COMPLAINT ABOUT FAULTY SERVICE
1. The case was previously at the stage of the payment of costs which is to be paid on behalf of Mohammad Adeel defendant No.2 but it is being stated by learned counsel for the said defendant who is also the counsel of contesting defendant No.1 that since he has no contact with defendant No.2 relating to the present case as such he would not represent him further in the proceedings of the present case till he makes the contact with him, therefore nobody is representing defendant No.2 due to non-representation by his learned counsel.
2. It is therefore observed that since no body is present on behalf of defendant No.2 as such he is being proceeded against ex-parte with reference to Rule 14 of PCP Rules 2009. It is observed with reference to Rule 14 of PCP Rules 2009 that the ex-parte defendant would be entitled to the representation during further proceedings of the present case even without filing any application on any adjourned date during pendency of the file subject to the payment of Rs.100/- per day for the delay caused due to non appearance but if the complaint would be decided against them meanwhile then he would have to file the application for cancellation of ex-parte order to be processed after issuance of notice to the claimant in accordance with law.
3. The arguments on the preliminary / legal objections contained in the written statement of defendant No.1 have been heard as such I proceed to discuss and dispose off the said objections however I am of the view that no other objection or plea of the parties can be considered in the present case at this stage except the objection against the jurisdiction of the consumer court because the said objection is to be treated as the main objection therefore I proceed to determine the said objection in the first instance by discussion in the next paragraphs.
4. Briefly stated the version of the claimant is to the effect that defendants No.1 & 2 alongwith another person named in the complaint cajoled him and defendant No.1 coerced him to enter into the contract about the purchase of the disputed plot situated in Fatima Jinnah Town located at the site opposite Government High School, Kot Haibat, Tounsa Road, D.G.Khan by promise of providing detailed facilities in the disputed town, on the basis of such terms and conditions which were not acceptable to the claimant; that considerable amount mentioned in the complaint has been paid through installments to defendant No.1 by the claimant; that the claimant has been protesting against arbitrary radical alterations to the whole layout plan of the colony at the time of the payment of each installment; that defendant No.1 has orally vowed to balance the effect of the financial loss to the claimant; that defendant No.1 has been putting off penning the matter; that the scheme is a dismal failure; that no progress has been made for provision of amenities etc. inspite of passing of several years; that the defendants not only deprived the claimant from the utility of huge amount for such a long period but also invested the same in other schemes; that in addition to the recovery of the expenses of the construction raised by the claimant, the court may grant 20 Lakh rupees as damages for causing mental anguish and the fees of the three counsels which amounts to 90,000/- rupees @ Rs.30,000/- per counsel and other expenses incurred in the legal proceedings; that the defendants have received the legal notices but not responded; that the jurisdiction to adjudicate and pass an order resides with the consumer court.
5. The defendant No.1 has filed his contesting written statement containing preliminary legal objections while defendant No.2 has relied upon the written statement of the said defendant by filing his short written statement, however since defendant No.2 is being proceeded against exparte as such his objections are not to be considered at this stage while the objections raised by contesting defendant No.1 are to the effect that the complaint is incorrect, against the facts, against the law, liable to be dismissed; that the claimant has not come to the court with clean hands; that the claimant has concealed the facts; that defendant No.1 is not manufacturing any product to constitute the relationship of the consumer and manufacturer between the parties; that the dispute relates to the contract which can be adjudicated only by the civil court; that the agreement has already been cancelled due to default of the claimant; that the claimant has no cause of action; that the claimant had signed the agreement after accepting the conditions; that the claimant is also bound by the terms of the agreement; that the providing of suigas, sewerage, dispensary was not mentioned or agreed to be provided in the agreement; that some amount mentioned in the written statement is still due; that last payment was made by the claimant on the date mentioned in the written statement; that the ownership of the plot has not been transferred to the claimant; that one of the counsel of the claimant has also made the agreement with defendant No.1 for purchase of a plot; that the cases have been filed by the said counsel by collecting the number of persons due to cancelling of his own plot on shortage of installments; that the complaint has not been verified on oath; that the complaint should be dismissed with grant of damages and costs to the defendant.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
15. 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.
