2015 PLP 1021 (CLC)

ZAFARULLAH KHAN KHAKWANI, J.

This appeal under section 33 of the Punjab Consumer Protection Act, 2005 is directed against the order dated 1-10-2013 passed by the learned District Consumer Court, Bahawalpur whereby applications filed by the appellant for re-calling of orders dated 17-8-2011 and 1-10-2011 have been dismissed being barred by time.

2. Khalid Mian, respondent No.2 filed a petition before the learned District Consumer Court, Bahawalpur on 9-6-2011 with the contention that he handed over a C.D. Cassette of Digital Camera of his marriage to Muhammad Adnan, appellant for mixing with D.V.D. which was returned to him on 7-4-2011 but the same was blank, so the appellant had provided a faulty service as such he be burdened with costs of Rs.2,00,

000. In response to the notice issued by the learned Consumer Court the appellant appeared in Court on 25-6-2011 and was directed to file reply/written statement to the petition. The appellant failed to file the same and rather on subsequent dates absented himself as a result of which the learned Consumer Court vide order dated 17-8-2011 allowed the claim of respondent No. 2 to the extent of Rs.1,00,000 and issued notice to the appellant for 19-9-2011. On the said date again no one put in appearance on behalf of the appellant and the matter was adjourned for 1-10-2011. Since position remained the same as such on 1-10-2011 non-bailable warrants of arrest of the appellant were issued for 14-10-2011. On the said date (14-10-2011) the appellant appeared in Court and made an application (Annexure-E) stating that he appeared in Court on two different dates but on 1-10-2011 he was out of station in connection with his examination and as such could not appear on the said date as a result of which ex parte proceedings were initiated against him. He requested for re-hearing of the matter. Proceedings on the said application remained pending till 10-4-2012 when the appellant submitted another application for setting aside ex parte order dated 17-8-2011 (Annexure-B). Both these applications remained pending for one reason or the other and ended in dismissal vide order dated 1-10-2013. Hence this appeal.

3. Learned counsel for the appellant submits that the applications filed by the appellant were illegally dismissed by the learned Consumer Court without taking into consideration the pleas taken by the appellant that he was appearing in the examination on the date when the matter was fixed before the Court on 1-10-2011 and that the order dated 17-8-2011 was not in his knowledge; that the learned Consumer Court has misconstrued the law by observing that Article 164 of the Limitation Act, 1908 was applicable to the case and the learned Consumer Court wrongly decided the issue of limitation as no limitation is provided in the Punjab Consumer Protection Act, 2005 and in these circumstance Article 181 of the Limitation Act, 1908 was applicable which provides three years limitation for filing the said application.

4. Conversely learned counsel appearing on behalf of respondent No.2 vehemently opposed this appeal with the contention that conduct of the appellant is very much relevant for decision of this appeal; that the learned Presiding Officer discussed all the relevant facts and conduct of the appellant; that provisions of Article 181 of the Limitation Act, 1908 are not attracted rather Article 164 of the said Act is applicable in this case according to which limitation for filing the application was thirty days. Further contends that Rule 14(5) of the Consumer Protection Rules, 2009 is applicable in this case which says that if the defendant fails to appear on the day of hearing, the Court may decide the claim ex parte on the basis of documents available on the record and that as per section 30(5) of the Punjab Consumer Protection Act, 2005 the learned Consumer Court was obliged to decide the applications of the appellant within a period of six months but it took considerable time to decide the application filed by the appellant and that even the provisions of C.P.C. are also not applicable in this case.

5. Arguments of learned counsel for both the parties have been heard and documents attached with this petition perused. From the arguments of learned counsel for the parties the following points appear to be decided: (i) Whether the order dated 17-8-2011 whereby the appellant/defendant was proceeded against ex parte and claim of the claimant was proved, amounts to a decree as defined in section 2(2) of the Civil Procedure Code or comes within the definition of final order and ousted from the definition of decree in view of section 2(2)(a) of the said Code? (ii) Whether the applications filed by the appellant/defendant seeking setting aside the ex parte order/claim are within time or not? and (iii) Whether an application seeking setting aside such order would lie under Order IX, Rule 7, C.P.C. and Article 181 of First Schedule to the Limitation Act, 1908, would be applicable or under Order IX Rule 13 of the C.P.C. and Article 164 of first Schedule of the Limitation Act, 1908 would apply?

6. In order to safeguard the interest of a consumer and to settle disputes between consumer and manufacturer of products or provider of services, the legislature has promulgated the Punjab Consumer Protection Act, 2005. It is obligation of the consumer court to call upon the manufacturer or provider of service that a product or service is defective or faulty and that he should remedy the defects or give damages where the consumer has suffered damage.

