IMRAN MAJEED VS IDEA CELLULAR LTD

CC/16/2017.

03.04.2017.

Present:    Shri Mohd. Izhar, Adv. for complainant.

                Shri Ashish Grover, Adv. for OP No.1.

                OP No.2 is exparte.

1.             Today, the case is fixed for consideration on the application filed by OP number 1 for dismissal of the complaint being an abuse of process of law as the complainant had earlier filed a complaint number 408 dated 1.6.2016 on the same facts, which was withdrawn by the complainant at the fag end i.e. at the stage of arguments on 7.11.2016 with liberty to file fresh one on the same cause of action, but the complainant has changed the facts in the present complaint, as in the earlier complaint the complainant did not allege the time of barring the outgoing service, whereas in the present case, the  period of 18.5.2016 to 28.5.2016 has been mentioned and in the earlier complaint the complainant prayed for restoration/resume the services of Idea post paid mobile connection in question, whereas in the present case, the complainant has  prayed for compensation and litigation charges. As such, the OP number 1 has prayed for acceptance of the application and dismissal of the complaint on the grounds mentioned therein.

2.             In reply to the application, the complainant has stated that the complainant is trying to mislead the Forum and it is stated that in both the complaints there is no change of cause of action rather present application filed by the applicant is with malafide intention just to delay the proceedings.  It is stated further that the complainant also previously mentioned in the complaint that the outgoing service of the complaint was barred by the applicant on 18.5.2016, however, the service of the complainant were restored on 28.5.2016. It is stated that the outgoing facility was wrongly barred by the OP without any reason due to the non payment of the bill of 97818-52300 which is not in the name of the complainant.  Lastly, the complainant has prayed that the application be dismissed with special costs.

3.             We have perused the application and reply thereto and heard the arguments of the learned counsel for the parties. In our opinion, the application merits acceptance for these reasons.

4.             It is clearly mentioned in the written reply of the complaint filed by  the Ops that the connection of the complainant was disconnected due to non payment of the mobile connection bearing number 9781852300, which is running in the name of the father of the complainant i.e. Abdul Majeed and at the same address of the complainant.  It is also mentioned in the written reply that earlier the complainant refused to pay the bill amount of Rs.1958/- on 17.5.2016, but later on he cleared the dues on 28.5.2016 and as such, the service was restored immediately on 28.5.2016 by OP number 1.   Now, the question remains that the complainant had filed the earlier complaint for restoration of the mobile connection number 9781852300 and in the present complaint, he seeks compensation and litigation expenses, meaning thereby the relief part has totally been changed as the mobile connection in question has already been restored on 28.5.2016 after making the payment of the dues of the mobile connection in question.  In the circumstances, we feel that the complainant could file the present complaint on the same cause of action, whereas in the present case, there is nothing like that as the mobile connection has already been restored after paying the charges to OP number 1.  As such, we are of the considered opinion, that the complainant has filed the present complaint by concealing the material facts and by improving/changing the facts of the earlier complaint.  We further find that the application deserves acceptance and the main complaint deserves dismissal being filed in violation of the order dated 7.11.2016, which reads as “Learned counsel for the complainant has made a statement in view of which the complaint is dismissed as withdrawn with liberty to the complainant to file fresh one on the same cause of action.”

5.             In view of our above discussion, we allow the application dated 02.03.2017 filed by OP number 1 and dismiss the main complaint being filed in violation of the order dated 7.11.2016.  However, the parties are left to bear their own costs. A copy of this order be issued to the parties free of charge. File be consigned to records.

                        Member      Member                  President