MIRZA VIQAS RAUF , J. This appeal under Section 33 of the Punjab Consumer Protection Act, 2005 (hereinafter referred to as "Act, 2005") is directed against the order dated 21st June, 2016, whereby learned Presiding Officer, District Consumer Court, Lahore proceeded to dismiss the claim of the appellant filed under Section 25 of the Act ibid.
2. Facts in brief necessary for adjudication of instant appeal are that the appellant purchased confirmed ticket of respondent No.1 (hereinafter referred to as "Airline") from respondent No.2 (hereinafter referred to as "travel agent") for travelling from Lahore to Warsaw on 16th July, 2014 and back to Lahore from Warsaw on 22nd July, 2014. On completion of her visit, the appellant when inquired, she was informed by the officials of Warsaw Airport that the return ticket has already been refunded and when she was returning, a dacoity was committed with her on gun point and the assailants snatched her bag containing her belongings including 500 euros and gold ornaments etc. The assailants also dragged her and in scuffle she was badly injured and was hospitalized. In this background, the husband of the appellant arranged an amount of Rs.108,000/- for purchas e of return ticket and she also borrowed an amount from her husband' s friends and returned back to Pakistan in a very miserable condition. It is claim of the appellant that she though approached the "travel agent" but he refused to admit his fault and shifted the liability upon the "Airline, who also refused to acknowledge the claim of the appellant. This constrained the appellant to serve a legal notice but of no avail whereafter she preferred a claim before the learned Consumer Court established under the "Act 2005". The claim was contested by the respondents, who submitted their written statements wherein they pleaded that the claim is not maintainable and it is barred by time as well. After having received the affidavits from the parties in support and contra to the claim, the learn ed Consumer Court proceeded to dismiss the claim vide order dated 21st June, 2016.
3. Learned counsel for the appellant submitted that claim of the appellant has been discarded mainly on the ground that it is barred by time. He added that the question of limitation was previously decided by the learned Consumer Court by way of order dated 18th November , 2015 and as such, dismissal of claim on the basis of limitation is highly unwarranted. Learned counsel contended that even otherwise, learned Consumer Court decided the claim in an illegal and unlawful manner .
4. Conversely , learned counsel representing the respondents seriously resisted this appeal and submitted that claim was rightly rejected by the learned Consumer Court.
5. Heard. Record perused.
6. In order to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith "Act, 2005" was promulgated. Part VIII of the "Act, 2005" deals with the disposal of claims and establishment of Consumer Courts. By virtue of Section 25, a claim for damages arising out of contravention of any provisions of the "Act, 2005" is to be filed before a Consumer Court set up under the Act ibid. Section 26 of the "Act, 2005" prescribes the manner of establishment of Consumer Courts.
Section 28 deals with the settlement of claims and in terms of Sub-Section 4, a claim by the consumer or the Authority can be filed within 30 days of arising of cause of action.
7. It is apparent from the record that during the proceedings, alongwith written statement an application under Section 28 of the "Act 2005" was filed by the "Airline" seeking rejection of claim on the ground that it is barred by time. In response thereto, the appellant filed a reply of the said application and also moved an application seeking condonation of delay . Both the applications were taken up together by the learned Consumer Court and decided through order dated 18th November , 2015 holding that the claim filed by the appel lant is well within time. The said order was never assailed by the respondents and as such that attained finality .
8. It clearly evinces from the impugned order that claim of the appellant has main ly been rejected on the ground that it was filed after the prescribed period of limitation. It is quite strange that after holding the claim within time on the previous occasion, the learned Consumer Court has taken a summersault and decided the question of limitation otherwise through impugned order , which is not permissible.
9. There is yet another important aspect that by way of order dated 18th November , 2015, the learned Consumer Court, while making reference to Section 30 of the "Act 2005" observed that the Act provides speedy redressal of the consumer complaints and for speedy redressal of complaints under Section 30 (i) (c) of "Act 2005", the legislature has not prescribed that evide nce of the parties on facts should be recorded rather it has simplify the procedure and has given power to the Court to decide the matter on the basis of evidence according to the accepted industrial standard by inviting expert evidence in this regard when it is alleged that product is defective. In this background, the learned Consumer Court, while declining the right of cross-examination to the respondents proceeded to decide the claim in a summary manner . The learned Consumer Court in furtherance thereto adjourned the proceedings for evidence on facts through affidavits by the parties and directed them to appear in person qua settlement of proceedings under Section 29 of the "Act 2005". It is thus established from the record that on receipt of affidavits from the parties, the learned Consumer Court straight away proceeded to pass the impugned order .
