Per Mr.Justice S.B.Mhase, Hon’ble President

Mr.S.B.Prabhawalkar-Advocate files vakalatnama on behalf of respondent nos.1&2.  Respondent no.3 though served absent and acknowledgement of service has been produced on record by the appellant.

Heard Mr.Umesh Mangave –Advocate for the appellants and   Mr.S.B. Prabhawalkar-Advocate for respondent nos.1&2.  This appeal takes an exception to an order passed by the District Consumer Disputes Redressal Forum, Sangli in consumer complaint no.1134/2007 decided on 31/3/2009.  By this order District Consumer Disputes Redressal Forum has dismissed the consumer complaint.  Complaint has been dismissed on the ground of limitation. It has been further noted by the District Consumer Disputes Redressal Forum that along with the complaint there was no delay condonation application also.  Said order has been challenged by filing present appeal.

Admitted facts are like this.  Appellants are original complainants while respondents are original opponents. Opponent nos.1&2 are the travel agents and opponent no.3 is an agent of opponent nos.1&2.  They had planned a tour to Mauritius  & Dubai in 2004.  Said tour was planned in between 11/11/2004 & 21/11/2004.  For the said tour necessary amounts as demanded by the opponents were paid by the complainants.  Grievance of the complainants is that during the said tour the certain services which were agreed to be given were not given and, therefore, there was a deficiency in service and for these deficiencies, claiming compensation complaint was filed.  We need not go at this stage what are the deficiencies.  What is important to be noted that those deficiencies have taken place in between period 11/11/2004 & 21/11/2004.  Therefore, cause of action for filing the complaint by latest we can say has taken place on 21/11/2004 that is the last date of the travel of the said tour.

Under these circumstances, complainant has filed a first complaint bearing no.450/2006 and that complaint was within limitation. However, said complaint was dismissed for non prosecution on 04/11/2007.  After dismissal of the said complaint for non prosecution and/or default, restoration application was not filed before the District Consumer Disputes Redressal Forum.  Equally, no appeal was preferred before the State Commission as against the said order and, thus, the said order has attained finality. But probably raising a plea that the dismissed for default cannot be said to be disposal on merits and, therefore, on 19/12/2007 present complainant filed a consumer complaint no.1134/2007 that is complaint from which present appeal has arisen. Said complaint was filed on 19/12/2007.  Question arose therefore whether second complaint filed by the complainant is within limitation.

Admittedly, last point on which cause of action can be said to be arisen is 21/11/2004 and if we calculate the period from the said date, last date on which complaint should have been filed is 21/11/2006.  Present complaint has been filed on 19/12/2007 and, therefore, admittedly beyond the period of limitation approximately by 13 months.  Along with this complaint delay condonation application making out sufficient ground for condonation of delay should have been filed by the complainant.  However, complainant has not filed such application.

Now, Ld.counsel for the appellant tried to submit that this first complaint was not dismissed on merits, therefore appellant was entitled to file second complaint. Therefore, he submits that this complaint should have been entertained.  No doubt since first complaint was disposed of not on merits, second complaint should have been maintained. However, second complaint should have been within limitation.  Under these circumstances, one more option was available to the complainant namely to file delay condonation application and the same was not filed.  Under these circumstances, we find that District Consumer Disputes Redressal Forum has rightly dismissed the complaint for not filing within limitation and, therefore no interference is called for at the hands of State Commission.  Hence the order:-

                                      ORDER

 Appeal stands dismissed.

Copies of the order be furnished to the parties.