Case: New India Assurance Co. Ltd Vs. R. Srinivasan

District Forum or before the State Commission. Sub-rule (6) of Rule 9 provides as under :- "(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State commission. If appellant or his authorised agent fails to appear on such date, the State commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If the respondent or his authorised agent fails to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case." 16. 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) 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. 17. But that is not the end of the matter. Mahmood, J. in his dissenting judgment in the Full Bench case of Narsingh Das v. Mangal Dubey & Ors. , ILR (5) Allahabad 163, observed: "The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought is prohibited by the rules of procedure applicable to the Courts of Justice in India." 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 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.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 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or for the matter, before the national Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act.This Rule is in identical terms with(8) of Rule 4 and(8) of rule 8. Under thisthe 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) 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 ofof 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.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 orbody 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 orbody. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint forso also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for theof the complainant.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 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent.