Muhammad Younas Qureshi vs M/S Fed Ex/Gerry's International etc.

Stereo HCJ DA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

F.A.O No. 18 of 2013

Muhammad Younas Qureshi V/S M/S FedEX/Gerry’s International and another.

JUDGMENT

Date of hearing 31.05.2021 Appellant(s) by Mr. Nadeem Ahmad Shah, Advocate.

Respondent(s) by Ch. Bilal Raza, Advocate.

Sultan Tanvir Ahmad, J. This appeal under Section 33 of the Punjab Consumer Protection Act, 2005 (“the Act”) is directed against order dated 17.01.2013 passed by learned Judge Consumer Court, Rawalpindi. The claim under Section 25 of the Act was filed on 22.11.2012 alleging that services of respondent No.1 were hired against valuable consideration for delivery of parcel under invoices No. 7981, 1442 and 5193; the parcel was required to be delivered to the claimant which was not received; considerable delay was caused by the respondent; at belated stage it was informed that the parcel was forfeited by the authorities and the respondent also failed to provide the classification order despite repeated requests. This practice is alleged to be unfair and below all the standards. The claim was contested by filing written statement whereby various objections including objections as to maintainability, locus

standi, non-disclosure of cause of action and estoppel were taken.

2.Mr. Nadeem Ahmad Shah, learned counsel for the Appellant has submitted that the suit has been dismissed on the basis of principle of estoppels without recording of evidence or framing the issues. Further, stated that the delay in the delivery of parcel as well as withholding of information caused damage and agony. The practice is much lower than the standard required from any service provider of equal category. Added, that the impugned order is based on surmises and conjectures; the procedure adopted is in violation of article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and learned trial court has shown unnecessary haste by adopting summary procedure.

3.Conversely, Ch. Bilal Raza, learned counsel for the respondent has supported the impugned order while relying upon letter dated 05.07.2012. The learned counsel has argued that the said letter is deemed to be a representation on the basis of which the services of the respondent were withdrawn and the learned trial court has rightly applied the principle of estoppel.

4.Arguments heard and with the proficient assistance of the learned counsel of the parties record has been perused.

5.Reading of the impugned judgment reflects that dominant factor leading to the dismissal of the suit is the application of principle of estoppel based upon letter dated 05.07.2012 while ignoring that in order to attract the principle of estoppel, three conditions are required to be established; (i) a representation by a person to another, (2) the other should have acted upon that representation, and (3) such action should have been detrimental to the interests of the person to whom the

representation has been made. Even if one of the conditions is not satisfied the doctrine cannot be applied.

6.Learned Trial Court remained overwhelmed by the first condition while discussing the aforesaid doctrine and hardly any debate has taken place on the remaining two conditions, as visibly reflected from the impugned judgment. Petitioner has admitted before the learned Trial Court as well as today while arguing the case that the letter dated 05.07.2012 was written which is akin to admission of the first condition of the promissory estoppel. However, he has stated that the faulty services and undue delay led to withdrawing the services of the respondent, by writing the aforesaid letter. The fulfillment of the remaining two conditions of the estoppel have been denied and disputed.

7.The party which seeks to take shelter of the principle of estoppel has to establish the aforesaid three conditions, simultaneously. Reliance is placed on case titled MOOSA BHUNJI (THROUGH LEGAL HEIRS) versus HASHWANI

SALES & SERV ICES LTD. AND ANOTHER (PLD 1982

Karachi 940) and M. AND A. ASSOCIATES V. TELERAD

LTD. (AIR 1969 BOMBAY 323 (V 56 C 51).

The relevant extract from MOOSA BHUNJI case (supra) is as follows:- In order to attract the principle of estoppel it is necessary to establish that the party sought to be estopped has by his declaration, act or omission made representation thereby causing or permitting another person to believe a thing to be true who upon this belief has acted upon it or altered his position. Therefore in order to press in service the principles of estoppel the aforesaid ingredients should be satisfied.

8.The two parties have taken opposite stance and denied the allegations of each other. Nonetheless, the impugned judgment has been passed without giving opportunity to the parties to lead the evidence or providing chance to establish their respective allegations. Adopting summary procedure, in the given circumstances of the case, is contrary to settled law. In case titled KHARATI AND OHERS versus MUHAMMAD IBRAHIM AND OTHERS (1989 C L C 894) this Court has already decided that to uphold the plea of estoppel or waiver, the evidence of highest order is required. The august Supreme Court of Pakistan in case of JAM PARI versus MUHAMMAD ABDULLAH (1992 S C M R 786) and BAQRI AND 4 OTHERS versus SALEHON AND 3 OTHERS (P L D 1972 Supreme Court 133) treated estoppel as foundation of waiver and decided that waiver being question of fact has to be decided on proof of such fact by evidence. Relevant extract of Paragraph No.5 of the judgment in JAM PARI case supra is as follows:- “......As stated earlier, waiver being a question of fact has got to be decided on proof of such fact by the evidence in each case. Relinquishment of right is not to be inferred readily and there should be positive evidence to induce the Court to hold that the respondent intentionally wanted to forego his right.....”

9.The Hon’ble Supreme Court (AJ&K) in case titled AZAD

GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR,

MUZAFFARABAD versus Brig. (Retd.) MUHAMMAD ASLAM KHAN (1990 M L D 2333) has also confirmed that the question of estoppel is mixed question of law and fact.

10.Section 30(2) of the Act provides the procedure required to be adopted on receipt of the claim relating to services which is as follows:-

(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.

(Emphasis supplied)

11.An analysis of the aforementioned reflects that once written statement is filed the learned Consumer Court has to proceed to settle the dispute on the basis of evidence of the parties. The summary procedure is attracted if allegations are not denied or in case of failure of the defendant to present the case within stipulated time. In the instant case disputes have been raised which are required to be resolved by the following procedure laid down in Section 30(2)(b) of the Act. The decision of the learned Trial Court, without recording the evidence, on the contrary stances taken by the parties and application of principle of estoppel is against the law.

12.In view of the above, this appeal is allowed, the order dated 17.01.2013 passed by learned Consumer Court, Rawalpindi is set-aside and the case is remanded to learned Consumer Court, Rawalpindi with the direction to decide the case, after providing opportunity of evidence to the parties,

within two months from the date of receipt of certified copy of this judgment.

(SULTAN TANVIR AHMAD)

JUDGE

APPROVED FOR REPORTING

Iqbal* JUDGE