' SHUJAAT ALI KHAN, J. --- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner-company has called in question the legality of order dated 18.12.2012 passed by the learned Presiding Officer, District Consumer Court, Gujranwala (respondent No, 1).
2. Shorn of unnecessary details, respondent No, 2, instituted a complaint under Section 25 of the Punjab Consumer Protection Act, 2005 (hereinafter to be referred as the Act) against the petitioner with the averments that he is entitled to the damages and compensation due to the loss suffered by him on account of the service provided by the petitioner-company. During pendency of the complaint, respondent No, 2 submitted an application for production of notice sent by him and record of Short Message Service (SMS). During the proceedings on the said application the petitioner-company was directed to produce certain documents but it failed to do so. As a result, respondent No, 1, vide impugned order dated 18.12.2012, struck down defence of the petitioner- company for non-production of the documents; hence the instant petition.
3. After hearing arguments on 12.02.2014 judgment in this case was reserved. However, due to passing of considerable period the matter was ordered to be fixed for today. On court's query as to whether they want .To add anything more in addition to the arguments advanced on the previous date of hearing, learned counsel for the petitioner as well as Respondent No, 2 states that they would content with the arguments advanced on the previous date of hearing.
4. The arguments put forth by the learned counsel for the petitioner can be summed up in the words that respondent No, 1 has committed illegality while directing production of certain documents prior to deciding fate of the application filed by respondent No, 2; that the provisions of Order XI, rule 21, CPC only comes into play when there is a discovery qua new facts but in the matter in hand according to claim of respondent No, 2 himself he sent notice to the petitioner- company to make good the loss suffered by him; that non-compliance of provisions of Order XI, CPC regarding production of a document does not entail any penal action; that even prior to passing any penal order against the defaulting party, his opponent is bound to file a formal application which has not been done in the present case, thus, the impugned order is not sustainable; that due to passing of the impugned order the petitioner-company would not be. Able to defend claim worth millions of rupees filed against it; that even otherwise if the petitioner- company sends a message to the consumer it is optional for him either to reply it or delete it and that when respondent No, 2 himself indulged in replying messages, sent to him by the petitioner- company, he cannot blame it for loss caused to him. In support of his contentions, learned counsel has relied upon the cases reported as Ashiq Hussain v. Sikandar Shah and 14 others (2011 CLC 373); Dr. Shamshad Hussain Syed v. District. Consumer Court, Lahore and another (PLD 2010 Lahore 214), Sultana Qamar v. Mst. Rasulan (1993 MLD 425), Parveen Akhtar v. Daniel Gulzar and another (1993 MLD 767). Sapphire Textile Mills Ltd. v. Collector of Central Excise and Land Customs, Hyderabad 19910 CLC 456), Chinnappan v. Rariia Chandran (AIR 1989 Madras 314) and India Foils Ltd. v. The 5th Industrial Tribunal, West Bengal and others (A113 1972 Calcutta 308).
5. On the other hand, the arguments, advanced by the learned counsel for respondent No, 2 can be summarized in the words that as the petitioner-company did not assail order dated 21.11.2012 whereby it was directed to produce documents, it cannot challenge the subsequent order qua striking out his defence that the order impugned in this petition is appealable in terms of Order XLIII, rule 1, CPC, therefore, the instant petition is not maintainable; that even otherwise according to Section 34 of the Act the impugned order being interim in nature is not challengeable before any forum including this Court: In addition to his oral submissions, learned counsel has relied upon the cases reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SC M R 1165), Muhammad Chottay Khan v. Muhammad Munir Khan and 2 others (1990 CLC 1057), M/s. Narosa Publishing House v. Jagbir Singh (AIR 2000 Deh 330), Maung Khant Gyi and others v. Ma Thet Hnin and others (1925 Rangoon 218).
6. Learned counsel for the petitioner, while exercising his right of rebuttal, in response to the objection raised by learned counsel for respondent No 2 qua maintainability of instant petition, submits that the Act, being special law, has overriding effect over the general law viz. Civil Procedure Code; that since only a final order passed by a Consumer Court can be challenged in an appeal before this Court. The petitioner has no other remedy but to file the instant petition; that as the main complaint is pending decision, the order in this petition can only be hailed as ,an interim one Relies on Govt. Of Pakistan through Secretary Ministry of Interior, Islamabad v. Dr. Abdul Qadeer Khan (2010 MLD 533) and S.N. Gupta & Co. v. Sadananda Ghose and others (PLD 1959 Dacca 330),
7. I have heard learned counsel for the patties and have also gone through the documents annexed with this petition in addition to the case-law cited at the bar.
