State Consumer Disputes Redressal Commission
Ludhiana Beverages Pvt. Limited vs Jagvinder Singh on 2 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Revision Petition No.86 of 2013
Date of institution : 23.12.2013
Date of decision : 02.04.2014
Ludhiana Beverages Pvt. Limited, 185, G.T. Road, Ludhiana-141
003 through its Chief Executive Shri S.D. Chhabra.
.......Petitioner - Opposite Party No.2
Versus
1. Jagvinder Singh son of Mukhtiar Singh, resident of Village
Kanoi, P.O. Kheri, Tehsil and District Sangrur.
......Respondent-Complainant
2. M/s Sehaj Ram Ram Kishan Dass, 29, New Grain Market,
Sangrur through its proprietor.
......Respondent- Opposite Party No.1
Revision Petition against the order dated
7.11.2013 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the petitioner : Shri Sanjeev Goyal, Advocate. For the respondents : Ex parte.
JUSTICE GURDEV SINGH, PRESIDENT :
The petitioner-opposite party No.2 has preferred this revision against the order dated 7.11.2013 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "District Forum"), vide which the application filed by him for dismissal of the complaint on the ground that the first complaint had been dismissed in default of appearance, was dismissed.Revision Petition No.86 of 2013. 2
2. The facts, to be taken notice of, for the disposal of the present revision, are that Jagvinder Singh filed complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against M/s Sehaj Ram Ram Kishan Dass-opposite party No.1 and the present petitioner as opposite party No.2, for directing them to pay Rs.25,000/- on account of unfair trade practice, Rs.15,000/- as compensation for mental agony and harassment and Rs.7,700/- as litigation expenses on the ground that foreign article/poisonous substance was found in the bottle of Limca manufactured by opposite party No.2 and purchased by him from its dealer opposite party No.1. The petitioner/opposite party No.2 filed an application for dismissal of the complaint under Section 11 and under Order 9 Rule 8 & 9 of the Civil Procedure Code on the ground that first Complaint No.593 dated 13.12.2012 filed by the complainant on the same cause of action had been dismissed in default on his non- appearance on 8.4.2013 and the second complaint on the same cause of action was not maintainable. The application was opposed by the complainant and he filed reply to the same. He pleaded that the provisions of Civil Procedure Code, as mentioned in the application, were not applicable in the consumer cases and that in the previous complaint he did not appear under the impression that the case was fixed for filing of written reply by the opposite parties and his counsel could not appear, as he was busy in other judicial courts. He also pleaded that the application was not maintainable in view of the law laid down by the Hon'ble Supreme Court in AIR 2000 Supreme Court 941/CLT (1) 414 (SC) (New India Assurance Revision Petition No.86 of 2013. 3 Company Limited v. R. Srinivasan) and 206(1) CLT 371 (NC) (Deepak Jaiswal v. Oriental Insurance Company Limited). The District Forum after going through the averments of the parties and hearing learned counsel on their behalf and taking into consideration the law laid down in R. Srinivasan's case (supra) dismissed the application by holding that the provisions of CPC were not applicable.
3. We have heard learned counsel for the petitioner and have carefully gone through the records, which were called for the disposal of this revision.
4. It was submitted by the learned counsel for the petitioner/opposite party No.2 that the District Forum could not have entertained the second complaint when the first had been dismissed in default of appearance as the same amounts to the recalling of that order of dismissal and the District Forum committed an illegality by holding to the contrary.
5. Correct findings were recorded by the District Forum to the extent that the provisions, as contained in the Civil Procedure Code were not applicable to the proceedings under the Act. However, it is to be seen whether second complaint on the same cause of action could have been maintained by the complainant when the first had been dismissed in default of his appearance. The District Forum relied upon R. Srinivasan's case (supra) while recording a finding in favour of the complainant that the second complaint was maintainable. It was held by the Hon'ble Supreme Court in Jyotsana Arvind Kumar Shah and others v. Bombay Hospital Revision Petition No.86 of 2013. 4 Trust [1999(4) SCC 325] that this judgment given in R. Srinivasan's case (supra) does not lay down correct law. That issue was discussed in detail by us in Consumer Complaint No.52 of 2014 (KULWINDER SINGH v. TOYOTA KIRLOSKAR MOTOR PVT. LTD. AND OTHERS) decided on 1.4.2014. The relevant portion of that judgment is reproduced hereunder:-
"5. Rule 4.8 of the Consumer Protection (Punjab) Rules, 1987 provides for that eventuality and the same is reproduced below:-
"4.8 If during the proceedings conducted under section 13, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorized agent to appear before the District Forum on such date of hearing or any other date to which hearing could be adjourned. Where the complainant or his authorized agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint for default or decide it on merit. Where the opposite party or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex parte."