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. 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.
17. An overview of the law shows that: the return of the consideration or a part thereof and the costs is provided in the law where the consumer has suffered the loss of utility or lack of benefit only while the manufacturer or service provider is also liable for the damages where the consumer has suffered any damage from the defective product u/s 10 & faulty service u/s 15; that the manufacturer or service provider is liable to a consumer for damages proximately caused by the defective product u/s 4 & faulty service u/s 13; that the liability of the manufacturer or service provider is not limited or excluded by the terms of any contract or notice about the defective product u/s 12 & faulty service u/s 17; that the disclosure of the details has been made essential about the product and service where the nature of the same is such that it is material to the decision of the consumer to enter into the contract with reference to the product u/s 11 & service u/s 16; that the standard for the provision of services is determined as such which a consumer could reasonably expect to obtain in Pakistan at the time of the provision of the service u/s 14; that the court is authorized to direct the defendant to pay reasonable compensation for any loss suffered due to negligence of the defendant u/s 31(e); that to award damages where appropriate u/s 31(f); that to award costs including lawyer's fees incurred on the legal proceedings u/s 31(g) of PCP Act, 2005.
18. It is pertinent to note that the grant of damages is curtailed even under the Contract Act, 1872 being the law of the land in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
19. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility.
20. In the present case, the version of the claimant is to the effect that the alleged agreement has not yet culminated in the contract because the ownership of the disputed plot is yet to be transferred on payment of further installments and that the original written / printed agreement about the purchase of the disputed plot has been replaced by another oral agreement about providing the plot bearing another number instead of the original plot.
21. It means that the capacity of the defendants as service providers being the developers of the housing colony has been merged in the new amended agreement about providing the plot of another number instead of the original plot as such they have ceased to be the service providers to the extent of the claimant due to the new agreement and they would be transformed in the capacity of the service provider after the transfer of the new plot in favour of the claimant.
22. It is therefore observed that the claim about providing the facilities is pre-mature unless the claimant seeks the specific performance of the modified oral agreement through the civil court.
The matter has become ordinary civil dispute between the parties of equal level without any relationship of the consumer with service-provider. The specific performance of the agreement to sell is the exclusive domain of learned civil court. The terms and conditions of the basic agreement as amended by the new agreement are to be implemented through the learned civil court.
23. 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 necessary for the claimant to invoke the jurisdiction of the learned Civil Court by the suit for specific performance.
24. It is proper to be pointed out in the interest of justice that first of all the claimant should apply to the defendants for the restoration of allotment of the disputed plot or alternate plot by offering to pay the remaining installments if any and to go to civil court for the redress of his grievance after refusal of the defendants to co-operate.
25. As far as the allegation of bait advertisement is concerned, I find that the same can also be raised before the learned civil court in the suit for specific performance being mixed question of the law and facts.
26. It is however observed that the complaint is not liable to be rejected under Order VII Rule 11 CPC and it is more proper to be returned for institution before civil court of ordinary jurisdiction.
27. As far as the stress of the defendants for grant of damages and special costs is concerned, it is observed that the defendants are not entitled to the same at this stage because the complaint is not being disposed of on facts but being returned for proper representation.
28. For what has been discussed in preceding paragraphs, the objection against the jurisdiction of this court is upheld and the complaint is disposed of to the extent of the return of the complaint while the remaining objections contained in the written statement are kept reserved for determination by learned Civil Court. The complaint is accordingly disposed off by way of return for institution of regular civil suit before the learned Civil Court in accordance with law.
29. The parties are left to bear their own costs.
30. 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.
31. The file of this complaint is to be consigned to the record room of this court 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.