8. Firstly, taking up the question regarding maintainability of instant petition, I am of the opinion that there is no cavil with the preposition that any order arising out of an application filed under Order XI, CPC is appealable in terms of Order XLIII, CPC when an order has arisen out of a suit being adjudicated upon by the Civil Court but in the instant case the remedy of appeal is regulated in terms of Section 33 of the Act according to which no appeal except against the final order of a Consumer Court is maintainable. Further, there is nothing in the Act debarring an aggrieved person to challenge an interim order before the higher forum as the legislator has not rendered the interim orders as non-appealable/non-revisable/non-reviewable in express provisions. Moreover, the jurisdiction of this Court, vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is attracted only when a party has no alternate remedy as no aggrieved person can be left remediless. Insofar as the case-law referred by the learned counsel appearing on behalf of respondent No, 2, on this point is concerned, suffice it to observe that the same is not applicable in the instant matter inasmuch as in the case. Of Syed Saghir Ahmad Naqvi (supra) the apex Court of the country has held that when statute itself' has rendered the interlocutory order non- challengeable the same cannot be assailed in writ jurisdiction which is not the position in the case in hand as nowhere in the Act the legislature has declared the interim' order as non-appealable in clear cut words. Likewise, rest of the cases relied upon by the learned counsel for respondent are of no help for the reason that the same pertain to remedy of appeal against an order passed under Order XI, .CPC in the matters arising out of the proceedings pending before a civil Court while the instant case has arisen .Out of [proceedings of a complaint pending before the Consumer Court.
As no appeal or revision has been provided against the impugned order, I have no doubt in my mind to hold that the instant petition is maintainable. {{BLUR PAGE}} ' A perusal of the application, filed by respond No, 2, shows that the same was filed in terms of Section (3)(b) of the Act read with Order XI, rules 12 & 14, Cr article 76 of qanoon-e-Shahadat Order, 1984, for An of original notice sent by him to the petitioner-company or in the alternate permission to produce copy thereof in the shape of secondary evidence. In addition thereto, he also prayed for production of record qua SMS/detailed description of data sent by the defendants to the complainant as referred in the complaint filed by him. To resolve the controversy a perusal of Section 30(3) of the Act is of paramount consideration which for convenience of reference is reproduced herein below:--- {{BLUR PAGE}} "For the purposes of this section, the Consumer Court shall have the same powers as are vested in civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), while trying a suit, in respect of the following matters, namely
(a) the summoning and enforcing attendance of any defendant or witness and examining him on oath;
(b) the discovery and production of any material object which may be produced as evidence;
(c) the receiving of evidence or affidavits;
(d) issuing of commission for the examination of any witness; and
(e) any other matter which may be prescribed.
10. According to clause (b) of sub-section (3) of Section 30 of the Act a Consumer Court has been vested with the power inter alia directing discovery and production of any material object which may be produced as evidence. As far as the present case is concerned, respondent No, 2 submitted an application with the afore-mentioned prayer which was contested by the petitioner- Company by submitting reply thereto. The application, subject-matter of the present petition, came up for, preliminary hearing on 04.09.2012 whereafter the proceedings were being, adjourned for various reasons. Till 14.11.2012 there-was no-order regarding production of record by the petitioner-company, however, by virtue of order dated 21.11.2012 while adjourning the case for 01.12.2012, with a warning to the petitioner-company of last opportunity to address arguments on the application filed by respondent No, 2 the Court also ordered for production of record. A Court has been empowered to order for discovery of document upon an application of a party in terms of the provisions of Order XI, rule 12, CPC while simultaneously the Court can order for production of a document while exercising the power under Order XI, rule 14, CPC. The consequences of non compliance of any order passed by the Court, while pressing into service the provisions of Order XI,- CPC, have been postulated under rule 21 of the said Order, which for convenience of reference is reproduced herein below:- "Non-compliance with order for discovery.---Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect.
And an order may be made accordingly".
