SHANTI AUTO (P) LIMITED vs PRAVEEN BEN GEORGE

THE revision is directed against the order dated 19.5.2000 in O.P. 433/1999 on the file of the Consumer Disputes Redressal Forum, Thiruvananthapuram. Opposite parties in the said O.P. are the revision petitioners. Respondents filed the said O.P. alleging manufacturing defect and for redressal for the same. Revision petitioners/opposite parties raised a preliminary point maintaining that the complaint is not maintainable. THE case was that this complaint was filed without complying with the order on O.P. 140/1999 filed by the respondent and hence the present complaint, O.P. 433/1999 is not maintainable. THE precise point raised by them was that the application by the complainant for withdrawal of the complaint was allowed on condition to pay Rs. 300/- as costs; and since O.P. 433/1999 was filed without payment of the said costs, the complaint is not maintainable. By the impugned order the District Forum over-ruled the said objection and held the complaint is maintainable. It is against the said order that this revision is filed.

IT is urged by the learned Counsel that the view taken by the District Forum that the complaint is maintainable cannot be supported as on the date of filing the complaint the condition in the order dated 10.9.1999 was not satisfied; the complaint was incompetent. He made reliance on the decision of the Bombay High Court reported in AIR 1971 Bombay 220, Wasudeo Bakaram Kurve v. Ramdayal Puna Bisne. On the other hand the learned Counsel for the respondent/complainant urged that it is not open to the revision petitioner now to contend that the complaint is not maintainable as he has already received the costs directed to be paid, though such payment was after the institution of the complaint. He maintained that even the revision petitioners themselves had required the withdrawal of the previous complaint. The two questions that would arise for consideration in the context of the rival arguments are, what is the effect of the order dated 10.9.1999 in O.P. 140/1999; and the other point is, whether by acceptance of the costs at a later stage would constitute waiver. The order dated 10.9.1999 is at page 11 of the paper book, the operative portion reads : "Withdrawal allowed on cost Rs. 300/-". Admittedly the respondent wanted to withdraw that complaint invoking the jurisdiction under Order 23 Rule (1) of C.P.C. It was on the aforesaid application, the District Forum passed the order. The order does not fix a date for payment of the cost. The said part of the order is open to an interpretation that withdrawal was allowed but the petitioner has to pay Rs. 300/- as cost. If that is so, on failure to pay cost it would be open for the opposite party/appellant to execute the said part of the order and realise the aforesaid cost. Even interpreting the said part to mean, the withdrawal is allowed on condition that the petitioner pays Rs. 300/- as cost, the question for consideration is whether the second complaint could be instituted without payment of the said cost. In page 3 of the revision petition the petitioner states that pending O.P. 433/1999 the respondent''s Counsel approached the second appellant and wanted the latter to accept cost of Rs. 300/- and that the amount was duly accepted by the second appellant. Though the cost was not paid before the institution of O.P. 433/1999, the same was accepted pending the said O.P. Question is whether after accepting the cost it is open to the revision petitioners to maintain that the complaint is not maintainable as the cost was not paid before the institution of the said complaint.

Learned Counsel for the revision petitioner in support of his argument that the same would not constitute waiver and hence it would be open to him to contend that the complaint is not maintainable relied on the decision in Wasudeo Bakaram Kurve v. Ramdayal Puna Bisne (supra). The facts of the said case shows that the withdrawal was allowed on payment of costs within two months of the said order; the cost was deposited after the expiry of the said two months when the second suit was pending and the defendant''s lawyer withdrew the said cost so deposited beyond the time prescribed. The Trial Court dismissed the suit finding on the preliminary point that the suit is not maintainable. There was an appeal before the District Court, the appeal was also dismissed, it was then the plaintiff approached the Bombay High Court. In para 8 of the said decision, the decision of the Bombay High Court AIR 1950 Bombay 113 is adverted therein, the difference is mentioned in para 8, the Pleader of the plaintiff offered the costs while the appeal against the suit was pending before the District Court and the Pleader for the defendant accepted that payment of the costs. It is stated therein, "they filed a joint purshis to the effect that the plaintiff had fulfilled the conditions laid down as precedent to his being entitled to file the suit and, therefore, the suit might be taken as competent from that date". Thus on that point the decision in AIR 1950 Bombay 113, Ramakrishna Timmappa v. Hanumant Patgavi, was distinguished. Para 9 of the said decision considers the question of "waiver" and states, waiver is the abandonment of a right, either express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it and allow the contract or transaction to proceed. In that decision it was held that the deposit of the cost, at a latter stage and withdrawal of the same need not constitute waiver.

HERE the statement of facts in page 3 of the paper book would show that without any reservation the revision petitioners accepted the cost offered after the institution of O.P. 433/1999. Once it is found that waiver could be either express or implied one cannot insist that there should be something in writing to constitute waiver. Waiver can be inferred from the conduct of a party. The precise question in such situation would be whether the person alleged to have waived could have had the intention to abandon his right. "Intention" is a condition of mind, the same, therefore, is not capable of direct evidence, but it is a matter for inference from the attending circumstances and evidence. In this case there is a positive indication that when the revision petitioner accepted the cost he intended to accept the same as the compliance of the condition in the order dated 10.9.1999. Pages 9 and 10 of the paper book contain the written version filed by the opposite party in O.P. 140/1999. In para 7 of the said version the opposite party/revision petitioner contended that the complainant has to be directed to withdraw the said O.P. with liberty to file a fresh O.P. on the same cause of action. The same would show that the revision petitioner also wanted and insisted that the complainant/respondent has to be directed to withdraw the said O.P. with liberty to file a fresh O.P. on the same cause of action. Then the complainant moved for withdrawal which was allowed on payment of cost, cost was accepted by the revision petitioners. In the context of the aforesaid averment in para 7 of the said version it is not open to the revision petitioner to turn round and say that the complaint is not maintainable. In the said para revision petitioner did not even want costs to be paid as a condition for allowing the complainant to withdraw the complaint with permission. Yet, the District Forum allowed cost, which the complainant paid and the revision petitioner accepted. Then, inference is spontaneous from the said sequence that the opposite party/revision petitioner was satisfied with the compliance of the order dated 10.9.1999 else he could not have accepted the said cost. The conclusion reached by the District Forum cannot be assailed at the hands of the revision petitioners. We see no merit in the revision, the revision is liable to be dismissed, which accordingly is dismissed. Revision Petition dismissed.