IMPORTANT POINT
If a complaint has been dismissed in default a second complaint is not maintainable on the same cause of action.

R.N. Mittal, President - Briefly the facts are that the complainant filed a complaint for recovery of Rs. 5,50,000/- against the respondents. It is stated in the complaint that the complainant had filed a similar complaint earlier which was dismissed in default on 27th February 1991 and that an application for restoration of the complaint was also dismissed in default on 24.2.1991. Consequently the complainant filed the second complaint on the same cause of action.

2. The question that arises for determination is, if a complaint has been dismissed in default in the presence of the respondents, whether a second complaint is maintainable on the same cause of action. Section 13 of the Consumer Protection Act prescribes the procedure to be followed by the District Forum on receipt of the complaint. Subsection 1 & 2 deal with as to how the complaint received by the Commission is to be dealt with. Sub-section(4) of the said section says that the District Forum shall have powers as are vested in a Civil Court under the Code of Civil Procedure 1908, while trying a suit in respect of,(i) the summoning & enforcing the attendance of any defendant or witness and examining the witness on oath(ii) the discovery and production of any document or other material object producible as evidence;(iii) the reception of evidence on affidavits;(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;(v) issuing of any commission for the examination of any witness; and(vi) any other matter which may be prescribed. The aforesaid provisions have been made applicable to the State Commission under section 18 of the Act, under section 27, the Commission has been empowered to impose sentence of imprisonment and/or fine to a person, in case the order of the Commission passed is not complied with by him. From a reading of the aforesaid provisions of the Act it is evidence that the State Commission has got judicial functions and all the trappings of a court.

3. It is well-settled that if a suit be dismissed in a court, no fresh suit is maintainable on the same cause of action. The remedy of the plaintiff is to file an application for restoration of the suit. The court, after hearing the parties on the application may restore the suit, if it finds that the plaintiff was unable to attend the court for sufficient cause. If the court dismisses the application, the plaintiff cannot bring a fresh suit on the same cause of action. The above said rule is based on principle of equity and justice. If the plaintiff is allowed to file a fresh suit on the same cause of action after dismissal of his earlier suit in default that will amount to harassment of defendant. In the courts both the parties are treated equally and a party cannot be allowed to harass the other.

4. Faced with the situation, the complainant has argued that the Act is a beneficent legislation and its provisions should be interpreted in favour of the complainant. He submits that in such circumstances, the complainant should be allowed to file the fresh complaint after the dismissal of his earlier complaint in default. We have given our thoughtful consideration to the arguments but we do not find sufficient reason to accept the same. It is true that the provisions of the Act should be given beneficial construction but by giving that interpretation one person cannot be allowed to harass the other for no fault on his part. Consequently we reject this submission.

5. The complainant made reference to Daryao & Others v. State of V.P. and others and Kishore Joo v. Gumman Behari Jo02 and Rakesh Kumar v. Mahindra Gas Enterprises. All the aforesaid cases are distinguishable and therefore, the complainant cannot get any benefit from the ratio therein. In Daryao's case(supra) it .was observed by their lordship that if a petition under Article 226 of the Constitution was dismissed by a High Court in limine on the ground that petitioner w