Supreme Court: While setting aside the National Consumer Disputes Redressal Commission’s order, the Division Bench of Madan B. Lokur and R.K. Agrawal, JJ. has held that 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.
Referring to New India Assurance Co. Ltd. v. R. Srinivasan, (2000) 3 SCC 242, wherein it was held that, the Consumer Protection Rules do not provide that if a complaint is dismissed in default by the District Forum or by the State Commission, a second complaint would not lie. There is no provision parallel to the provision contained in Order 9 Rule 9(1) of the Civil Procedure Code, 1908 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. Where the case was not decided on merits and dismissed in default of non-appearance of the complainant, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.
In the absence of any rule similar to Order 9 Rule 9(1) CPC, the Court was of the opinion that a second complaint was maintainable and remitted the matter back to National Commission for deciding the same on merits.[Indian Machinery Company v. Ansal Housing & Construction Ltd., 2016 SCC OnLine SC 76, decided on January 27, 2016]