COMPLAINT ABOUT MISCONDUCT OF PROPERTY DEALER
1. The file of the present case was fixed on 11-10-2011 but I was on long leave on the said date and this date was fixed by the Reader of this court by entry on the daily cause list.
2. The case was previously at the stage of the filing of the copy of the order of DOR by the claimant which has not been filed however learned counsel for the parties are prepared to advance arguments on the legal objections contained in the ancillary application filed on behalf of the defendant.
3. The arguments on the ancillary application have been heard today as such I proceed to discuss and dispose off the said application by discussion in the following paragraphs.
4. The version of the claimant in the main complaint briefly stated is to the effect that the defendant should pay Ten Crore Rupees as damages in addition to the compensation and costs and counsel fee to the claimant due to his omission to transfer the promised plot of land and that the defendant should be directed to transfer the plot in the name of the claimant and any other relief which can be awarded in the interest of justice may also be awarded by the court to the claimant.
5. The defendant has opted to file the application under discussion instead of filing regular written statement with the request for dismissal of the complaint on the grounds that the complaint is baseless and based on malafide; that the complaint is not maintainable; that the case is based upon alleged contract between the parties; that the case is of civil nature; that the complaint is badly time barred; that the compensation has been claimed about defamation which can only be determined by the civil court; that the complaint should be dismissed with grant of damages and costs to the defendant.
6. The claimant has contested said application by filing his written reply by which he has raised certain preliminary objections against the maintainability of the ancillary application and asserted that the claimant comes within the definition of the consumer; that the complaint is maintainable in this court; that application of the defendant is not maintainable; that the application of the defendant should be dismissed; that the complaint should be decided on the basis of facts.
7. I am of the view that no other objection or plea of the parties can be considered in the present case at this stage because the objection against the jurisdiction of this court is to be treated as the main objection therefore I proceed to determine the said objection in the next paragraphs.
8. I am of the view that since the PROCEDURE ON RECEIPT OF COMPLAINT is provided in S.30 of PCP Act, 2005; as such if the intention of the legislature was to implement all the provisions provided in the Code of Civil Procedure, 1908, then it should not have been specified in S.30 (3) that the consumer court shall have the same powers as are vested in civil court while trying a suit, under the Code of Civil Procedure, 1908 (Act XX of 1908), in respect of the matters narrated in Clauses (a) to (e) of the PCP Act, 2005.
9. The matters incorporated in Clauses (a) to (e) of Sub section (3) of S.30 of PCP Act, 2005 about which the powers given by the Code of Civil Procedure are to be exercised by the consumer court relate to: the summoning and enforcing attendance of any defendant or witness and examining him on oath; the discovery and production of any document or other material object which may be produced as evidence; the receiving of evidence on affidavits; issuing of any commission for the examination of any witness; and any other matter which may be prescribed.
10. Obvious meanings of last portion of quoted law in clause (e) relating to "any other matter which may be prescribed" is to the effect that the list contained in clauses (a) to (d) is not exhaustive and any other matter may be prescribed in any provision of the same law on which the powers under the Code can be exercised by the consumer court. My humble interpretation of the said clause is to the effect that other principles and powers contained in the said Code can also be used beneficially under the said clause by the consumer court to resolve the matter under the established procedure instead of remaining in the darkness and to avoid the failure of justice due to the absence of prescribed procedure in the consumer law and consumer rules but the technicalities should not be allowed to hinder the path of justice in the said process.
