' SADAQAT ALI KHAN, J.---This judgment shall dispose of:--
(i) F .A .0. No,17/2009 titled Muhammad Ameer Qazi v. Mohammad Asif Ali etc.
(ii) F.A.O. No,18/2009 titled Muhammad Ameer Qazi v. Ali Ahmad
(iii) F.A.O. No,19/2009 titled Muhammad Ameer Qazi v. Zulfiqar Ali etc. As the common point of jurisdiction is involved in all three appeals.
2. Brief facts of the case are that Muhammad Asif Ali respondent in FAO No,17/2009, Ali Ahmed respondent in F.A.O. No,18/2009, and Zulfiqar Ali, and Mohammad Irfan respondents in F.A.O.
No,19/2009 moved three separate applications in the District Consumer Court, Bahawalpur on 11-2- 2009 with assertion that they had purchased plots on installments spreading over four years and had been depositing installments with receipt regularly and are not defaulters. They stopped the installments when they received the receipts of the installments without signatures of the owner.
They stated that the owner is not ready to transfer the land in their favour and that their grievance may be redressed by directing the owner to transfer the land in their favour. Muhammad Ameer Qazi appellant in all three matters made entrance in the said court and was directed to submit written reply to the applications of the respondents. On 10-4-2009 following order was passed by the Court below in three applications separately which is reproduced as under:-- {{URDU TEXT}}
3. The above order has been challenged in all the three appeals before this Court.
4. Mr.Tariq Mehmood Chaudhary, Advocate for appellant, in all three appeals contended:--
(i) that the District Consumer Court had no jurisdiction to entertain the applications of the respondents which were regarding the alleged agreement to sell and Consumer Court was not a Civil Court;
(ii) that order of the lower court by disposing of the matter on alleged statements of the parties is not legal and is beyond the jurisdiction;
(iii) that with the consent of the parties no court can assume the jurisdiction, if court has no jurisdiction and that the impugned order in all the three matters are liable to be set aside.
5. Mr. Ghazanfar Ali Khan, Advocate for respondents in all three appeals contended that present appellant himself appeared in the Court and made a statement for transferring the land in their favour as agreed between the parties according to the agreement mentioned in their applications moved in District Consumer Court. He further contended that as both' the parties themselves made statements regarding compromise in the Court so District Consumer Court has committed no illegality while recording compromise statements of the parties and disposal of the matter and lastly contended that all the three appeals may be dismissed.
6. I have heard the learned counsel for the parties and have perused the record.
7. The preamble to the Punjab Consumer Protection Act (PCPA states:- Preamble:---Whereas, it is expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith."
8. Consumer is defined in Section 2-C of the Consumer Protection Act, 2005 as under:- 2(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 re-sale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services; ' Explanation:- ' For the purpose of Sub-clause
(i) "commercial purpose" does not include use by a consumer of products bought and used by him only for the purpose of his livelihood as a self-employed person.
Services are defined in 2-K of PCPA Act 2005 is .As under:- "Services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services 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; ' Section 13 of the PCPA 2005 is as under:- Liability for faulty or defective services.- ' A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage ' Section 28 of PCPA Act 2005, is as under:-
(1) " A consumer who has suffered damage, or Authority in other cases, shall, by written notice, call upon a manufacturer or provider of services that a product or service is defective or faulty, or the conduct of the manufacturer or service provider is in contravention of the provisions of this Act and he should remedy the defects or give damages where the consumer has suffered damage, or cease to contravene the provisions of this Act.
(2) The manufacturer or service provider shall, within fifteen days of the receipt of the notice, reply thereto.
(3) No claim shall be entertained by a Consumer Court unless the consumer or the Authority has given notice under subsection (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto.
(4) A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: ' Provided that the Consumer Court, having jurisdiction to hear the, claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: ' Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services.
' Section 31 of PCPA Act 2005, is as under.- ORDER OF CONSUMER COURT ' If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:- ' to remove defect from the products in question; ' to replace the products with new products or similar description which shall be free from any defect; ' to return to the claimant the price or, as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act;
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyer's fees incurred on the legal proceedings;
(h) to recall the product from trade or commerce;
(i) to confiscate or destroy the defective product;
(j) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard.
8. The Contents of the application of each respondent is as under:-- {{URDU TEXT}}
9. Perusal of the above provisions shows that in order to invoke the jurisdiction of the Consumer Court, the complainant must first qualify to be "Consumer". To be a Consumer under the said Act, a person must hire the "Services" for a certain consideration from the services provider. In case there is no Services being availed by the complainant and no consideration being paid in return for the said services, the complainant does not qualify to be a Consumer and, therefore, the matter goes outside the fold of said Act.
10. According to the contents of all the three applications all the applicants alleged that there was an agreement regarding the purchase of plots but present appellant has refused to execute the register sale deed in their favour. This matter relates to the breach of contract and civil court has the jurisdiction and absolutely Consumer Court had not the jurisdiction who had wrongly entertained such an applications for execution of the agreement to sell regarding immoveable property and decided the same illegally without jurisdiction. As dispute regarding immoveable property cannot be converted as consumer dispute since there is no sale of goods or services for consideration. The arguments of the learned counsel for the respondents that both the parties with their consent decided the matter from District Consumer Court is not tenable as it is held in case titled "Administrator, Thal Development through EACO Bhakkar and others v. All Muhammad" (2012 SCM R 730) as under:- ' Consent of the parties can neither confer nor can take away the jurisdiction of a Court/Tribunal, unless so conferred or barred by law."
' Jurisdiction of the Consumer Court is different from the civil jurisdiction. Consumer Court is to identify a consumer a building service and then if the service is defective, the Consumer Court is to fix damages and award the same as stated above. Needless to mention here that it is the duty of every court to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on mere concession of one or the other party.
11. In view of what has been discussed, these three appeals are allowed and order dated 10-4-2009 passed by District Consumer Court Bahawalpur, is set aside by dismissing all three applications of the respondents.