PLJ 2023 Lahore (Note) 60
Present: Shahid Bilal Hassan, J.
FAYYAZ HUSSAIN BUTT--Appellant
versus
SONY CORPORATION and others--Respondents
F.A.O. No. 107 of 2015, decided on 27.10.2015.
Punjab Consumer Protection Act, 2005 (II of 2005)--
----Ss. 25 & 35--Filing of complaint--Dismissed for non-prosecution--Complaint was fixed for written reply of application submitted by respondent’s side--Application for restoration of complaint was declined--Interlocutory matter--Main case was not fixed for hearing when complaint was dismissed--Case was being adjourned for submission of reply of an application which is an interlocutory matter and it can safely be said that on date when impugned order was passed, dismissing complaint of appellant, main case was not fixed for hearing, rather case was fixed for hearing of an interlocutory application--It is by now a settled principle of law that main case of a person cannot be dismissed on account of non prosecution, if main case is not fixed for hearing--Courts have always encouraged and vigilantly safeguarded verdicts between parties on merits except in exceptional cases--Impugned orders of Court below being arbitrary and against mandate of law cannot hold field, as same suffer from material illegality and irregularity--Appeal allowed. [Para 6, 8] A, B, C & D
1992 SCMR 707, 2012 SCMR 656, PLD 1991 SC 1104 &
1997 CLC 1080 ref.
M/s. Sheikh Muhammad Umar & Fayyaz Haleem Butt, Advocates for Appellants.
Syed Adeel Abbas, Advocate for Respondents.
Date of hearing: 27.10.2015.
Judgment
Orders dated 22.01.2014 and 06.02.2015 passed by the learned Presiding Officer District Consumer Court, Lahore have been called into question by the appellant through the instant appeal, whereby the complaint of the appellant under Section 25 of the Punjab Consumer Protection Act, 2005 was dismissed for non prosecution and application for restoration of the said complaint was also declined through the impugned orders respectively.
2. Factually speaking, the appellant filed a complaint under Section 25 of the Punjab Consumer Protection Act, 2005 against the respondents before the learned Judge Consumer Court at Lahore on 20.09.2012. While entertaining the said complaint, notices were issued to the respondents, who appeared and defended the complaint. During the course of proceedings, an application under Section 35 of the Punjab Consumer Protection Act, 2005 was filed by the respondents’ side on 03.10.2013. While entertaining the said application, the appellant was directed to file written reply to the same. On 16.12.2013, the complaint was adjourned for filing of reply to the application by the appellant side for 22.01.2014, on which date the appellant’s complaint was dismissed for non prosecution. On 21.02.2014, an application for restoration was filed by the appellant before the said learned Court, which was dismissed on 06.02.2015. Both the orders have been called into question through the instant appeal.
3. Learned counsel for the appellant has submitted that both the impugned orders passed by the learned consumer Court are against law and facts of the appellant’s case; that the impugned orders have been passed against the appellant without perusal of the record and are totally contrary to the settled provision of law on the subject; that the case was fixed for submission of reply to the application filed by the respondents’ side and resultantly proceedings in this regard cannot be termed as date of hearing, therefore, the impugned order dismissing the complaint of the appellant is without jurisdiction; that the order of the dismissal of the appellant’s application is also nullity in the eyes of law. Lastly prays for acceptance of this appeal and restoration of appellant’s complaint for a verdict on merits.
4. On the contrary, learned counsel for the respondents while supporting the impugned orders, has prayed for dismissal of this application. Relies on “Muhammad Siddique and 2 others vs. Khan Amir and another” (2010 MLD 674).
5. Heard.
6. Admittedly, on 22.01.2014, the complaint of the appellant was fixed for submission of written reply to the application under Section 35 of the Punjab Consumer Protection Act 2005, filed by the respondents’ side. On the said date, since no body appeared from the appellant’s side, so, the complaint was dismissed for non prosecution. According to the record made available, application under Section 35 of the Punjab Consumer Protection Act, 2005 was filed by the respondents’ side on 03.10.2013 and the case was adjourned for reply to the said application for 24.10.2013. On 24.10.2013, the complaint was adjourned to 27.11.2013, on which date lawyers were on strike and the case was adjourned to 16.12.2013. On 16.12.2013, on the request of clerk of the counsel of appellant, the complaint was adjourned for submission of written reply on behalf of the appellant complainant for 22.01.2014, on which date the complaint of the appellant was dismissed for non prosecution. A perusal of the order sheet made available shows that the case was being adjourned for submission of reply of an application which is an interlocutory matter and it can safely be said that on the date when the impugned order was passed, dismissing the complaint of the appellant, the main case was not fixed for hearing, rather the case was fixed for hearing of an interlocutory application i.e. application under Section 35 of the Punjab Consumer Protection Act, 2005. It is by now a settled principle of law that the main suit/case of a person cannot be dismissed on account of non prosecution, if the main case is not fixed for hearing. Hearing of a case does not include an interlocutory application and even otherwise for the sake of arguments filing of written statement/written reply, as well. In addition to this, findings arrived at by the learned Court on the application cannot find support from this Court, as the application of the appellant was within limitation and a sufficient ground was taken up by the appellant, which was not considered by the learned Court within the parameters of settled law on the subject. The Courts have always encouraged and vigilantly safeguarded verdicts between the parties on merits except in exceptional cases. Guidance in this regard is taken from “Hashim Khan. vs. National Bank of Pakistan” (1992 SCMR 707), “Mst. Suraya Parveen. vs. Mst. Rukhsana Hanif and others” (2012 SCMR 656), “Muhammad Hussain. vs. Allah Dad and 13 others” (PLD 1991 Supreme Court 1104) and “Muhammad Afzal vs. Small Business Finance Corporation and 4 others” (1997 CLC 1080).
7. With utmost respect, the case law referred to by the learned counsel for the respondents is of no help to him in the peculiar and given circumstances of this case.
8. In light of what has been stated above, the impugned orders of the learned Court below being arbitrary and against the mandate of law cannot hold field, as the same suffer from material illegality and irregularity. Resultantly, this appeal is allowed and the orders dated 22.01.2014 & 06.02.2015 passed by the learned Court are set aside and reversed and complaint of the appellant shall be deemed to be pending, which shall be decided by the learned consumer Court strictly in accordance with law on merits. No order as to costs.
(Y.A.) Appeal allowed
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