1. This order intends to dispose of an application for deleting/striking of the name of defendant No. 1 for its exemption for filing written statement in claim titled Muhammad Ali Vs. Regional Officer Nia Swera and three others.
2. The learned counsel for the petitioner (Nia Sweera) contended that the claimant Muhammad Ali had neither purchased the seeds from the defendant No. 1 nor any other kind of transaction was done with it, therefore, its name is liable to be deleted.
3. Learned counsel for the claimant argued that the defendant No. 2 to 4 were acting as agent of the defendant No. 1 therefore, it was necessary party in the case to arrive at a fair and just conclusion.
4. The pleadings of the parties were perused with the assistance of counsel for the parties.
5. Muhammad Ali, claimant filed a claim for recovery of 7, 26,000/- as loss sustained by him and Rs.
6. 5,00,000/- as damages against Regional Officer Nia Swera Syngenta Pakistan, and three others.
7. The claimant mentioned in the body of the claim that he had purchased maize seeds from the defendant No. 2 to 4 i.e Zahid Rashid, Sajid Bhatti and Moulvi Sharafat. He sowed it but due to bad germination, requisite results could not be achieved. He repeatedly contacted with the defendant No. 2 to 4 to redress his grievances but no attention was paid to it.
8. The defendant No. 2 to 4 admitted in their written statement that the claimant had purchased maize seeds from them. However, they raised certain other preliminary objections and also disputed with facts mentioned in the claim.
9. A careful scrutiny of the contents of application filed by the defendant No. 1, claim instituted by the claimant Muhammad Ali, written statement filed on record on behalf of the defendants No. 2 to 4 would make it clear that claimant had purchased maize seeds from the defendant No. 2 to 4. It was no where mentioned in the claim that the defendant No. 2 to 4 had ever acted as agent on behalf of the defendant No. 1 or defendant No. 1 had sold maize seeds to the claimant through the said defendant No. 2 to 4. It being so, it can be inferred that the claimant had not purchased seeds directly from the defendant No. 1 or that the defendant No. 2 to 4 had sold seeds to the claimant on behalf of the defendant No. 1. Therefore, the defendant No. 1 was neither a necessary nor proper party in the case. Consequently, the name of defendant No. 1 is deleted from the array of defendants.
10. To come up 10-05-12 for arguments on application for condonation of delay, pretrial settlement of the dispute and preliminary argument.
11. Announced. 03-05-12 Present. Learned counsel for the claimant.
12. Learned counsel for the defendants.
13. This order shall dispose of an application filed U/S 5 of Limitation Act in a claim for recovery of 7, 26,000/- and Rs. 5, 00,000/- as damages against the defendants Zahid Rashid etc. The learned counsel for the claimant submitted that the claim filed by Muhammad Ali against the defendants Zahid Rashid etc was within time as the same had been filed within 01 year of accrual of cause of action. He also contended that after issuance of legal notice on 13-02-11 (correct date of issuance of legal notice is 13-09-11) Ex Secretary General District Bar Association, Sahiwal Mr. Qasim Bashir Advocate contacted the claimant and persuaded him not to file claim with assurance that he would get the matter resolved. Therefore, as per his assertions, the delay, if any, in filing the claim, was liable to be condoned. Claimant in support of his version referred 2011CLC 959 Peshawar, 2011 MLD 156 Lahore, 2011 CLC 1473 Peshawar, 2011 CLC 355 Peshawar, 2010 SCM R 973 and 2011 M LD 266 Karachi.
14. The learned counsel for the defendants contended that the limitation of filing the claim within 01 year, would apply where no warranty/guarantee of any product is given and the maize seeds purchased by the claimant, did not fall under the definition of product. Therefore, the limitation in the instant case would be 30 days from accrual of cause of action. He also argued that the story of contact by Mr. Qasim Bashir Advocate, was concocted and claim being barred by time, should out-rightly be rejected.
15. Briefly stated facts of the case are that the claimant Muhammad Ali purchased maize seeds from the defendant's No. 2 to 4 M/s Zahid Rashid etc on 02-07-11 alongwith pesticides. He sowed the maize seeds, applied sprays and adopted all precautionary measures but despite all efforts made, he could not get the desired results. He had to incur Rs. 7, 26,000/- on sowing maize crop. The claimant alleged that the maize seeds were defective and substandard. Therefore, its germination was poor. The claimant claimed that he was entitled to get Rs.7,26,000/- as actual expenses and Rs. 5,00,000/- as damages for mental tension etc. Plication moved by defendant No. 1, its name was deleted vide order dated 03-05-11.
