Second consumer complaint on same cause of action is maintainable after dismissal for default, if within limitation and not barred by res judicata.

Judgement

1. THE petitioner / opposite party being aggrieved of rejection of his preliminary objection regarding maintainability of the complaint has preferred this revision against the order of State Commission Maharashtra, Mumbai in CC No. 11/283.

2. BRIEFLY stated, the facts relevant for the disposal of the revision petition are that respondent no.1 earlier filed CC No. 11/2005 against the petitioner before the State Commission Maharasthra. The said complaint was dismissed for non prosecution vide order dated 01.03.2011. The respondent complainant filed application dated 15.04.2011 for restoration of complaint. The said application was, however, unconditionally withdrawn by the counsel for the respondent complainant and it was dismissed vide order dated 24.02.2012. Thereafter, the complainant filed subject claim in the State Commission on same cause of action. The petitioner on being served with the notice filed an application taking preliminary objection to the maintainability of the complaint on the ground that the complainant had earlier filed the complaint on the same cause of action which came to be dismissed on 01.03.2011. Thus, second complaint on the same cause of action is not maintainable.

3. STATE Commission after hearing the parties relying upon the judgment of Apex Court in the matter of New India Assurance Company Vs. R.Srinivasan, 2000 AIR(SC) 941 rejected the preliminary objection. The relevant observations of the State Commission are reproduced as under:

"It is admitted fact that earlier complaint filed by the complainant was dismissed for want of non -prosecution. Thereafter, the complainant had filed an application for restoration of complaint. Later on, he had withdrawn the same. During the course of arguments, learned counsel for the opponents have placed reliance on ruling laid down by the Hon''ble Apex Court in case of Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Ors. Passed in Civil Appeal No.4307/2007 on 19.08.2011, judgment passed by the Hon''ble National Commission in the case of SAS Motors Ltd. Vs. Anant Haridas Chodhar, 2013 3 CPJ 520 and the judgment passed by this Commission in the case of HDFC Standard life Insurance, Solapur Branch Vs. Mr. Dilip Shridhar Sapatnekar passed in First Appeal No.A/09/90 on 31.01.2013. It is to be noted here that the first complaint filed by the complainant was not decided on merit. The present complaint is filed within limitation. Cause of action is continuous cause. There is no bar to entertain the second complaint under provisions of the Consumer Protection Act, 1986. The complainant has not asked for review of order or to set aside order.

Learned counsel Mr. Kumarswami placed his reliance on the ruling laid down by the Hon''ble Apex Court in the case of New India Assurance Co. ltd. Vs. R. Srinivasan, 2000 AIR(SC) 941 In this ruling, the Hon''ble Apex Court has observed in para no. 16 as under:

This Rule 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 it of 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) Civil Procedure Code which c