11. A glance on the SECTIONS of CPC shows that the principles of law are laid down regarding SUMMONS TO DEFENDANTS in S.27; SERVICE OF SUMMONS WHERE DEFENDANT RESIDES IN ANOTHER PROVINCE in S.28; SERVICE OF FOREIGN SUMMONS in S.29; POWER TO ORDER DISCOVERY AND THE LIKE in S.30; SUMMONS TO WITNESSES in S.31; PENALTY TO DEFAULT in S.32; POWER OF COURT TO ISSUE COMMISSIONS in S.75; COMMISSION TO ANOTHER COURT in S.76; LETTER OF REQUEST in S.77; COMMISSIONS ISSUED BY FOREIGN COURTS in S.78; SUITS BY OR AGAINST THE GOVERNMENT in S.79; EXEMPTION FROM ARREST AND PERSONAL APPEARANCE in S.81; WHEN ALIENS MAY SUE in S.83; SUPPLEMENTAL PROCEEDINGS in S.94; REVIEW in S.114; UNAUTHORISED PERSONS NOT TO ADDRESS COURT in S.119; EXEMPTION OF CERTAIN WOMEN FROM PERSONAL APPEARANCE in S.132; EXEMPTION OF OTHER PERSONS in S.133; ARREST OTHER THAN IN EXECUTION OF DECREE in S.134; EXEMPTION FROM ARREST UNDER CIVIL PROCESS in S.135; EXEMPTION OF MEMBERS OF LEGISLATIVE BODIES FROM ARREST AND DETENTION UNDER CIVIL PROCESS in S.135-A; PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY TO BE ATTACHED IS OUTSIDE DISTRICT in S.136; POWER OF HIGH COURT TO REQUIRE EVIDENCE TO BE RECORDED IN ENGLISH in S.138; OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED in S.139; MISCELLANEOUS PROCEEDINGS in S.141; ORDER AND NOTICES TO BE IN WRITING in S.142; POSTAGE in S.143; ENFORCEMENT OF LIABILITY OF SURETY in S.145; SAVING OF INHERENT POWERS OF COURT in S.151.
12. A glance on the ORDERS of CPC shows that some are completely applicable while some can be applied only to the extent of certain RULES. The complete ORDERS which are applicable are enumerated as complete O.V(5) about ISSUE AND SERVICE OF SUMMONS; complete O.IX(9) about APPEARANCE OF PARTIES AND CONSEQUENCE OF NON APPEARANCE; complete O.X(10) about EXAMINATION OF PARTIES BY THE COURT; complete O.XI(11) about DISCOVERY AND INSPECTION; complete O.XII(12) about ADMISSIONS; complete O.XIII(13) about PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS; complete O.XVI(16) about SUMMONING AND ATTENDANCE OF WITNESSES; complete O.XVII(17) about ADJOURNMENT; complete O.XVIII(18) about HEARING OF THE SUIT AND EXAMINAION OF WITNESSES; complete O.XIX(19) about AFFIDAVITS; complete O.XXVI(26) about COMMISSIONS; complete O.O.XXVII(27) about SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY; complete O.XXVIII(28) about SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN; complete O.XXIX(29) about SUITS BY OR AGAINST CORPORATIONS; complete O.XXX(30) about SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN: complete O.XXXII(32) about SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND; complete O.XXXVIII(38) about ARREST AND ATTACHMENT BEFORE JUDGMENT; complete O.XLVIII(38) about MISCELLANEOUS.
13. Scattered provisions of CPC applicable to the consumer court are to be found in O.VI(6),R.2 about PLEADINGS TO STATE MATERIAL FACTS AND NOT EVIDENCE; O.VII(7),R.14 about PRODUCTION OF DOCUMENT ON WHICH PLAINTIFF SUES; R.15 about STATEMENT IN CASE OF DOCUMENTS NOT IN PLAINTIFF'S POSSESSION OR POWER; R.17 about PRODUCTION OF SHOP BOOK; R.18 about INADMISSIBILITY OF DOCUMENT NOT PRODUCED WHEN PLAINT FILED; R.22 about PROCEDURE WHEN PARTY NOT FOUND AT THE PLACE OF ADDRESS; R.25 about SERVICE BY OTHER MODES; O.VIII(8),R.1 about WRITTEN STATEMENT; O.XIV(14),R.4 about COURT MAY EXAMINE WITNESSES OR DOCUMENTS BEFORE FRAMING ISSUES; O.XV(15),R.4 about FAILURE TO PRODUCE EVIDENCE.
