ASIM HAFEEZ, J. Through this single judgment, this appeal as well as connected appeals bearing FAO No.205 of 2011 titled "Ch. Muhammad Mansha v. District Judge/Presiding Officer, District Consumer Court, etc." and FAO No.206 of 2011 titled "Taj Muhammad v. District Consumer Court, etc." are proposed to be decided, all of which encompass similar questions of law , touching the jurisdiction of the Consumer Court.
2. Briefly the facts, essential for deciding appeals under reference, are that appellants purchased confirmed return tickets with Saudi Arabian Airlines for travelling to the Kingdom of Saudi-Arabia for the performance of Umrah. On 26.04.201 1, appellants approached Jeddah Airport to catch a return flight to Lahore, Pakistan, via Riyadh. It was alleged in the complaint, filed under section 25 of the Punjab Consumer Protection Act, 2005 ("Act of 2005"), that boarding passes were issued, however , the airport security contacted appellants and took away their passports for security verification. When the passports were returned; scheduled flight had already departed. The appellants purchased new tickets and returned to Pakistan, on next available flight. The appellants approached learned Judge District Consumer Court at Multan, (Consumer Court), apparently on refusal of the respondent No.2 to pay compensation for alleged faulty and defective services. Respondent No.2 submitted written statement, wherein allegation of faulty and defective servic e was refuted. After hearing the parties, Consumer Court disposed of complaint vide order dated 24.08.201 1, holding that cause of action accrued at Jeddah Airport, hence, territorial jurisdiction was lacking. Hence, instant appeals.
3. Learned counsel for the appellants submits that Consumer Court has erred in law and failed to assume, and exercise jurisdiction vested in it. Submits that cause of action accrued within the territorial jurisdiction of Consumer Court at Multan, where the tickets were purchased from the respondent No.3, being a ticketing agent of respondent No.2.
4. Learned counsel appearing on behalf of the respondents supported the impugned order . Submits that the Consumer Court lacked jurisdiction to entertain the complaint, in view of the facts pleaded. Learned counsel contends that territorial jurisdiction was lacking, which issue was correctly determined by the Consumer Court.
5. After hearing the counsels and perusal of the impugned order , in the context of the complaint instituted and allegations therein, the domain and exten t of jurisdiction of the Consumer Court lies at the heart of the controversy .
The jurisdictional issues, in this case, have to be contextualized in the context of the allegations attributed in the complaint, nature and extent thereof, and the scope of statutory framework enacted, defining scope of special jurisdiction of the Consumer Court. One must not lose sight of critical fact that Act, 2005 is a special enactment and jurisdiction conferred on the Consumer Court is also special jurisdiction, assumption and exercise thereof is dependent upon strict compliance of requisite conditions prescribed and existence of triable claim. It is expedient to reproduce relevant provisions of Act of 2005, which read as; "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 resale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services; 2(d) "damage" means all damage caused by a product or service including damage to the product itself and economic loss arising from a deficiency in or loss of use of the product or service; 2(k) "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.
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 25.
Filing of Claims.- A claim for damages arising out of contravention of any provisions of this Act shall be filed before a Consumer Court set up under this Act".
