1. Aggrieved by the denial of allocation of the Science stream in Class 11thof the appellant which is the Presentation Convent Senior Secondary
School, the respondent herein was compelled to pursue her further education as a private candidate. It is the case of the respondent herein that
thereby she was not only compelled to undergo her remaining school education as a private candidate but also forced to change from Central Board of
School Education to Jammu and Kashmir State Board of School Education which was materially different and worked difficulty upon her.
2. The respondent has also contended that the denial of the Medical stream and compulsion to take the commerce stream by the appellant was
extremely unfair inasmuch as students less meritorious or having the same merit position as her, were being granted admission to the Science stream
by the appellant school. The primary grievance of the respondent has been that beyond a result of all these actions, she has been compelled to forgo
her ambition of pursuing career in medical profession. We note that learned counsel for the appellant strenuously contests the correctness of the
above submissions.
3. We have noted the above factual contentions of the respondent and the submissions of the respondent before the various forums as well as before
us. However, we are not expressing any opinion on the merits thereof.Â
4. As a result of the grievance afore noted, it appears that the cause of action for invoking appropriate remedies in accordance with law, as claimed
by the respondent arose in her favour on 03.04.2014.Â
5. After addressing the legal notice dated 11.04.2014, the respondent filed a civil suit on 28.04.2014 before the Civil Courts at Jammu seeking, inter
alia, a mandatory injunction and a direction to the appellant school to grant admission to her in the medical stream in class XI.
6. We are also informed that around the same time, the appellant also invoked the remedy under the Jammu and Kashmir Consumer Protection Act,
1987 („Consumer Act, 1987‟ hereafter) before the Divisional Consumer Forum Jammu seeking a claim of damages for the afore stated grievances
against the appellant School.
7. So far as the Civil proceedings are concerned, by an order dated 02.07.2014, interim relief was denied to the respondent. The respondent assailed
the denial thereof, by way of CIMA No. 387/2014 before this Court. By an order dated 20.05.2016 of the learned Single Judge, this appeal was
disposed of as having been rendered infructuous by efflux of time in view of the subsequent fact that the respondent had appeared in the class XII
examination as a private candidate securing 85% in the medical stream. In this back ground, the learned Single Judge of this Court directed that the
case of the respondent would be decided on its own merits in the main case filed by the respondent.Â
8. On 29thJuly 2016, it appears that the respondent filed an application seeking leave to withdraw the civil suit with liberty to invoke the appropriate
remedy under law.Â
9. It has been informed by Mr. Parveen Kapahi, learned counsel for the respondent that this application was necessary, inasmuch as, the prayer in the
suit itself was rendered infructuous for the reason that the respondent had appeared in 12th class examination as a private candidate, and therefore
there was no reason for pressing the relief for admission to class 10th which was the suit prayer.
10. The application of the respondent was granted by an order dated 29th July 2016 passed by the Principal District Judge, Jammu permitted to
withdraw the suit with liberty to avail any remedy available to him before any other forum.
11. Shortly, thereafter, on or about the 1st of October 2016, the respondent made an application to the Divisional Consumer Forum for withdrawal of
the proceedings with liberty to approach the State Commission under the Consumer Act, 1987 at Jammu. This application was premised on the
respondent‟s contention that with efflux of time, “facts and disputes†have undergone change and that grievances can be remedied only for
claiming higher compensation entertainable by higher fora only.
12. The appellant contested this application which came to be decided by an order dated 07.10.2016 passed by District Consumer Disputes Redressal
Forum, Jammu. It was observed that the respondent had given vivid account of change of circumstances, entitling her to claim higher compensation,
which was entertainable only by the higher fora. In this background, by an order dated 7th October 2016, the complaint was dismissed as withdrawn
with the liberty to file afresh, if the respondent was so advised and the cause also survives.
13. Armed with the aforesaid liberty, the respondent filed a complaint on the 8th of November 2016 before the State Commission.Â
14. Mr. Parveen Kapahi, learned counsel for the respondent has drawn our attention to Sub-Section (1) of Section 18-A of the Consumer Protection
Act, 1987 which prescribes the limitation of two years from the date on which the cause of action arises. Our attention has also been drawn to Sub
Section (2) thereof which enables the State Commission to entertain a complaint after the period specified as above if the complainant satisfies the
State Commission that he had sufficient cause for not filing the complaint within such period.
