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Consumer forum case is dismissed in default

By Shivendra Pratap Singh

I have filed a case before the consumer forum but due to nonappearance in the hearing, my case is dismissed by the forum. Can I file another case before the consumer forum or file an appeal before the state consumer forum.

Your case is dismissed for default. According to Order 9 Rule 9(1) of the code of civil procedure when the plaintiff is absent at the time of hearing of the case and suit is dismissed in default of the plaintiff, a second suit on the same cause of action would not lie because it is barred by order 9 rule 8 of the code of civil procedure.

Above mentioned provision is not made in the consumer protection rule thus subsequent case on the same cause of action is not barred by the consumer forum rules. Whenever rules of consumer forum are silent on any point of law and further action is necessary for the disposal of the case the consumer forum is bound to take the assistance of the code of civil procedure. In this condition provision made in order 9 rule, 9 and 8 will be applicable in the proceeding before the consumer forum.

In New India Assurance Co. Ltd. Vs R. Srinivasan (2000) 3 SCC  it is held by the supreme court of India that Order 9 Rule 9(1) & Order 9 Rule 8 do not apply in the proceeding before the consumer forum because the case was not decided on the merit and it is dismissed in default on the non-appearance of the party, therefore, it would be permissible to file a second complaint on the same cause of action explaining why the earlier complaint could not be pursued and was dismissed in default.

Therefore you can file the second complaint on the same cause of action and it would be admitted by the forum if it satisfies that you had a valid reason for non-appearance in the previous case which was dismissed in default.

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