Muhammad Mansha vs Shahid Rana etc.

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

FAO No.133/2013 Muhammad Mansha Vs Shahid Rana, Regional Manager OCS etc.

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding

13.4.2015 Mr. Fakhar Raza Malana, Advocate on behalf of the appellant.

Malik Muhammad Riaz Khokhar, Advocate on behalf of respondent No.5.

Through this appeal, the appellant/complainant has challenged the order dated 24.5.2013 whereby the complaint under Section 25 of the Punjab Consumer Protection Act, 2005, filed by the appellant/complainant, was dismissed by the learned Presiding Officer, District Consumer Court, Multan camp at Khanewal.

2.Brief facts of the case are that the appellant/complainant booked a parcel containing one carton of wedding cards, one ladies suit, one vickey quilt, two pairs of gents shoes, five gents suits, two ladies cloth arms and thirteen flower bundles from LOGEX Mian Channu for Manchester, UK vide Receipt No.092000009889 against a payment of Rs.35,450/- through the respondents but despite expiry of twelve days, the said parcel could not be delivered whereupon the complainant made contact with respondent No.5 and enquired from him about the same, who told that due to increase in excise duty, he would have to pay more 260 £ (British Pounds), which were paid and even then the said parcel was not delivered at the given address of U.K. Hence, the appellant/complainant sent a legal notice but the respondents did not give any reply to the same, so, the

appellant/complainant filed a complaint under Section 25 of the Punjab Consumer Protection Act, 2005 (here-in-after to be called as Act) before the learned Presiding Officer, District Consumer Court, Multan camp at Khanewal. The respondents contested the said complaint by fling written statement and denied the contents of the complaint but later on they did not appear before the learned trial Court, so, they were proceeded against ex-parte vide order dated 16.11.2012 and the appellant/complainant was directed to produce ex- parte proof in support of his claim. On 10.12.2012, the respondents filed an application for setting aside the ex-parte proceeding order, which was accepted by the learned trial Court on the basis of no objection from the side of the appellant/ complainant vide order dated 12.2.2013 with cost of Rs.1000/- Again the respondents were proceeded against ex-parte vide order dated 15.4.2013 and thereafter on 26.4.2013 and 3.5.2013, the learned trial Court received ex-parte proof of the complainant in the shape of documentary evidence and dismissed the complaint vide order dated 24.5.2013 on the sole ground that the claim is time barred. Hence, this FAO.

3.It has been contended on behalf of the

appellant/complainant that under Section 28(4) of the Act, the limitation for filing the claim is one year; that the question of limitation is a mix question of law and facts but the learned trial Court dismissed the complaint of the appellant/complaint in hasty manner and non-suited him on the sole ground of limitation; and that the learned trial Court has not discussed/considered the evidence produced by the appellant/complainant particularly when no evidence

was available in-rebuttal from the side of the respondents, as such, the impugned order is liable to be set aside.

4.On the other hand, the learned counsel for respondent No.5 has supported the impugned order by contending that the appellant/complainant filed the complaint after expiry of stipulated period, hence, the same was rightly dismissed being hopelessly barred by time.

5.Heard. Record perused.

6.It is an admitted fact that on 12.3.2012, the appellant/complainant booked a parcel from Logex Mian Channu for Manchester, U.K. on payment of all the dues so demanded by the respondents but the said parcel was not delivered to the addressee within the stipulated period whereupon he made contact with respondent No.5 who demanded payment of more 260 £ which were accordingly paid on 22.3.2012 but despite lapse of about twenty three days, the shipment could not be reached at its destination, whereupon the appellant/complainant submitted an application (Exh.P-3) before respondent No.5 on 5.4.2012 who by admitting the booking of the parcel as well as payment of Rs.35450/- & 260 £ sought necessary information about the said shipment from respondent No.4 vide letter dated 5.4.2012 (Exh.p-4) but no positive response was given by the said respondent. Therefore, the appellant/complainant served a legal notice to the respondents on 11.4.2012 requiring them as under: - “For that reason through this notice informing you within 15-days the luggage of above detailed value of Rs.2,68,000/- of my client handed over/deliver at given address in England. In non-delivery of luggage in stipulated period a suit of recovery of damages of Rs.25,00,000/- recovery of amount (price) of luggage and expenses as damages to paid your office delivery and fee

of counsel will be also recovered from you through Court”

Despite sending the legal notice, no response was given by the respondents, which forced the appellant/complainant to file the complaint under Section 25 of the Act on 2.5.2012 i.e. twenty-one days after issuance of the legal notice, meaning thereby that the appellant/complainant had filed the complaint within time as provided under Section 28 (4) of the Act. Whereas, the learned Presiding Officer of the Court has erroneously and illegally dismissed the complaint while observing as under: -

“The claimant transmitted legal notices to the defendants on 11.04.2012 and then he opted to file the instant claim on 2.5.2013. The claim of the claimant is time barred as envisaged and contemplated in Section 28 (4) of Punjab Consumer Protection Act, 2005. With this claim, the claimant has not moved any application for condonation of delay. The claim of the claimant is hopelessly and patently time-barred from the date of accruing of cause of action”

In view of the above facts and circumstances, it is crystal clear that the impugned order dated 24.5.2013, on the face of it, is perverse, erroneous and illegal. It also reflects that the learned Presiding Officer has not carefully scanned/scrutinized the evidence and record of the case as well as has not applied his judicious mind which resulted into serious illegality and grave miscarriage of justice and violative to the principle of dispensation of justice as it increased the agonies of the appellant/complainant who, due to in-actions of the respondents, again purchased the above said articles and sent the same through another courier service by incurring/spending a huge amount.

Similarly, the learned Presiding Officer while passing the impugned order has relied upon the case law reported in 2006 SCMR 778 PLD

2003 SC 628 and 1999 SCMR 2353 but the same are not applicable to the case in hand as these cases have their own distinguishable features and proceeded on different facts than that of instant case.

Even otherwise, it is a settled principle of law that question of limitation is a mix question of law and facts and the same cannot be resolved without recording the evidence of the parties but the learned trial Court while passing the impugned order has not followed the procedure of recording the evidence in terms of Section 30 (3) of the Act whereas it was the duty of the Court to record the evidence of the parties and then decide the matter as per the law. For the facility of ready reference, Section 30 (3) of the Act, is reproduced as under: -

30.Procedure on receipt of complaint.– (1) The Consumer Court shall, on receipt of a claim if it relates to any products,–

(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 his 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 specified 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 affidavits;

(d)issuing of any commission for the examination of any witness; and

(e)any other matter which may be prescribed.

Whereas, the same is lacking in the instant case, as such, the learned trial Court has passed an illegal order without adopting the procedure as prescribed in the Act. Under the law, it was the duty of the Court to perform the acts/pass the orders within the parameters of the Act.

7.In view of the above, the instant appeal is accepted and the impugned order dated 24.5.2013 is set aside and the complaint filed by the appellant/complainant will be deemed to be pending before the learned Presiding Officer, District Consumer Court, Multan, camp at Khanewal, who is directed to decide the same afresh strictly on merits and in accordance with law within a period of one month positively. The parties are directed to appear before the said Court, on 24.4.2015.

(Ch. Muhammad Iqbal) Judge Naeem Approved for reporting.

Judge