7. Section 28 of the Punjab Consumer Protection Act, 2005 provides that a consumer who has suffered damage shall, by written notice, call upon the manufacturer or provider of services that the product or service is defective or faulty. Subsection (3) of this section creates a bar on the consumer court not to entertain a claim unless the consumer has given notice under subsection (1) and provides proof to the court that the notice was duly delivered but the manufacturer or service provider has not responded thereto. Subsection (4) provides limitation to the consumer to file claim within thirty days of the arising of cause of action. However, there is relaxation to this limitation if consumer satisfies the Court that there was sufficient cause for not filing the complaint within the specified period. Section 30 of the Act deals with the procedure to be adopted of complaint. Subsection (1) prescribes the procedure if complaint relates to any products and subsection (2) provides procedure if the claim relates to any services. Since the case in hand necessarily relates to services to consumer as such it would be advantageous to reproduce the said provision of law which runs as under:

"(2) The Consumer Court shall, if the claim relates to any services,

(a) Forward a copy or 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." Perusal of this provision of law shows that the Consumer Court shall forward a copy of the claim to the defendant requiring him to file written statement and on receipt of the same shall proceed to settle the dispute on the basis of evidence produced by the parties and if the defendant does not deny or dispute the allegations or fails to present his case, the dispute shall be settled on the basis of the evidence brought by the claimant.

8. Under section 38 of the Punjab Consumer Protection Act, 2005, Punjab Consumer Protection Rules 2009 have been framed which prescribe procedure to be adopted by the Consumer Court for settlement of disputes. Rule 13 of the said Rules describes about form of claim, precise particulars of claimant, defendant, brief facts giving rise to cause of action etc. necessary documents in support of his claim including notice under section 28(1) of the Act, proof of delivery of notice and reply of the notice, if any. Rule 14 relates to the defence of the case by the defendant. Said rule reads as under:

"Defence etc.

(1) The Court shall follow the procedure contained in section 30 of the Act after the receipt of the claim. (2) If the defendant admits the allegation made by the claimant, the Court shall decide the claim on the basis of the merit of the case and documents available on the record. (3) If during the proceedings conducted under section 30, the Court fixes a date for hearing of the parties, the claimant and defendant or their authorized agents shall appear before the court on such date of hearing or any other date to which hearing is adjourned. (4) If the claimant or his authorized agent fails to appear before the Court on such day the Court may dismiss the claim for default, decide it on merit or adjourn it. (5) If the defendant fails to appear on the day of hearing, the Court may decide the claim ex parte on the basis of documents available on the record or adjourn it. (6) The Court may exercise the powers of a civil court under the Code of Civil Procedure 1908 (V) of 1908) for setting aside an ex parte order or restoration of a claim dismissed in default. (7) The Court may, on the reasonable grounds at any stage, adjourn the hearing of the claim such but not more than one adjournment shall ordinarily be given and the claim should be decided as far as possible within ninety days from the date of notice received by the defendant. As per this Rule if the defendant admits the allegation made by the claimant, the Court shall decide the claim on the basis of the merit of the case and documents available on the record and if during the proceedings the Court fixes a date, the parties are bound to appear before the court on such date. It has been provided that if none appears on behalf of the claimant on such day the Court may dismiss the claim for default, decide it on merit or adjourn it and if the defendant fails to appear, the Court may decide the claim ex parte on the basis of documents available on the record or adjourn it. Sub-Rule (6) enables the Court to exercise the powers of a civil court under the C.P.C. for setting aside an ex parte order or restoration of a claim dismissed in default. Sub-Rule (7) emphasizes that the claim should be decided within ninety days from the date of notice received by the defendant.

9. In response to the notice issued by learned Consumer Court the appellant appeared before the Court in person on 25-6-2011 but thereafter absented himself and the Court exercising powers under proviso to section 30(2)(b) of the Punjab Consumer Protection Act, 2005 read with Rule 14(5) of the Punjab Consumer Protection Rules, 2009, passed ex parte order against the defendant. There is no remedy provided under the Punjab Consumer Protection Act, 2005 before the Consumer Court for setting aside or withdrawal of an ex parte order, however, under Rule 14(6) of the Punjab Consumer Protection Rules, 2009 (supra) discretionary power has been granted to the Court to set aside an ex parte order or restoration of a claim dismissed in default. Section 33 of the Punjab Consumer Protection Act, 2005 relates to appeal against the orders of the Consumer Court. The language of the Section is also relevant and needs to be reproduced here which is as follow:

"

33. Appeal.

Any person aggrieved by any final order of the Consumer Court may file an appeal in the Lahore High Court within 30 days of such order."

10. Perusal of the Punjab Consumer Protection Act, 2005 and the Rules framed thereunder would show that the final order, irrespective of the fact that the same is passed on merits or ex parte, does not amount to decree as defined in section 2(2) of the Civil Procedure Code, 1908. Rather it is an order which has been ousted from the definition of decree by virtue of section 2(2)(a) of the Civil Procedure Code, 1908 which may also be reproduced hereunder:

"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include

(a) Any adjudication from which an appeal lies as an appeal from an order, or (b) Any order of dismissal for default.

11. A combine study of above quoted provisions of law would make it clear that the final orders passed under the Punjab Consumer Protection Act, 2005 are orders which do not come within the definition of "decree". Having reached at this conclusion would makes it easier to understand that provisions relating to decree are not attracted in the cases under the Punjab Consumer Protection Act, 2005.

