ORDER (ORAL)         

          The present Appeal has been filed against the order dated 09.05.2018 of the State Consumer Disputes Redressal Commission, Rajasthan, Bench No.1 (for short “the State Commission”) in Complaint Case No.43 of 2017.  The Complaint was allowed on merits.

2.      Vide this Appeal and also during the course of arguments, learned Counsel appearing on behalf of the Appellant has challenged the findings of the State Commission only on the issue

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of maintainability of the Complaint and has not pressed for the findings of the State Commission on merits.  Therefore, arguments are heard only on the point of maintainability of the Complaint.

3.      The brief admitted facts of the case are that the Complaint was filed on 18.04.2017 before the State Commission.  The contention of the Complainant/Respondent was that he had booked a flat in the project of the Appellant called Coral Shubh Niwas, Udaipur and had paid an amount of ₹24,69,750/-.  His further contentions were that the Appellant had promised to hand over the possession to him in April 2013 but had failed to hand over the possession till the date of filing of the Complaint in the year 2017 and prayed for delivery of the possession of the flat along with compensation, interest, litigation costs etc.

4.      The Appellant, however, took the plea that they had never promised to hand over the possession in April 2013.  It was also submitted that the delay had occurred due to shortage of building material etc. and that they were ready to give the possession and had not committed any deficiency.  In the written statement, the Appellant had also taken the plea that the Respondent/Complainant had earlier filed a Complaint No.140 of 2018 before the District Forum which he withdrew on 21.03.2017

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without seeking permission to file fresh Complaint and hence this second Complaint No.43 of 2017 before the State Commission was liable to be dismissed.  The State Commission dealt with this issue and after hearing the contentions of the parties and going through the case laws relied upon by the parties and perusing the evidences on record, has held as under:

                    “The first contention of the non-applicant is that earlier for same cause of action complaint was filed which was withdrawn and no liberty was given to the complainant to file fresh complaint.  Hence, this second complaint is not maintainable and non-applicant has relied upon the judgment passed by the Punjab State Commission, Chandigarh in First Appeal No.127/2013 Rakesh Kumar Vs. Iqbal Singh were in first complaint compromise was arrived which was not honoured and second complaint was not found maintainable.  Further reliance has been placed on the judgment passed by Punjab State Commission in First Appeal No.331 of 2011 Bipin Kumar Vs. Dr. J. J. singh where also second complaint was not found maintainable as the original complainant was died.  She had filed complaint during her life time which was withdrawn and legal heirs have filed second complaint.  Further reliance has been placed on judgment of Punjab State Commission in First Appeal No.1784/2010 Munish Gupta vs. Madhuban Steel Sales where no permission was sought from the District

Forum to file the second complaint and contention of the non-applicant is that