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Second complaint - Maintain - First complaint - default - non prosecution - dismissed - Provisions of Order 9 Rule 9 of CPC do not apply to Consumer Act

In INDIAN MACHINERY COMPANY Vs M/S. ANSAL HOUSING & CONSTRUCTION LTD., the Hon'ble Supreme Court stated that 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.

The National Commission has taken the view in the impugned order that the second complaint would not be maintainable.

The Hon'ble court decided that there is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a 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(1) CPC cannot 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 could not be pursued and was dismissed in default.
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