2014 PLP 154 (CLC)

IBAD-UR-REHMAN LODHI, J.

By means of this judgment I intend to dispose of F.A.O. No.89 of 2009 and F.A.O. No.69 of 2009, as both arises out of one impugned order dated 8-7-2009 passed by the learned Presiding Officer, District Consumer Court, Sahiwal whereby the claim of Muhammad Aslam for recovery of Rs.2,50,00,000/- was accepted to the extent of provisions of 250 bags of seed of maize to said claimant.

2. Both the sides feeling themselves aggrieved of the said findings filed separate appeals. I would first take up F.A.O. No.89 of 2009 for the reasons that the same was filed beyond limitation and along with the memo of appeal Civil Miscellaneous No.1-C of 2009 was also filed, seeking condonation of delay in filing the instant appeal. In the application under section 5 of Limitation Act, the applicant/appellant has admitted that the appeal was filed beyond limitation provided in this regard. The reason as has been expressed in the Civil Miscellaneous is that the respondent-Pioneer Pakistan Seed Limited, after the decision of the Consumer Court, approached the applicant/appellant for some settlement and promised that the appellant shall be compensated by providing 250 bags of seed of maize and thus deceived the applicant/appellant and let the limitation period expired and for that reason the appeal was filed on behalf of the claimant Muhammad Aslam beyond limitation.

3. I am afraid, the explanation extended by the applicant/appellant in order to seek condonation of delay caused in filing of appeal does not appeal to sense and such plea has never been recognized as a justification for condoning the delay in filing some legal proceedings. The applicant has failed to justify the delayed filing of appeal and the application i.e. Civil Miscellaneous No.1-C of 2009 has no substance, the same is therefore dismissed.

4. Since the delay caused in filing of F.A.O. No.89 of 2009 has not been condoned, resultantly the said appeal is dismissed.

5. Now comes to the other appeal viz. F.A.O. No.69 of 2009 filed by the Pioneer Pakistan Seed Limited, etc. There is an objection with regard to a time-barred claim preferred by claimant before the Consumer Court and also to the effect that the same was not maintainable in absence of any evidence as to the issuance of notice and the proof of its duly delivery by the claimant to the respondent-service provider required in view of section 28(3 ) of the Punjab Consumer Protection Act, 2005. Vide para 4 of the claim, the claimant has, in a vague term, mentioned the issuance of some notices, but neither any date of issuance of the same has been provided in the claim nor any proof of its due delivery has been provided. Along with the claim, a copy of notice although has been placed on the record of the Consumer Court but the same is not worth-consideration for the reason that the same carries .no signature of the person issuing the same nor the claimant has placed any material on record to show the due delivery of the same which is a condition precedent for maintaining a claim before the Consumer Court.

6. In view of section 28(4) of the Punjab Consumer Protection Act, 2005, a claim by a consumer has to be filed within 30-days of arising cause of action. In this case, according to the version of the claimant himself, the seed of maize was purchased on 11-12-2007 and the seed was used in the month of June, 2008 but the claim was instituted before the Consumer Court on 7-10-2008 and the notice shown to have been issued only on 21-9-2008. The starting point of period of limitation provided for filing of claim before the Consumer Court is the accrual of cause of action and if in particular background of this case, the cause of action was accrued to the claimant in the month of June, 2008 when the crop was harvested, the institution of the claim before the Consumer Court was in any case beyond limitation.

