Today is fixed for order on the MA being No. 148/2022 which was filed by the OP seeking dismissal of the case on the ground that it is not maintainable.

We have taken into consideration the contents of the MA and other material on record and also the submission advanced by the Ld. Advocates on both sides for and against the prayer. According to the Ld. Advocate of the Ops the complainant who once filed CC/905/2018 for the self-same cause of action before the Hon’ble State Commission and also got the same dismissed for default on 22.02.2022 has filed the instant case before this District Commission on 20.05.2022 and therefore the present case is not at all maintainable.

On the other hand, it has been contended by the Ld. Advocate appearing for the complainant that since CC/905/2018 was not disposed off on merit the present case filed for the same cause of action before the District Commission is quite maintainable. He has relied upon a decision of the Hon’ble Apex Court issued in Civil Appeal No. 557/2016. The Hon’ble Apex Court has opined that the since the first case was not decided on merit and was dismissed in default for non-appearance of the complainant it would be permissible to file a second complaint with explanation as to why the former complaint could not be pursued and was dismissed for default. The petition of complaint bears an acceptable explanation in support of non-appearance of the complainant on the specified date (vide Para No. 15) of the petition of complainant keeping in view of such explanation and in the light of the observation of the Hon’ble Apex Court made in Civil Appeal No. 557/2016 it may be opined that the present case is quite maintainable.

Therefore, the MA filed being No. 148/2022 on behalf of the OP calls for no action and hence rejected.

13.03.2023 is fixed for filing evidence on affidavit by the complainant.