16. The defendant's No. 2 to 4 resisted the claim and denied the allegations leveled by the claimant.
17. According to them, the claim was time barred. They further submitted that the poor germination of maize seeds and crop was due to faults on the part of the claimant.
18. At the outset, it is made clear that no application for condonation of delay was filed when the claim was instituted. However, on 13-02-12 the claimant filed an application for condonation of delay. The defendants filed its reply thereafter the arguments were heard.
19. Needless to mention that Consumer Protection Act 2005 is a special law. Neither civil law nor Qanoon-e. Shahadat is applicable to the cases filed before consumer courts constituted under the Punjab Consumer Protection Act 2005.
20. The learned counsel for the claimant, during his arguments, referred the aforementioned reported cases of Honourable Superior Courts. In all the above said cases, salutary guidelines have been provided on the point of condonation of delay with remarks that law desires disposal of matters on merits instead of technicalities. Technicalities should not hamper the course of justice and powers regarding condonation should be liberally exercised to ensure good administration of justice in its true spirit. Following these precedents/principles laid down, the matter of condonation of delay shall be considered, taken into account and disposed of within preview of section 28 of the Punjab Consumer protection Act 2005.
21. Primarily, as per Section 28 of the Punjab Consumer protection Act 2005, the limitation for filing of claim is 30 days from the date of accrual of cause of action. However, the limitation may be extended but on sufficient causes shown. But this limitation may not be extended beyond 60 days.
22. The last proviso of Section 28 of the said Act would show that if no warranty or guarantee of nay product or service provider is fixed, then the period was provided for one year from the date of purchase of the product or providing of services. The case of the claimant attracts the factum of purchase of product i.e. Maize seeds. The term product is defined in section 2 (j) which is reproduced below for convenience.
23. "Product" has the same meaning as assigned to the word "goods" in the subsequently incorporated in the another product or an immoveable but does not include animals or plants or natural fruits and other raw products in their natural state that are derived from animals or plants.
24. There is no dispute or any other argument that maize product is a material drawn from plants.
25. Therefore the maize seeds do not fall within the definition of product. It being so, the case of the claimant would not attract the last proviso of section 28 of the Punjab Consumer Protection Act 2005.
26. Primarily, the limitation for filing any claim against the manufacturer or service provider is 30 days.
27. The claimant purchased maize seeds on 02-07-11. Admittedly the maize crop is a seasonal crop spreading over 04 months only. Obviously, the seeds purchased on 02-07-11 were sown immediately thereafter. This fact finds support from other contents of the claim wherein it is mentioned that findings germination poor, concerned Agricultural Authorizes were requested to inspect the field crop which reported that the germination was 20 to 30 %. However, other factors on the part of the claimant, also contributed to poor crop. All this process was completed in the month of October. When the claimant realized that due to alleged substandard and poor seed quality, his crop was not giving good results, he issued legal notice to the defendants on 13-09-11 through receipt dated 14-09-11. Under the law, the claimant had to wait for 15 days for reply. It being so, the claimant was supposed to wait till 29-09-11. From the said date i.e. 29-09-11, the period of 30 days commenced which ended on 29-10-11. The date i.e. 29-10-11 was the last date when the claimant could file the claim whereas it was filed on 26-01-12. It therefore can be said that the claim was barred by time. In application for condonation of delay, the claimant mentioned that after issuance of notice on 14-09-11, the defendants had contacted the claimant through Ex- General Secretary Sahiwal Bar Association who persuaded not to file claim with assurance that the matter would be got settled out side the court and on such assurance, the claimant was not filed the claim within stipulated time. It may be reiteration but the fact was that the ground taken for condonation of delay as mentioned in application was not mentioned in the main claim. Therefore, the alleged fact of contact of Ex-General Secretary Sahiwal Bar Association with the claimant was afterthought. Therefore, it cannot be paid any significance. The claimant has failed to give any reasonable cause persuading this court to extent the period of limitation. The claim is therefore held to be barred by time. The application for condonation of delay and the main claim both are hereby dismissed, leaving the parties to bear their on costs.
28. File be consigned after its due completion.