According to Section 18 of the Act, the provisions of Section 12, 13 and 14 and the Rules made thereunder are applicable for the disposal of the complaints by the State Revision Petition No.86 of 2013. 5 Commission with such modifications as may be necessary. Thus, the above said Rule was applicable to the proceedings before this State Commission while dealing with the Consumer Complaints. According to Section 24 of the Act, every order passed by this Commission was to be final if no appeal had been preferred against that order. According to Section 19 of the Act, appeal was competent against the above said order before the Hon'ble National Commission. Admittedly no such appeal was filed.
6. While dealing with the powers of the Fora under the Act as quasi-judicial bodies, it was held by the Hon'ble Supreme Court in para no.18 of R. Srinivasan's case (supra) as under:-
"18. We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every Court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the Court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the Court or, for, that matter, of judicial or Revision Petition No.86 of 2013. 6 quasi-judicial body. In the absence of the complainant, therefore, the Court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant."
7. While dealing with the question whether it was permissible to file a second complaint when the first had been dismissed in default of non-appearance, the question was answered in the affirmative and it was held as under:-
"The fact that the case 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."
8. It also dealt with the eventuality of the complainant filing the complaints repeatedly in order to harass the opposite party. The following observations were made in para no.19 of the aforesaid judgment:-
Revision Petition No.86 of 2013. 7
"19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National Commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. This practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the act. They can, in that situation, legitimately invoke the principles of Order 9, Rule 9, C.P.C."
9. In "Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another" 2011(4)CLT 527 the main question which came up before the Full Bench of the Hon'ble Supreme Court was whether District Consumer Forums and the State Commissions have the powers to set aside their own orders or in other words have the powers to review/recall their own orders? In that case the appellants relied upon the judgment in the Revision Petition No.86 of 2013. 8 case of Jyotsana Arvind Kumar Shah and others v. Bombay Hospital Trust [1999(4) SCC 325] in which the Hon'ble Supreme Court had held that the State Commission did not have the power to review or recall its ex parte order. It came to the notice of the Full Bench that the contrary view was taken in R. Srinivasan's case (supra) in which it was held that the State Commission could review or recall its ex parte order. It was held by the Full Bench that the decision in Jyotsana Arvind Kumar Shah's case (supra) laid down the correct law and the view taken in the later decision in R. Srinivasan's case (supra) was untenable and cannot be sustained. Therefore, on the basis of the judgment relied upon by the learned counsel for the complainant (R. Srinivasan's case) it cannot be held that the second complaint on the same cause of action is maintainable. The entertaining of the complaint will amount to recalling of the order, vide which the first complaint was dismissed for want of prosecution. Recently the same question cropped up before the Hon'ble National Commission in "ANSAL HOUSING AND CONSTRUCTION LTD. v. INDIAN MACHINERY COMPANY" III(2013) CPJ 304 (NC). In that case the first complaint was dismissed for non- appearance. It was held that the filing of second complaint on the same facts and circumstances has not been provided as per the established legal provisions. Revision Petition No.86 of 2013. 9
10. In view of our above discussion, we conclude that the second complaint is not maintainable and, as such, the complainant cannot be permitted to proceed with the same and the same is hereby dismissed without prejudice to his rights to avail of the proper remedy under the Act."
6. Therefore, we conclude that the second complaint by the complainant was not maintainable and the findings recorded to the contrary by the District Forum suffer from illegality and are liable to be set aside.
7. Accordingly we accept the revision. The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed as non-maintainable, without prejudice to his rights to avail of the proper remedy under the Act.
8. The arguments in this case were heard on 24.3.2014 and the order was reserved. Now, the order be communicated to the parties.
9. The revision could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) April 02 , 2014 MEMBER Bansal Revision Petition No.86 of 2013. 10