10. Section 30 of the "Act, 2005" prescri bes the procedure for the Consumer Court on receipt of claim, which is twofold. First part pertains to a claim, which relates to the products and second to the services, which is relevant for the matter in issue. For ready reference and convenience, Section 30 is reproduced below: -
30. Procedure on receipt of complaint.--(1) The Consumer Court shall, on receipt of a claim if it relates to any products,-
(a) forward a copy of the claim to the defendant mentioned in the claim directing him to file his written statement within a period of fifteen days or such extended period not exceeding fifteen days;
(b) where the defendant, on receipt of claim referred to him under clause (a), denies or disputes the allegations contained in the claim, or omits or fails to present his case within the time specified, as the case may be, the Consumer Court shall proceed to settle the consumer dispute in the manner specified hereafter;
(c) where the claim alleges that products are defective and do not conform to the accepted industry standards, the Consumer Court may decide the dispute on the basis of the evidence relating to the accepted industry standards and by inviting expert evidence in this regard;
(d) where the dispute cannot be determined without proper analysis or test of products, the Consumer Court shall obtain sample of the products from the complainant, seal it and authenticate it in the manner prescribed and refer the sample to a laboratory along with a direction to make analysis or test, whicheve r may be necessary with a view to finding out if such products suffer from any defect and to report its findings to the Consumer Court within a period of thirty days of the receipt of the reference or within such period as may be extended, not exceeding fifteen days by the Consumer Court; and
(e) the Consumer Court may require the claimant to deposit to the credit of the Consumer Court such fees as may be specified, for payment to the laboratory for carrying out the necessary analysis or test and the fee so deposited by the claimant shall be payable by the defendant if the test or analysis support the version of the claimant.
(2). The Consumer Court shall, if the claim relates to any services.-
(a) forward a copy of such claim to the defendant directing him to file written statement within a period of fifteen days or such extended period not exceeding fifteen days as may be granted by the Consumer Court; and
(b) on receipt of the written statement of the defendant, if any, under clause (a), proceed to settle the dispute on the basis of evidence produced by both the parties: Provided that if the defendant does not deny or dispute the allegations made in the complaint or fails to present his case within the specific period, the dispute shall be settled on the basis of the evidence brought by the claimant.
(3) 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 XX 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 document or other material object which may be produced as evidence;
(c) the receiving of evidence on af fidavits;
(d) issuing of any commission for the examination of any witness; and
(e) any other matter which may be prescribed.
(4) .....
(5) .....
(underlining supplied for emphasis)
It is thus manifestly clear from the above that dispute between the parties can only be resolved on the basis of evidence.
11. The word "evidence" has though nowhere defined in the "Act, 2005" but its ordinary meanings are given in various law dictionaries to the following ef fect: -
1. P RAMANTHA AIYAR'S ADVANCED LA W LEXICON THE ENCYCLOP AEDIC LA W DICTIONAR Y WITH WORDS & PHRASES, LEGAL MAXIMS AND LA TIN TERMS 4TH EDITION VOLUME 2 D-I.
'Evidence" defined (NB)--This word is also used in combination with other words as in the following phrases,-- Conclusive evidence; Continuous Proof; Fabricating false evidence; Giving false evidence; Oral evidence; Primary evidence; Secondary evidence).
"EVIDENCE" means and includes--(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
"The word 'evidence ' signifies in its origin al sense, the state of being evident; i.e., plain, apparent, or notorious. But by an almost peculiar inflexion of our language, it is applied to that which tends to render evident or to generate proof. This is the sense in which it is commonly used in our law books Evidence, thus understood, has been well- defined, any matter of fact, the effect, tendency , or design of which is, to produce in the mind a persuasion, affirmative or disaf firmative, of the existence of some other matter of fact."
Evidence is information by which facts tend to be proved, and the law of evidenc e is that the body of legal rules regulating the means by which facts may be proved in Court of law and tribunals and arbitrations in which the rules of evidence are applied. It is adjectival rather than substantive law .