14. Definition of CONSUMER? is provided in section 2 (c) (i) of PCP Act 2005 which is being reproduced here under for the facility of reference:- "(c) "Consumer" means a person or entity who-
(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) Hires any services for a consideration and includes any beneficiary f such services: Explanation:-For the purpose of sub-clause "Commercial purpose" does not include use by any consumer of products bought and used by him only for the purpose of his livelihood as a self- employed person.
15. Definition of SERVICES" is provided in section 2 (k) of PCP Act 2005 which is being reproduced here under for the facility of reference:- "(k) "Services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering service but does not include-
(i) The rendering of any service under a contract of personal service;
(ii) The rendering of non-professional services like astrology or palmistry; or
(iii) A service, the essence of which is to deliver judgment by a court of law or arbitrator;".
16. It is necessary to be pointed out that the rights of the consumers have been limited by providing the restrictions on the grant of damages/compensation by Ss.10 & 15 while liability of the defendants is limited by Ss.4 & 13. It is therefore proper to take an overview of the relevant provisions in the said perspective.
17. It is provided u/s 4 of PCP Act 2005 relating to the "LIABILITY FOR DEFECTIVE PRODUCTS" that:- "The manufacturer of a product shall be liable to a consumer for damages proximately caused by a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer".
18. It is provided u/s 10 of PCP Act 2005 relating to the "RESTRICTION ON GRANT OF DAMAGES" that:- "Where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part there of and the costs".
19. It is provided u/s 13 of PCP Act 2005 relating to the "LIABILITY FOR FAULTY OR DEFECTIVE SERVICES" that:- "A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage".
20. It is provided u/s 15 of PCP Act 2005 relating to the "RESTRICTION ON GRANT OF DAMAGES" that:- "Where the consumer has not suffered any damages from the provision of service except lack of benefit, the service provider shall not be liable for any damages except a return of the consideration or a part there of and the costs".
21. To comprehend the concept about restrictions on grant of damages properly, it is necessary to ponder about Ss.4 & 10 jointly when the case is about defective products and Ss.13 & 15 jointly when the case is about faulty or defective services.
22. It is being pointed out that the relevant law governing the rules for the housing colonies is PUNJAB PRIVATE HOUSING SCHEMES AND LAND SUB-DIVISION RULES 2010? published in of PLD Punjab Statutes Volume LXII 2010.
23. In the present case, the version of the claimant is to the effect that the original printed agreement about the purchase of the disputed plot has been replaced by another agreement during the proceedings of DOR about providing another plot instead of the original plot. It means that the capacity of the defendant as a service provider being the developer of the housing colony has been merged in the new amended agreement about providing another plot instead of the original plot as such he has ceased to be the service provider to the extent of the claimant due to the new agreement. The matter has become ordinary civil dispute between the parties of equal level without any relationship of the consumer with service-provider. The terms and conditions of the new agreement are to be implemented through the learned Civil Court.
24. I have observed that since subsequent agreement is being alleged to have been entered into by the parties by superseding original agreement as such the jurisdiction of the Consumer Court has been ousted due to the introduction of new agreement and it is proper to invoke the jurisdiction of the learned Civil Court by the suit for specific performance of the alleged agreement.
25. It is however observed that the complaint is not liable to be rejected u/O.VII Rule 11 CPC and it is more proper to be returned for institution before civil court of ordinary jurisdiction.
26. As far as the stress of the defendant for grant of damages and special costs is concerned, it is observed that the defendant is not entitled to the same at this stage because the complaint is not being disposed of on facts but being returned for proper representation.
27. For what has been discussed in preceding paragraphs, the objection against the jurisdiction of this court is upheld and the application filed by the defendant is accepted to the extent of the return of the complaint while the remaining objections contained in the said application are kept reserved for determination by learned Civil Court and the complaint is disposed off accordingly by way of return for institution of regular civil suit before the learned Civil Court in accordance with law.
28. The parties are left to bear their own costs.
29. A copy of this order would be available for publishing on the internet to the website of Punjab Consumer Protection Council, 135-J, Model Town, Lahore for public disclosure and easy access of information to the consumers relating to the products and services in accordance with Rule 25 of PCP Rules 2009.
30. The file of this complaint is to be consigned to the record room duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.