) of the Tamil Nadu Consumer Protection Act, 1988] is in identical terms with sub-rule 8 of Rule 4 and sub-rule 9 of Rule 8. Under the 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 fo 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. ”

 

 

                 Similar issue again came up before the Hon’ble Apex Court in Civil Appeal No.557/2016. The Hon’ble Apex Court relying upon the aforesaid judgment was pleased to allow the appeal and remit the matter back to the National Commission for adjudicating the disputes on merits.

                 In view of the above decisions by the Hon’ble Supreme Court the second complaint filed by the appellant/complainant is maintainable on the facts of the case. Accordingly, I accept the present appeal, set aside the impugned order and restore the complaint to its original position.

                 Appellant/complainant is directed to appear before the District Forum on 18.03.2020.  Thereafter, District Forum shall proceed in the matter in accordance with law.

                 File be consigned to Record Room.  

 

 

(Salma Noor)

Presiding Member