EVIDENCE is the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writings or records.
Evidence is the usual means of proving or disproving a fact or matter in issue. The law of evidence indicates what may properly be introduced by a party , (that is, what is admissible), and also what standard of proof is necessary (that is the quality or quantity of evidence necessary in any particular case). In short, the law of evidence governs the means and manner in which a party may substantiate his own case, or refute that of his opponent.
The word 'evidence' defined in Section 3 of the Indian Evidence Act (1 of 1872) needs and includes both oral and documentary evidence. According to Taylor 'evidence' means all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. Phipson says 'evidence' means the testimony whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute, as cited in Nand Kishore Raj v. Secretary Arei Kana SCS Ltd., AIR 1999 Ori 46,48.
'The mere statement of plaintif f's witnesses cannot constitute the plaintif fs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintif fs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintif fs evidence cannot be acted upon.'
Evidence means what a Court permits a witness to state (oral evidence) and all documents produced before the Court (documentary evidence). Evidence is permitted of all facts in issue and relevant facts.
"Evidence" means and includes all statem ents which the Court permits or requires to be made when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact.
BLACK'S LA W DICTIONAR Y TENTH EDITION Evidence.
1. Something (including testimony , documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact <the bloody glove is the key piece of evidence for the prosecutions> 2. See fact in evidence under fact. 3.
The collective mass of things, esp. testimony and exhibits, presented before a tribunal in a given dispute < the evidence will show that the defendant breached the contract>.
4. The body of law regulating the admissibility of what is offered as proof into the record in a legal proceeding <under the rules of evidence, the witness' s statement is inadmissible hearsay that is not subject to any exception>. -- Also termed (in sense 4) rules of evidence; law of evidence. -- evidence, vb "Evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact."
"The 'rules of evidence' are such precepts in the general subject of judicial administration as determine the manner in which a designated fact submitted to judicial decision may be proved; whether such a fact may be proved at all if so, who are competent to prove it and under what conditions. In the aggregate, these rules constitute the 'law of evidence."
"Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain. Evidence is the demonstration of a fact; it signifies that which demonstrates, makes clear , or ascertains the truth of the very fact or point in issue, cither on the one side or on the other . In legal acceptation, the term 'evidence' includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 'Evidence' has also been defined to mean any species of proof legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, and the like."
MERRIAM-WEBSTER'S DICTIONAR Y OF LA W Evidence.
Something that furnishes or tends to furnish proof; esp: something (as testimony , writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact -- see also ADMISSIBLE. BEST EVIDENCE RULE. EXCLUSIONAR Y RULE, EXHIBIT , FOUNDA TION, OBJECTION, PREPONDERANCE OF THE EVIDENCE, RELEV ANT. SCINTILLA. STATE'S EVIDENCE.
SUPPRESS, TESTIMONY , WITNESS, Federal Rules of Evidence in the IMPOR TANT LAWS section; compare ALLEGA TION, ARGUMENT , PROOF AMERICAN JURISPRUDENCE SECOND EDITION. (VOLUME 29)
Nature and definition of evidence Evidence is matter that makes clear the truth of fact, persuades a court of the existence of fact, or produces a just conviction of truth. It is further defined as any species of proof legally presented at trial through the medium of witnesses, records, documents, exhibits, and concrete objects for the purpose of inducing belief in the minds of the court or jury as to their contention. The word "evidence" thus includes all the mean s by which any fact in dispute at a judicial trial is established or disproved. Any circumstance which affords an inference as to whether the matter alleged is true or false is therefore eviden ce, and is commonly understood to be within the meaning of that term. An inference cannot be derived from another inference, instead an inference must be based on a known or proved fact.
The object of all evidence is to inform the trial tribunal of the material facts which are relevant as bearing upon the issue, in order that the truth may be elicited and that a fair determination of the controversy may be reached.
Evidence is logically relevant if such evidence tends to make the existence of any material fact more or less probable than it would be without the evidence.
12. Article 2 (c) of Qanun-e-Shahadat Order , 1984 (hereinafter referred to as "Order 1984"), however , provides the definition of "evidence" as under: - 2(c) "evidence" includes
(i) all statements which the Court permits or requires to be made before it by witnes ses, in relation to matters of fact under inquiry , such statements are called oral evidence, and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence; The above provision was introduced in the "Order 1984" in place of Section 3 of the Evidence Act, 1872 on its repeal wherein "evidence" was defined as :- "Evidence" means and includes--
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry , such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence; On comparative analysis it is evident that both the above statutes provide the defini tion of term "evidence" in almost similar and alike manner .