7. On merits, it is admitted position that the seed was never purchased directly through the company i.e. Pioneer Pakistan Seed Limited, rather it was purchased from respondent No.2, a Dealer, deals in sale of the seeds in open market. According to law, on the subject without any certificate issued by Federal Seed Certification and Administration Department (under the Federal Government) certifying the quality of seed, no seed can be launched in the market. The claimant has nowhere raised his plea as to whether the seed purchased by the claimant was not certified under such process. Admittedly, 250 bags of maize seed were purchased by the claimant from respondent No.2 and out of the same, 248 bags were consumed and used by the claimant and subsequently challenged the quality of whole of the purchased lot only by producing two bags and that too without any proper seal over the same, thus it was not certain that either the said bags contained the seed were in fact originally filled by the company or after de-sealing the same by the claimant, those were refilled by some substandard seeds by the claimant to create a circumstance to justify the claim. The claimant has also miserably failed to bring any convincing evidence on record to show that the seed in the sealed bags of the company was in fact substandard one. Merely by saying of the claimant it cannot be presumed that the quality of seed was not up to the mark for the reason that the claimant is not an expert in the relevant field.

8. The appellants in their written statement have highlighted numerous reasons for less production e.g. poor or inadequate fertilizer, no timely plant protection measure, uneven land used for cultivation, retorted plant growth, no proper and timely watering and unfavourable weather conditions. Once such specific pleas were taken it was incumbent upon the claimant to put his own stance in reaction thereof but these reservations expressed by the appellant-Company were never responded to in some satisfactory manner.

9. There is another angle to be considered in ordinary suits where the plaintiff claims some recovery in shape of the finances, it always make incumbent upon such claimant/plaintiff to provide detailed breakup of the required amount but in the present case although an huge amount of Rs.2,50,00,000/- has been claimed but without any specific breakup of the said required amount. The Consumer Court has in fact not accepted the request of the claimant for recovery of Rs.2,50,00,000/- but has awarded the claim to the extent of the provision of 250 bags of seed of maize. Such claim was not proved on record by the claimant. There is no report on the record as to what was the result of growing of seed of maize consisting of 248 bags and without any convincing evidence having negative impact even for such 248 bags, no adverse inference can be drawn against the appellants. The result is that the claim as has been placed by the claimant before the learned Consumer Court was beyond limitation as provided in section 28 of the Punjab Consumer Protection Act, 2005 and also is not maintainable in absence of a mandatory notice delivery of which is to be proved beyond any shadow of doubt and also on merits, therefore, F.A.O. No.69 of 2009 is allowed and the impugned order passed on 8-7-2009 by the learned Presiding Officer, District Consumer Court, Sahiwal is set aside.

10. Before parting with this judgment, I would like to observe that not only with regard to the claims to be preferred before the Consumer Courts, constituted under the Punjab Consumer Protection Act, 2005 but also keeping in view the increasing tendency in the concerned circles to the effect that even the cases of civil nature for recovery of different amount to be filed in the Courts of plenary jurisdiction and also the claims as to tortuous acts of the adversaries the people have started to rush to the Consumer Courts and as a result of summary procedure, they are getting favourable results. Although section 30 of the Punjab Consumer Protection Act, 2005 which provides procedure to be adopted by the Consumer Court do indicate the production of evidence but neither the concept of framing of issues on the basis of divergent pleadings of the parties nor specific procedure for recording of evidence has been provided with regard to the proceedings to be taken by the Consumer Court. It is high time that the statute viz. Punjab Consumer Protection Act, 2005 Act-II (2005) be suitably amended by inserting the provisions in Section 30 thereof, enabling the Consumer Court to frame issues on the basis of divergent pleadings of the parties and to provide ample opportunity to the parties concerned to produce their evidence on the issues and then to decide the same after giving issuewise findings after consideration of the evidence available on record. This Court can direct the Province of Punjab to initiate appropriate administrative/ legislative measure within a certain period to make necessary amendments in the relevant portion of the statute as indicated hereinabove. I am fortified in issuing such direction by an authoritative judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379) and Province of Punjab is thus directed to initiate appropriate administrative/legislative measure within a period of next 6-months to make necessary amendments particularly in section 30 of the Punjab Consumer Protection Act, 2005 in order to provide a power to Consumer Court to frame issues from the divergent pleadings of the parties and also to record evidence of the parties on such issues and then to give issuewise findings on such material available before it. MH/M-242/L Order accordingly.