15. The respondent has explained that in view of the above narration of facts, especially having regard to the fact that he was pursuing a remedy in
accordance with law and that he became entitled to the higher compensation only because of the subsequent facts which have intervened during the
pendency of the complaint before the District Consumer Forum. The respondent also filed an application dated 8th November 2016 seeking
condonation of delay of about seven months in approaching the State Commission in this background.Â
16. We are informed that it was orally required by the Commission that the respondent file an application giving better particulars. For this reason, the
respondent claims to have filed a second application dated 29th August 2017 which was merely a more elaborate application than the previous one
filed before the State Commission explaining the reasons in which the delay of seven months had occasioned.Â
17. This application was opposed by the appellant. The application came to be heard and decided by an order dated 27th April 2018, whereby the
State Consumer Disputes Redressal Commission, Jammu was pleased to condone of delay of seven months in filing the complaint before the said
Commission. Aggrieved thereby, the order dated 27th April 2018 has been assailed by way of the present appeal.Â
18. We have heard learned counsel for the appellant Mr. D.R.Khajuria and Mr. Parveen Kapahi, learned counsel for the respondent at great length
who have carefully taken us through the available record. It cannot be disputed that the respondent had been vigilantly pursuing her remedy from
11.04.2014 when the legal notice which came to be issued at the earliest. The respondent, thereafter, sought urgent relief by way of filing the Civil suit
seeking a mandatory injunction to the respondent to allocate her the course of her choice in the school which she had attended from the inception. At
the same time, aggrieved by the denial of the medical stream, to which she sought admission, the respondent also invoked the remedy for damages by
way of complaint before the Divisional Consumer Forum, Jammu which she pursued till she was permitted to withdraw the same by the order dated
7th October 2016 by the District Consumer Forum, Jammu.
19. We find substance in the submission made by learned counsel for the respondent that the order dated 07.10.2016 not only permitted the respondent
to withdraw her claim before the District Forum, but also granted her liberty to approach the State Commission. It is to be noted that this order was
not assailed by the appellant and has attained finality. The appellant, therefore, had no objection to the filing of the complaint before the State
Commission.Â
20. So far as the impugned order dated 27.04.2018 is concerned, the same has noted that the facts which are subsequent to the filing of the original
complaint before the District Forum in April, 2014 as well as the subsequent intervening facts including the fact that the respondent was compelled to
undertake her chosen course through a private institution. The State Commission noted that there was no delay in filing the complaint.Â
21. The J&K State Consumer Disputes Redressal Commission, Jammu while granting order dated 27.04.2018 also notes that the pending case was
permitted to be withdrawn with liberty to approach the State Commission to seek higher damages. The State Commission has noticed that given the
liberty granted by the District Consumer Forum, it could not be held that the complaint was barred by limitation.
22. There is another reason as to why the contention of the appellant is not sustainable. In any case, so far as the conduct of the respondent and the
delay in filing the claim before the State Commission is concerned, we find that the respondent has been diligent in pursuing the available remedies
right from 2014. Furthermore, it has become necessary to invoke the jurisdiction of the State Commission only on account of the facts which are
subsequent to the filing of the original complaint before the Divisional Consumer Forum. These include the compulsion to undertake the class 12th
examination through a private institution, that too under the Jammu and Kashmir State Board of School Education (as against the Central Board of
School Education which course the appellant had been undertaking at the appellant school). The cause of action for filing a complaint in respect of
these subsequent acts has obviously arisen after the case was filed and pending before the Divisional Consumer Forum.Â
23. Every fact which has occurred after the applicant was denied the allocation of the course of her choice, if done illegal or unfairly as claimed by the
respondent, would give rise to a fresh cause of action for filing the complaint.
24. These are all facts which have come into existence within the period of two years after April, 2014 when the complaint was actually filed before
the State Commission and November, 2016 when it was withdrawn and case filed before the State Commission. For these reasons as well, it cannot
be contended or held that the complaint before the State Commission as filed on or before 08.11.2016 in respect of such cause of action is barred by
the statutory period of limitation as prescribed under Section 18-A of the Jammu and Kashmir Consumer Protection Act, 1987.Â
25. For all these reasons, we find no merit in this appeal, which is dismissed with costs of Rs. 20,000/- to be paid to the respondent within a period of
two weeks from today.
26. So far as the contest on the merits of the cases of the parties is concerned, the State Commission would give an opportunity to them to place their
objections/version on the merits of the case of the respondent on record, if the same has not already been placed. The Commission would proceed in
the matter in accordance with law.