[Emphasis supplied]
6. In terms of section 13 of Act, 2005, a service provider can be held liable to compensate the consumer in case of provisioning of faulty and defective servic e, contracted by the service provider . And a claim, on the basis thereof, can competently be brought before the Consumer Court constituted and compe tent to entertain and adjudicate upon the matter . The submissions made by learned counsel, when reviewed in the context of relevant provisions of Act, 2005, suggest that appellants allege d 'provisioning of faulty and defective services by the respondent No.2' and claimed damages, 'as liability for such faulty services, being its proximate cause and effect'. Pertinent question is that whether any default, by way of purported faulty and defective service, was alleged in the complaint. It is not disputed that travelling services were contracted to be provided by the respondent No.2, in the wake of issuance of confirmed return tickets. Respondent No.2 provided contracted service but deny allegation of any responsibility or liability for leaving the appellants stranded at Jeddah Airport. The contents of complaint, in this case, amply provides an insight into the cause of action / grievance alleged therein, which set of allegations would fundamentally determine the factum of availability of jurisdiction of the Consumer Court, in view of the facts pleaded. The appellants, conspicuously , failed to allege or attribute any enforceable default, in lieu of alleged faulty or defective service or breach of any contractual obligation by respondent No.2 - as evident from paragraph No.1 of the complaint. The appellants were essentially required to allege and attribute provisioning of faulty or deficient service, necessarily a probable cause and effect of the damages claimed. The critical allegation of faulty and defective service was conspicuous by its absence. In brief, services contracted, by the respondent No.2, were accordingly provided. There is no denial that tickets issued were processed for the scheduled flight and accordingly boarding passes issued. Appellants proceeded to departure lounge and waited for boarding announcement. In fact, as alleged, appellants were unable to board the Aircraft due to the fact that their passports were physically taken and retained by the airport security staff security for verification purposes, during which process of scrutiny , the flight had departed. It is not the case of the appellants that Airline staff at the airport denied boarding to the appellants or cancelled their confirmed tickets or allowed boarding to other passengers, instead of the appellants.
Where is the fault of the Airline in the performance of the services, requested and correspondingly contracted? The blame at best was attributable to the Airport security staff at Jeddah Airport. In the absence of elemental allegation of faulty and defective service, precisely attributable to the respondent No.2, Consu mer Court lacked subject matter jurisdiction, to entertain and adjudicate upon the complaint.
7. This case has another significant aspect, which also calls for determination. Consumer Court disposed of complaint, primarily , on the question of absence of territorial jurisdiction, observing that in fact cause of action accrued at the Jeddah Airport. Whether disposal of complaint on the basis of these findings / observations is justiciable and legally sustainable? It is expedient to reproduce penultimate portion of impugned order , which reads as under: "The allegation of the petitioner is that he purchased two tickets with confirm seats for Saudi Arabia from respondent No.2 with consideration of Rs.50000/- per person on 26.4.201 1 for the purpose of performing of Umrah.
The return route was Jeddah to Riyadh and Riyadh to Lahore on 26.4.201 1. At Jeddah airport after clearance, the complaint was issued Boarding Card but afterwards security person collected his passport and returned the same when the flight of the complainant had already departure. The petitioner has claimed compensation against the respondent. On behalf of respondent it has been argued that this court lacks jurisdiction to adjudicate this case as the cause of action arouse to the compla inant in Jeddah (Saudi Arabia) which is out of jurisdiction of this court. I agree with the learned counsel for the respondent and my observation is that this court is not the proper forum for seeking any compensation against the respondent, if any cause of action has been created in favour of the petitioner at Jeddah airport (Saudi Arabia ). Therefore, the petition in hand is hereby disposed of with the remarks that the petitioner may file his claim at the proper forum".
[Emphasis supplied]
8. I tend to disagree with the observation s / findings that complaint was not entertainable, merely , due to lack of territorial jurisdiction, as allegedly the cause of action accrued at the Jeddah Airport. Consumer Court, while adjudicating upon the lis before it, misconstrued and misinterpreted the concept of accrual of causes of action(s), for the purposes of determining territorial jurisdiction of the Consumer Court. Consumer Court conspicuously overlooked section 27 of Act, 2005, which is reproduced hereunder , for ease of reference; Section 27.
27. Jurisdiction of Consumer Courts. - Subject to the provisions of this Act, the Consumer Court shall have jurisdiction to entertain complaints within the local limits of whose jurisdiction-
1. (a) the defendant or each of the defendants, where there are more than one, at the time of filing of the claim, actually and voluntarily resides or carries on business or personally works for gain; or
(b) any of the defendants where there are more than one, at the time of the filing of the claim, actually and voluntarily resides, or carries on business, or personally works for gain; provided that in such a case the permission is granted by the Consumer Court or the defendants who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action wholly or in part arises.
