S M PILLAI Vs. KAMALAARAK CONSULTANTS

JUDGEMENT

(1.) Petition by the complainant seeking permission to withdraw the complaint without prejudice to his right to file a fresh complaint. The opposite party has filed objection. It is submitted by the learned Counsel for the complainant that the complaint since was filed by the party himself, he could not draft the same as is required, therefore, he may be permitted to withdraw the complaint without prejudice to his right to file fresh complaint. He relied on Order 23, Rule 1, Sub- rule (2) and urged relying on the decision of the National Commission in Branch Manager, LIC of India and Anr. V/s. Smt. Zareena Sulaiman, 1995 1 CPJ 4that the sound principles of the law and procedure embodied in the C. P. C. can be followed by the Forums and urged that it is a case where in the interest of justice the complainant has to be given permission to withdraw the complaint with liberty to file a fresh complaint. On the other hand the learned Counsel for the counter petitioner/opposite party maintained that since the ground stated does not fall within the Order 23, Rule I, Sub-rule (3), the permission cannot be granted. It is urged by the learned Counsel that merely because the party himself filed a complaint that cannot be treated as a ground that the complaint suffers from any formal defect within the meaning of Order 23, Rule 1, Sub-rule (3) consequently according to the learned Counsel the complainant cannot be granted permission to withdraw the complaint with liberty to file fresh complaint. It was also maintained that petition itself is not maintainable as Order 23 is not made applicable to the proceedings under the Consumer Protection Act, 1986. In Order 23, Rule 1, Sub-rule (3) there are two clauses under which permission to withdraw suit with liberty to file fresh suit can be granted, one is, when it is discovered that the suit must fail by reason of some formal defect; the same Clause (a) thereof any Sub-clause (b) enjoins that such permission can be granted where there are sufficient grounds for allowing the plaintiff to institute a fresh suit. Whether there are sufficient grounds for giving such permission would depend upon the facts of each case. The ultimate purpose of giving such opportunity to a plaintiff to withdraw the suit to file a fresh suit should be in the interest of justice. In other words the object is to ensure a fair trial, when the said object is kept in view the cause alleged by the petitioner in a given circumstance has to be interpreted with due regard to the attending circumstance also. It is a fact that the complaint is filed by the complainant himself and the reason averred is that as he himself drafted the complaint he could not properly state his case. It is urged by the learned Counsel for the counter-petitioner that the complainant being a Neuro Spine Surgeon the cause mentioned cannot when he says that he could not state the whole case. We consider that once the ultimate object is to ensure fair trial and to accord justice, interpretation of such a provision has to be to advance the object of the provision; it cannot be technical. This is particularly so as Order 23, Rule 1, Sub-rule (3) itself does not justify such a narrow scope as is now projected; and when such question arises under the Consumer Protection Act the object of the said Act also has to be kept in view.

(2.) Then as regards the applicability of Order 23, Rule I, C. P. C. to a proceeding under the Act, so long as there is no prohibition in applying the principle under Order 23, Rule 1, Sub-rule (3), C. P. C. then could be no bar. In the decision of the Supreme Court in New India Assurance Co. Ltd. V/s. Srinivasan, 2000 1 CPJ 19 , where the Supreme Court held, the bar of Order 9, Rule 9, C. P. C. cannot apply to a fresh complaint by a complainant whose complaint was dismissed for default as Order 9, Rule 9, C. P. C. is not made applicable to proceedings under the Act, relies on the principle in the dissenting judgment of Mahmood, J. in Narsingh Das V/s. Mangal Dubey,1883 ILR(All) 163. Wherein the learned Judge held : "the Courts are not to act upon principle that every procedure is to be taken as prohibited unless it is expressly provided by the Code, but on the converse principle that every procedure to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the Forum in which it has been brought is prohibited by rules of procedure applicable to Court of justice in India". The Supreme Court holds that the second complaint filed explaining why the earlier complaint could not be pursued is maintainable. In the context, if a complainant whose complaint has been dismissed for default can maintain a second complaint as above, it does not stand to reason as to why he could not on sufficient grounds withdraw, a complaint with liberty to file fresh complaint, in the circumstance, he could do so even assuming Order 23, Rule 1 (3), CPC is not made applicable to the proceedings. We are of the view, that petition has to be allowed. Petition allowed, complainant is allowed to withdraw the complaint with liberty to file fresh complaint.