12. As noted above, the appellant for the first time appeared before the court on 25-6-2011 and he was marked present and the case was adjourned to 8-7-2011 for his written statement. On the subsequent dates he did not appear and the learned Consumer Court passed ex parte order on 17-8-2011 and issued notice to him for 19-9-2011. The appellant did not appear as a result of which warrants of his arrest were issued on 1-10-2011 for 14-10-2011. On the said date (14-10-2011) the appellant entered appearance and filed an application seeking withdrawal of ex parte order on the ground that he was busy in taking examination on 1-10-2011. It would be advantageous to reproduce the order of the learned Consumer Court which is as under:-- The application remained pending before respondent No.1 from 14-10-2011 to 10-4-2012 on which date the appellant submitted another application for setting aside the order dated 17-8-2011. Both these applications remained pending for one reason or the other which were ultimately dismissed on 1-10-2013 being hopelessly time barred.

13. At the cost of repetition it may be mentioned that the learned Consumer court passed ex parte order on 17-8-2011 under Rule 14(5) of the Punjab Consumer Protection Rules, 2009. The provisions of Code of Civil Procedure, 1908 are not applicable to the proceedings of the Consumer Court stricto sensu, but Rule 14(6) of the Rules (supra) empowers the court to re-call/set aside an ex parte order and for this purpose it may exercise powers of a civil court under the Code of Civil Procedure. This provision clearly suggests that for setting aside ex parte order of the Consumer Court the provisions of Code of Civil Procedure, 1908 would be applicable.

14. There are two provisions in the Code of Civil Procedure, 1908 dealing with ex parte matters. First, Order IX, Rule 7 of the Code which deals with ex parte orders and second under Order IX, Rule 13 which relates to ex parte decree. It would be beneficial to reproduce both the provisions hereunder. Rule 7 of Order IX runs as under: "

7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.

Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." Rule 13 of Order IX reads as under:

"

13. Setting aside decree ex parte against defendant.

(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that . : Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. (2) The provisions of section 5 of the Limitation Act, 1908, (IX of 1908) shall apply to applications under sub-rule (1)."

15. A careful examination of the above quoted provisions of law would reveal that no specific period of limitation has been provided for making an application under Order IX, Rule 7 whereas section 5 of the Limitation Act, 1908, has been made applicable to the applications under Order IX, Rule 13, C.P.C. Now question arises as to what is the limitation to apply for withdrawal of ex parte order. To my mind the provisions of Article 181 of the First Schedule of the Limitation Act, 1908, would come to rescue this situation. The said Article provides as under: 181.- Application for which no period of limitation is provided else wherein this schedule or by section 48 of the Code of Civil. Procedure, 1908. Three years When the right to apply accrues However, the learned Consumer Court held that Article 164 of the said Schedule to the Limitation Act, 1908 is applicable in this case. The said finding of the learned Consumer Court is misconceived. A bare perusal of the said provision would show that the same relates to a decree passed ex parte. The said Article is as under:--

164. By a defendant, for an order to set aside a decree passed ex parte. Thirty days The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree. It would not be out of place to mention here that by virtue of addition of proviso (2) to Order IX Rule 13 through Code of Civil Procedure (Amendment) Ordinance, 1980 (Ordinance X of 1980) quoted above, application of Article 164 of the Limitation Act, 1908 to the cases under Order IX Rule 13 has been ousted and Section 5 of the Limitation Act, 1908, has been made applicable to the proceedings under said provision of law.

16. The net result of above discussions of the provisions of law and observations made thereon is that:

(i) the order dated 17-8-2011 passed by learned District Consumer Court, Bahawalpur whereby the appellant was proceeded against ex parte and claim of Khalid Mian, respondent was proved, was not a "decree" within the meanings of Section 2(2) of the Code of Civil Procedure, 1908 and was a final order appealable under section 33 of the Punjab Consumer Protection Act, 2005 and ousted from the definition of decree by section 2(2)(a) of the Code of Civil Procedure, 1908. (ii) An application to set aside the ex parte order of the Consumer Court would lie under Order IX, Rule 7, C.P.C. and provisions of Order IX, Rule 13, C.P.C. would not attract to the same. (iii) Since the ex parte order dated 17-8-2011 was not a decree as such period of limitation for filing application for setting aside/withdrawal of same provided under Article 181 of the Limitation Act, 1908 would be applicable and provisions of section 5 or Article 164 of the said Act would not attract.

17. Resultantly, this appeal is accepted and the impugned order dated 1-10-2013 passed by the learned Consumer Court is set aside being misconceived and not tenable in the eyes of law. The applications of the appellant are accepted being not barred by limitation and the order dated 17-8-2011 is set aside subject to payment of costs of Rs.2000 to be paid by the appellant and the case is remanded back to the learned District. Consumer Court, Bahawalpur where the complaint filed by respondent No.2 shall be deemed to be pending and decided before 31-12-2014. The parties are directed to appear before the learned Consumer Court on 27-10-2014 and the learned Consumer Court shall decide the matter before 31-12-2014. MH/M-401/L Case remanded.