[Emphasis supplied]
9. The extent and scope of causes of action(s) cannot be confined to a particular place / location where alleged breach had occurred - for instance act of faulty or defective service occurred or committed - but, in all probability , it may extend to such other places / locati ons, where a part of cause of action has also arisen. A cause of action, wholly or in part, may arise at any such place / location, where an enforceable contract for provisioning of service(s) was entered into, executed, acted upon, performed, partially or otherwis e, or breach thereof committed, etc. And a cause of action may also accrue on the basis of any other tangible event / action, forming part of a component of a cause of action, which is determinable in view of the facts of each case. In this case the extent of cause of action cannot be confined to Jeddah Airport - assuming that any fault or defect in the service contracted was alleged or committed - but extends to other places / locations, wherever a component thereof arose. In terms of sub-section (c) of section 27, ibid, a cause of action may accrue, either wholly or in part, at Multan, where valid and confirmed return tickets were purchased or issued. This act of purchase or issuance of confirmed tickets constitute a part of cause of action, giving Consumer Court authority to assume and exercise jurisdiction. This aspect was not appreciated by the Consumer Court. The respondent No.2 cannot evade or escape its liability - in case any allegation of faulty or defective service in the context of services contracted and consented to be provided was at all alleged - on the pretext that cause of action accrued in a foreign territory , therefore Consumer Court has no jurisdiction. The findings / observatio ns by the Consumer Court, that 'this court is not the proper forum for seeking any compensation against the respondent, if any cause of action has been created in favour of the petitioner at Jeddah airport (Saudi Arabia) ' are erroneous and contrary to section 27, ibid.
10. Notwithstanding error of law committed by the Consumer Court, with regard to the findings qua territorial jurisdiction, the complaint of the appellants was not maintainable in law in view of absence of subject matter jurisdiction of the Consumer Court - when not even a slightest allegation regarding faulty and defective services was attributed to respondent No.2. No case of any alleged violation of section 13 of Act, 2005 is made out. In these circumstances, there is no occasion to remand the matter for re-determination of question of absence of subject matter jurisdiction of the Consumer Court, when such question touching maintainability of action, in the context of jurisdiction, can be decided on the basis of available record, sufficiently enough to pronounce a judgment. The appellate court is vested with the jurisdiction to pass any order , which ought to have been passed by the trial court - Consumer Court in this case - in the exercise of powers under Order XLI Rule 33 of the Code, read with Section 107 thereof. Guidance is sought from the ratio of decision in the case of North-W est Frontier Province Government, Peshawar through Collector , Abbottabad and another V. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 Supreme Court 418), relevant portion in paragraph 5 thereof is reproduced hereunder; ........ "Not unoften it has been noticed by the Courts that the provisions of Order XLI, C.P.C. are not exhaustive.
Seemingly , to fill in the gap in the procedure, section 107 (2) was enacted under which the Appellate Court has the same powers and is burdened with the same duties, as conferred and imposed on the trial Court"
For reference, section 107 of the Code is reproduced below as;
107. Power of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of origina l jurisdiction in respect of suits instituted therein".
[Emphasis supplied]
11. In view of aforesaid, order dated 24.08.201 1 of the Consumer Court and findings / observations recorded therein are varied - altered to hold that not the territorial but subject matter jurisdic tion of the Consumer Court was lacking. See the case of Mst GULNAZ and another v. Haji MUHAMMAD RIAZ and others (PLD 2020 Supreme Court 221) to appreciable principle of variation/alteration of rulings of the courts below .
12. As a sequel to the order in the preceding paragraph, the complaints filed by the appellants are hereby dismissed, being not entertainable by Consumer Court, due to lack of subject matter jurisdiction of the Consumer Court, in view of the facts pleaded in the complaint. All the appeals are disposed of accordingly .
No order as to costs.