HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 41 of the Consumer Protection Act, 2019 by the appellant against the judgment dated 15/02/2022 passed by the Learned Addl. District Consumer Disputes Redressal Commission at Rajarhat (New Town), Kolkata (in short, ‘the Addl. District Commission’) in connection with the complaint case No. CC/111/2021.

2. The complainant filed this petition of complaint under section 35 of the Consumer Protection Act, 2019 alleging deficiency of service as well as unfair trade practice against the opposite party as the opposite party did not take any steps to refund the paid amount to him till the filing of this complaint.

3. After filing of the complaint case notice was duly issued upon the opposite party but till 15.02.2022 the opposite party did not receive the notice. During pendency of the complaint case, the complainant filed an application praying for withdrawal of the complaint case.

4. In view of the application filed by the complainant, the consumer complaint case being No. CC/111/2021 was dismissed as withdrawn by the order impugned.

5. Being aggrieved by and dissatisfied with said impugned order the appellant has preferred this appeal. I have heard the Learned Advocate appearing for the appellant / complainant and also carefully perused the order dated 15.02.2022 passed by the Learned Addl. District Commission, the ground taken in the memo of appeal and the documents filed along with it. Learned Advocate appearing for the appellant has urged that the Learned Addl. District Commission below acted illegally with material irregularity at the time of passing of the judgment dated 15.02.2022 under appeal by the Learned Addl. District Commission.

6. He has further urged that the Learned Addl. District Commission ought to have allowed the complaint case after considering the evidence and other materials on record.

7. He has further urged that the Learned Addl. District Commission below did not consider the submission of the complainant and did not apply judicial mind properly at the time of passing of the impugned order. So, the impugned order is liable to be set aside.

8. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that the complainant filed the case under section 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the opposite party. Notice was duly issued upon the opposite party but the opposite party till the passing of the impugned order did not receive any notice. However, the complainant filed an application praying for withdrawal of the complaint case.

9.  I find that on the basis of the application filed by the complainant the Learned Addl. District Commission dismissed the complaint as withdrawn.

10. The appellant cannot ‘blow hot and cold in the same breath’, ‘fast and loose’ or ‘approbate and reprobate’. Where the appellant / complainant has filed an application for withdrawal of the complaint and on the basis of the said withdrawal application, the complaint case was dismissed as withdrawn by the Learned Addl. District Commission, the complainant cannot be permitted to assail the same. This rule is applied to do equity. In this case, where the complaint case was dismissed as withdrawn on the basis of the application for withdrawal of the complaint filed by the complainant, the complainant is, therefore, stopped by his act, conduct or acquiescence to continue the present case. In the facts and circumstances, nothing survives in the present appeal, since the complaint case was dismissed as withdrawn on the basis of the application filed by the complainant.  As such, the appeal is liable to be dismissed.

11. In the result, the appeal be and the same is dismissed. There will be no order as to costs.

12. The appeal is, thus, disposed of accordingly.