' A perusal of afore-quoted rule shows that a party can be penalized when it fails to comply with any order to answer interrogatories, or for discovery or inspection of a document. There is no mention of penalty for non-production of a document. When no penultimate provision is available under the relevant law, at the most, the Court can draw adverse inference against the defaulting party instead of dismissing his suit or striking out its defence. Further, no party should be knocked out on the basis of technicalities. While dealing with the preposition regarding invocation of penal provisions of rule 21 of Order XI, CPC the apex Court of the country in the case of M/s. United Bank Ltd. v. Yousuf Haji Noor Muhammad Dhadhi (1988 SCMR 82) has inter alia observed as under:--- "Therefore, the penal provisions are not attracted in a case where no order by the Court to discover the documents has been passed. On the record before us there does not appear to have been passed any order by the Court directing the plaintiffs to file affidavit of documents. Mere making of application for discovery of documents ipso facto does not amount to an order for such discovery to be made by affidavit. Therefore; the application for dismissal of the suit under Order XI, rule 21 seems to us to be wholly incompetent. An order dismissing the suit on such application would be patently without jurisdiction.
11. Now coming to the preposition regarding consequences of non-compliance of an order passed by this Court with ,specific reference to Order XI, rules 12 & 14, CPC, I am of the view that till decision of application filed by respondent No, 2 the learned Presiding Officer was not obliged to pass any penal order against the petitioner company for non-compliance of rule 12 of Order XI, CPC. It is also worth mentioning that penal provisions of Order XI rule 21 can only be invoked when a party fails to comply with any order mentioned therein. This situation has beautifully been dealt with by the Sindh High Court in the case of Karachi Catholic Cooperative Housing Society Ltd. v. Chrisol Miranda and others (2001 MLD 1462) wherein the law has been laid to the following effect:--- "Having considered the provisions, contained in Order Xl. Rule 21, C.P.C. It is clear that the penalty postulated, thereby, is attracted upon non-compliance with specified categories of orders. Such categories cannot be expanded and the penal consequences postulated under Order Xl, Rule 21, C.P.C. Cannot be applied to the categories which do not find mention therein. In the present case, the direction, contained in orders dated 17.8.1998 and 23.9.1998, was for providing further and better particulars which is not covered by the provisions of Order Xl, Rule 21, C. P. C. / find myself.
To that -extent, in agreement with the stand, taken by Mr. R.F. Virjee."
' If we adjudge the impugned order on the touchstone of the afore-mentioned judgment, a perusal of order sheet of the District Consumer Court, Gujranwala, shows that at no stage the fate of the application filed by respondent No, 2 was decided. It is of paramount consideration that penal provisions of rule 21 (Supra) do not come into play ipso facto on mere filing of an application by a party under Order XI, rule 21. CPC. In this regard, my view stands fortified from a very illuminated judgment of the august Supreme Court of Pakistan in the case of M/s. United Bank Ltd. v. Yousuf Haji Noor Muhammad Dhadhi (PLJ 1987 SC 636) wherein while dealing with somewhat similar situation, it has been ruled as under:- "Mere making of application for discovery of documents ipso facto does not amount to an order- for such discovery to be made by affidavit, Therefore, the application for dismissal of the suit under Order XI, file 21 seems to us to be wholly incompetent., An order dismissing: the suit on such application -would be patently without, jurisdiction."
' Thus, the order regarding striking out defenee of the petitioner-company seems to be somewhat harsh. {{BLUR PAGE}}
12. ' There is-no. Denying the fact that Court can suo. Motu order for productioft of any document - which. Otherwise seems to be relevant, for just decision',Of.The /is pending before it.But the Court should not exercise such ,power when application: on :the subject is Already *pending I before t andhe opposite party is, contesting the same with full -vigor.-
13. It is'also important to mention over here that order for Production. Of dodurnents without decision of the application filed by respondent No,.2, is aimed at to deprive the petdoner::company to agitate' the matter before a ,higher forum if was aggrieved of the order passed by the learned Presiding Officer on the application filed by respondent No, 2.
14. As far as the contention of respondent No, 2 that he suffered immeasurable loss due to conduct and service of petitioner-company, suffice it to observe that the said question would be decided by the learned Presiding Officer iat, the time of final adjudication of the matter .Pending are him and the same cannot be decided in these proceedings.
15. For what has been discussed above, I have no doubt in my mind to hold that the :learned Presiding Officer was not justified to take any penal' action against the petitioner-company prior to finally deciding the fate of application filed by respondent No,
2. Consequently, instant petition is accepted and the impugned order dated 18.12.2012 is set aside with a direction' to respondent' No, 1 to decide the fate of the application filed by respondent No, 2 within one month from the receipt of certified copy of this order. He is further directed to decide the main case pending between the parties within six months positively under intimation to this Court through Deputy Registrar (Judicial). No order as to cost.
16 Office is directed to immediately transmit a copy of this order to respondent No, 1 for compliance. {{BLUR PAGE}}