1. The petitioner/complainant filed the above caption petition against the respondent that her complaint was dismissed due to non prosecution on 22-02-10. She further stated that her husband appeared in the Court on 08-02 10 and case was adjourned for 15-02-10 but due to his hard of hearing he understood as 15-03-10 instead of 15-02-10 and when she came to Court on 15 03-10 then she came to know that her complaint was dismissed on 22-02-10, therefore, in the interest of justice her petition may be accepted and her original complaint may be restored.
2. Respondent submitted written reply wherein raised preliminary objection regarding maintainability and malafide. On facts it was stated that previously the complaint of present petitioner was dismissed on 18-08-09 and thereafter on an application of petitioner her application was restored. He further stated that complainant had no evidence in her support and to avoid the consequences due to non production of evidence, she intentionally avoided to appear in the Court and the complaint was again dismissed. He has also raised the objection that this Court lacks the jurisdiction to entertain the petition under section 33&34 of Punjab Consumer Protection Act, 2005 and prayed for the dismissal of the petition.
3. I have heard the learned counsel for the parties and gone through the record.
4. The learned counsel for the petitioner has contended that due to misunderstanding of the date the petitioner could not appear in the Court on 22 02-10 and her husband who was hard of hearing appeared in the Court on 08-02 10 and noted 15-03-10 instead of 15-02-10 and when on 15-03-10 the complainant came to Court she came to know that her complaint was dismissed on 22-02-10 due to non prosecution. Her absence was unintentional he further argued that according to the dictum of Hon'ble Supreme Court of Pakistan the lis should be decided on merits rather to decide on technicalities and prayed for acceptance of the petition.
5. Conversely the learned counsel for the respondent has contended that the petitioner intentionally avoided to appear in the Court and the fact and ground taken in the petition about the appearance of her husband is rebutted by judicial record. According to order sheet of the Court the petitioner herself present on 15-02-10 and case was adjourned for 22-02-10, therefore, in these circumstances, there is no legal justification to accept the petition because the petitioner has failed to put forward any reasonable and plausible cause for acceptance of her petition. They have further argued that present petition is not maintainable before this Court as the order is appealable according to section 33 of Punjab Consumer Protection Act, 2005 "any person aggrieved by any final order of the Consumer Court may file an appeal in the Lahore High Court within 30 days of such order and section 34 of Act ibid lays down that if no appeal has been preferred against such order under the provision of this Act, Shall become final and prayed for dismissal of petition.
6. Having given due consideration to the facts of case and going through the record of Court it transpires that previously the complaint of the petitioner was dismissed due to non prosecution and she took same ground that she could not appear in the Court due to misunderstanding of date and now again in this petition the same ground was taken but this ground is rebutted buy the order of Court where the presence of present petitioner was marked on 15 02-10 and the case was adjourned due to strike of lawyers on 22-02-10 which clearly means that petitioner concocted the story of non appearance in the Court. The conduct of the petitioner shows that she is not interested in the persecution of case and she only wants to linger on the mater by adopting various methods to keep pressure on the respondents. No doubt that according to dictums of Hon'ble Supreme Court of Pakistan lis should be decided on merits but this is not inflexible rule. Each case has its own facts having its own merits. This is second petition of restoration of complaint which is indicative of the fact that the petitioner is playing game of hide and seek with Court which is not warranted by the law. The discretion is to be exercised in favour of genuine litigant having reasonable and plausible cause of non appearance in the Court. The Courts can not be placed on the mercy of litigant such like petitioner.
7. In view of the what have been discussed above the petition having no stance is hereby dismissed.