SHANTI AUTO P LIMITED Vs. PRAVEEN BEN GEORGE

JUDGEMENT

(1.) The revision is directed against the order dated 19.5.2000 in O. P.433/1999 on the file of the Consumer Disputes Redressal Forum, Thiruvananthapuram. Opposite parties in the said O. P. are the revision petitioners. Respondents filed the said O. P. alleging manufacturing defect and for redressal for the same. Revision petitioners/opposite parties raised a preliminary point maintaining that the complaint is not maintainable. The case was that this complaint was filed without complying with the order on O. P.140/1999 filed by the respondent and hence the present complaint, O. P.433/1999 is not maintainable. The precise point raised by them was that the application by the complainant for withdrawal of the complaint was allowed on condition to pay Rs.300/- as costs; and since O. P.433/1999 was filed without payment of the said costs, the complaint is not maintainable. By the impugned order the District Forum over-ruled the said objection and held the complaint is maintainable. It is against the said order that this revision is filed.

(2.) It is urged by the learned Counsel that the view taken by the District Forum that the complaint is maintainable cannot be supported as on the date of filing the complaint the condition in the order dated 10.9.1999 was not satisfied; the complaint was incompetent. He made reliance on the decision of the Bombay High Court , Wasudeo Bakaram Kurve V/s. Ramdayal Puna Bisne, 1971 AIR(Bom) 220. On the other hand the learned Counsel for the respondent/complainant urged that it is not open to the revision petitioner now to contend that the complaint is not maintainable as he has already received the costs directed to be paid, though such payment was after the institution of the complaint. He maintained that even the revision petitioners themselves had required the withdrawal of the previous complaint.

(3.) The two questions that would arise for consideration in the context of the rival arguments are, what is the effect of the order dated 10.9.1999 in O. P.140/1999; and the other point is, whether by acceptance of the costs at a later stage would constitute waiver. The order dated 10.9.1999 is at page 11 of the paper book, the operative portion reads : "withdrawal allowed on cost Rs.300/-". Admittedly the respondent wanted to withdraw that complaint invoking the jurisdiction under Order 23 Rule (1) of C. P. C. It was on the aforesaid application, the District Forum passed the order. The order does not fix a date for payment of the cost. The said part of the order is open to an interpretation that withdrawal was allowed but the petitioner has to pay Rs.300/- as cost. If that is so, on failure to pay cost it would be open for the opposite party/appellant to execute the said part of the order and realise the aforesaid cost. Even interpreting the said part to mean, the withdrawal is allowed on condition that the petitioner pays Rs.300/- as cost, the question for consideration is whether the second complaint could be instituted without payment of the said cost. In page 3 of the revision petition the petitioner states that pending O. P.433/1999 the respondent's Counsel approached the second appellant and wanted the latter to accept cost of Rs.300/- and that the amount was duly accepted by the second appellant. Though the cost was not paid before the institution of O. P.433/1999, the same was accepted pending the said O. P. Question is whether after accepting the cost it is open to the revision petitioners to maintain that the complaint is not maintainable as the cost was not paid before the institution of the said complaint.