Amir Saleem vs Presiding Officer etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No:Writ Petition No. 9210 of 2013.

Amir Saleem. Versus Presiding Officer etc.

S.No. of order Date of order Order with signature of Judge, and that of parties of Proceeding Proceeding counsel, where necessary 16.4.2013. Mr. Irshad HussainWattoo, Advocate, for the petitioner.

This writ petition has been filed against the order dated 10.4.2013 passed by the Presiding Officer, District Consumer Court at Gujrat, whereby on a complaint filed by respondent No.2 the petitioner and respondents No.6 to 11 directed to appear in person on 16.4.2013. It is argued that the impugned order for personal appearance is without jurisdiction and also against the law and facts therefore, the same is liable to be set-aside.

2.I have heard the learned counsel for the petitioner and perused the documents appended with this petition as well as the law on the subject.

3.The first question for adjudication is whether Consumer Court has the jurisdiction to direct the plaintiff or defendant to appear in person.

4.The Consumer Court under section 30 sub section

(3)of the Consumer Protection Act, 1995, (hereinafter referred as an Act)has the same power as vested in Civil Court under the Code of Civil Procedure, 1908 Act, XX of 1908, while trying the suit in respect of various matters mentioned therein.Provisions of Section 30 sub section (3) and 3(a) of the Act are reproduced here under:-

“30. (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:-

5.Order V Rule 3 of Code of Civil Procedure, 1908 deal with the powers of Civil Court to order personal appearance of defendant or plaintiff. Provision of Order VRule 3 of Code of Civil Procedure, 1908 is reproduced as under:-

“Order V. Rule 3. Court may order defendant or plaintiff to appear in person.- Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

(2)Where the Court sees reason to require the personal appearance of the plaintiff on the same day; it shall make an order for such appearance.

6.In view of the aforesaid provisions, it is evident that the Consumer Court has the jurisdiction to order personal appearance of petitioner and respondents No. 6 to 11. Where the Court or Tribunal set up under ordinary law has the jurisdiction to decide a particular matter, then the limits of High Court’s Constitutional jurisdiction to interfere in such order has been enunciated by the Hon’ble Supreme Court of Pakistan in the case of AbdurRehmanBajwa Versus Sultan and 9 others (PLD 1981 SC 522) in the following terms:- “11. The question of jurisdiction of the High Courts under Article 199 has come under consideration in a number of cases before this Court and it has repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction.

In this very case, the HonourableSupreme Court has further relied on its earlier decisions which are as follows:-

BadrulHaque, Khan V. The Election Tribunal, Dacca PLD 1963 SC 704, Raunaq Ali etc. v. Chief

Settlement Commissioner and others PLD 1973 SC 236; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Muhammad HussainMunir v. Sikandar PLD 1974 SC 139; Zulfiqar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 SCMR 530 and Begum Wazir Ahmad Industrial Home v. Niaz Begum

PLD 1976 SC 214.”

In subsequent judgments by the Honourable Supreme Court, besides jurisdictional defect, patent illegality was also made a ground for exercising of Constitutional jurisdiction as held by the Hon’ble Supreme Court in the case of Muhammad Ramzan and 12 others Versus The Member (Revenue), Board of Revenue, Punjab Lahore and 7 others (1994 SCMR 55) as under:- “In exercising its Constitutional jurisdiction the High Court was not acting like a Court of appeal and largely had to see as to whether the orders brought before it for removal through judicial review, suffered from any jurisdictional defect or patent illegality.”

7.The perusal of impugned order dated 14.04.2013, shows that it does not suffer from jurisdictional defect or patent illegality. In any case, the order is of interim in nature and as to the propriety of the impugned interim order or its correctness or otherwise in my humble view ought not to be entertained in Constitutional jurisdiction.

Reliance is placed onBolan bank Limited vs.

Capricorn Enterprise (Pvt,) Ltd. (1999 PSC 128)

Muhammad Zubair and 4 others Versus Muhammad Zameer and 11 others (1999 CLC 2045) and Mst.

AyshaBibiVersus District Judge (PLJ 2006 Lahore

8.In view of above discussion, as the impugned interim order is not without jurisdiction or patently illegal, therefore, it is not a fit case for interference in constitutional jurisdiction of this Court. The result is that the writ petition fails and is hereby dismissed.

(ABID AZIZ SHEIKH)

JUDGE

Approved for reporting.

JUDGE

Ashraf /Raza

Bolan Bank Limited Versus Capricorn Enterprises Limited(1999 PSC128) in the following terms:- “The stand taken by the learned counsel is untenable for more than one reason. The Legislature has not provided any right of appeal against an interlocutory order of the Special Court. It is not understandable as to how the instant appeal is competent” Reference has also been made by Mr. MansoorulArfin to the following observations made in another judgment of this Court in Muhammad Ayub Butt V. Allied Bank Ltd. (PLD 1981 SC 259):-