13. Affidavit by itself is not included in the term "evidence". The provisions of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "Code"), relating to summoning and enforcing attendance of any defendant or witness and examining him on oath or the discovery and production of any docume nt or other material object which may be produced as evidence or the receiving of evidence on affidavits or issuing of any commission for the examination of any witness and any other matter which may be prescribed, have been clearly made applicable by virtue of Section 30 to the proceedings before the Consumer Court under the "Act 2005".
14. Section 139 of the "Code" lays down the procedure of administering oath to the deponent on the affidavit, which reads as under:-
139. Oath on affidavit by whom to be administered.--In the case of any affidavit under this Code--
(a) any Court or Magistrate, or
(b) any of ficer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which this Provincial Governm ent has generally or specially empowered in this behalf, may administer the oath to the deponent."
Affidavits can only be used as evidence in terms of Order XIX of the "Code". It is trite law that an affidavit per se does not become evidence unless so consented by the parties or where it is specifically authorized by a particular provision of law .
15. There is no cavil that the prime object of the "Act 2005" is to protect and promote the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith but it does not mean that the Consumer Court should proceed in a mechanical manner to achieve the object of the statute. When the Court is of the opinion that the claim is to be settled by receiving of evidence on affidavits, it has to adhere the procedure prescribed in Order XIX of the "Code".
16. It is noticed that the Punjab Rented Premises Act, 2009 also provides almost a similar procedure for recording of evidence on affidavits but does not authorize the Rent Tribunal to treat the affidavit as permissible evidence without allowing the opponent party to cross-examine the deponent, who submitted the af fidavit.
17. The West Pakistan Family Courts Act, 1964 is also one of the statutes, which provides speedy and swift mechanism for settlement and disposal of disputes relating to marriage and family affairs but in none of the above statutes, af fidavits are received as evidence per se admissible.
18. Needless to observe that in terms of Section 29 of the "Act, 2005" the Consumer Court is vested with the power to settle the dispute at pre-trial stage in the manner provided therein. After having failed to resolve the dispute at pre-trial stage, the Consumer Court has to advert to Section 30 of the Act ibid in terms whereof the Consumer Court has to proceed in any of the manners provided in Sub-section 3 and it is not obligatory that in all eventualities, the Consumer Court should resolve the dispute by receiving affidavits of the parties merely . Even if the Court is of the opinion that the matter interse can be resolved by receiving affidavits, it has to adopt the procedure contained in Order XIX of the "Code".
19. The nutshell of above discussion is that the learned Consumer Court has failed to adhere the relevant provisions governing the subject. It is an oft repeated principle that whenever law provides specific manner for performing an act, it shall be done in that manner but in no other way. Guidance in this respect can be sought from ATTAULLAH KHAN v. ALI AZAM AFRIDI and others (2021 SCMR 1979 ) and A.IMIR SHAH, EX-SEPOY v. The INSPECT OR-GENERAL, FRONTIER CORPS KHYBER PAKHTUNKHW A and another (2020 SCMR 2129 ).
Reference can also be made to .IEHANDAD v . THE ST ATE (PLD 1994 Peshawar 279).
20. For the foregoing reasons, this appeal is allowed. As a result thereof, order dated 21st June, 2016 passed by the learned Presiding Officer, District Consumer Court, Lahore is set aside, being illegal and unlawful. As a sequel, claim filed by the appellant shall be deemed to be pending before the learned Consumer Court, who shall decide the same afresh on its own merits strictly in accordance with law and keeping in view the observations recorded hereinabove without touching the question of limitation.
21. Before parting, it is observed that in view of pendency of lis for a considerable long period, it is expected from the learned Consumer Court, seized with the matter , to decide the claim expeditiously , keeping in view the mandate of Section 30 (5) of the "Act, 2005". Parties are directed to appear before the learned Consumer Court, Lahore on 15.06.2022 .
22. Office to circulate this judgment amongst all the Presiding Officers of the Consumer Courts as well as District Judges of all the Districts within province (Punjab).