RAJINDER PRASAD vs ANSAL PROPERTIES(P) LTD.

VIDE impugned order dated 31.5.2002 the complaint, filed by the appellant, before the District Forum was dismissed on the ground that the same was not maintainable as a civil suit on the same cause of action was filed earlier which was dismissed in default on 27.10.1993.

IN the instant appeal the appellant has assailed the impugned order on the ground that the District Forum has erred in holding that his complaint alleging deficiency in service on the part of the respondent in cancelling the plot allotted to him at Sushant Lok for non-payment instalments, was not maintainable as the appellant had on the same cause of action earlier filed a civil suit for declaration which had been dismissed in default. We are, however, unable to sustain the finding of the District Forum that the complaint, filed before it was not maintainable because the same was not decided on merits but was dismissed in default as per admitted facts and, therefore, the principle of res judicata would not apply. Even otherwise under Section 3 of the Consumer Protection Act a separate and additional remedy is available to a consumer. As regards the aspect of limitation is concerned the learned District Forum failed to consider the condonation of delay application filed by the appellant along with the complaint.

Therefore, the impugned order passed by the District Forum is not sustainable and is accordingly set aside. The case is remanded back to the concerned District Forum for decision of the condonation of delay application and as the case may be decision of the case on merits. Since the matter is an old pending matter the District Forum is directed to decide the same as expeditiously as possible.

BANK Guarantee/FDR, if any, furnished by the appellant be returned forthwith. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal allowed.