INDIAN MACHINERY COMPANY versus M/S. ANSAL HOUSING & CONSTRUCTION LTD.

Citation: [2016] 3 S.C.R. 489 · Decided: 27-01-2016 · Supreme Court of India · Bench: MADAN B. LOKUR, R.K. AGRAWAL

Judgment (excerpt)

[2016] 3 S.C.R. 489 
INDIAN MACHINERY COMPANY 
v. 
M/S. ANSAL HOUSING & CONSTRUCTION LTD. 
(Civil Appeal No. 557of2016) 
JANUARY 27, 2016 
[MADAN B. LOKUR AND R.K. AGRAWAL, JJ.] 
Consumer Protection Act, 1986: Whether second complaint 
to the District Forum under the Act is maintainable when the first 
complaint was dismissed for default or non-prosecution - it was 
held in R. Srinivasan case that the case not decided on merits and 
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 - There is no rule similar to Order IX 
r.9(1) - In view of decision rendered in R. Srinivasan case, second 
complaint filed by appellant was maintainable on the facts of this 
case - Matter remitted to National Commission for adjudicating the 
dispute on merits - Code of Civil Procedure, 1908 - Or.IX r. 9(1). 
New India Assurance Co. Ltd. v. R. Srinivasan (2000) 3 
sec 242 - relied on. 
Case Law Reference 
(2000) 3 sec 242 
relied on 
Para5 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 557 of 
2016. 
From the Judgment and Order dated 24.05.2013 of the National 
Consumer Disputes Redressal Commission New Delhi in Revision 
Petition No. 1931 of2013. 
Amarendra Saran, Sr. Adv., Shaad Anwar, Subhash Chandra Jain, 
Advs. for the Appellant. 
Bhargava V. Desai, Kapil Kher, Ms. Saumya Mehrotra, Advs. 
for the Respondent. 
489 
A 
B 
c 
D 
E 
F 
G 
H 
490 
SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
A 
The following order of the Court was delivered 
B 
c 
D 
E 
F 
G 
H 
ORDER 
I. Leave granted. 
2. We have heard learned counsel for the pa1iies. 
3. The only question that has arisen in this appeal is whether 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. 
4. The National Commission has taken the view in the impugned 
order that the second complaint would not be maintainable. 
5. Our attention has been drawn to a decision of this Court in 
New India Assurance Co. Ltd. Vs. R. Srinivasan [(2000) 3 SCC 242] 
wherein this precise question had arisen as mentioned in paragraph 5 of 
this decision. It is mentioned in that paragraph that the only question is 
that in view of the dismissal of the first complaint filed by the respondent 
therein, a second complaint on the same facts and cause of action would 
not lie and it ought to have been dismissed as not maintainable. 
6. While dealing with this issue, this Court held in paragraph 16 
as follows: 
"This Rule [Rule 9(6) of the Tamil Nadu Consumer 
Protection Rules, 1988] 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 of it 
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 ifa 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) CPC which 
contains a prohibition that ifa 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( I) CPC cannot 
INDIAN MACHINERY COMPANY v. M/S. ANSAL HOUSING & 
491 
CONSTRUCTION LTD. 
be extended to the proceedings before the District Forum 
or the State Commission. The fact that the case was 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 cou Id not be pursued 
and was dismissed in default." 
7. We have also not been shown any rule similar to Order IX, 
Rule 9( I) of the Code of Civil Procedure, 1908. That being so, and in 
view of the decision rendered by this Court, with which we have no 
reason to disagree, we are of the opinion that the second complaint filed 
by the appellant was maintainable on the facts of t

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