2023 C L C 1445
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
Messrs R.L. PAPER BOARD MILLS through Managerand others ----Appellants
Versus
Messrs SUI SOUTHERN GAS COMPANY LIMITED ----Respondent
R.F.As. Nos.37 to 39 of 2021 and Civil Miscellaneous Appeals Nos.49 and 50 of 2021,
decided on 19th April, 2023.
Gas (Theft Control and Recovery) Act (XI of 2016) ---
----Ss.6(4), 7(2), 13 & Appendix "B" Form No.4---Gas Utility Court--- Suit for recovery of
amounts ---Leave to defend the suit ---Non -issuance of summons in Form No.4 of Appendix
"B"---Effect ---Factual controversies, scrutiny of ---Appellants / consumers were aggrieved of
dismissal of their leave to defend the suits resulting into judgment and decree passed by Gas
Utility Court in favour of respondent / authorities ---Validity ---On presentation of suit,
notices were not issued in Form No. 4 of Appendix "B" as contemplated under Ss. 6(4) & 7 (2) of Gas (Theft Control and Recovery) Act, 2016--- From the very inception of the suit,
proceedings were not initiated in accordance with the provisions of Gas (Theft Control and
Recovery) Act, 2016--- Several factual controversies regarding installation, removal of fake
meters as well as mis -calculation of sum dues erupted---Such controversies needed to be
scrutinized as the same could not be decided merely on the basis of pleadings or disputed documents ---Factual controversies could only be resolved through evidence and such aspect
was not dilated upon by Gas Utility Court making judgments and decrees in question as erroneous ---High Court set aside judgments and decrees passed by Gas Utility Court as
material question of law and facts remained unattended ---High Court remanded the matter to
Gas Utility Court for decision afresh---Appeal was allowed accordingly.
Muhammad Riaz Ahmed and Bilal Ahmed for Appellant (in R.F.A. No.37 of 2021).
Syed Ayaz Zahoor along with Makhdoom -ur-Rehman, Law Officer SSGCL for
Respondent (in R.F.A. No.37 of 2021).
Rizwan Ali Soomro for Appellant (in R.F.A. No.38 of 2021).
Syed Ayaz Zahoor along with Makhdoom -ur-Rehman, Law Officer SSGCL for
Respondent (in R.F.A. No.38 of 2021).
Muhammad Riaz Ahmed and Bilal Ahmed for Appellant (in R.F.A. No.39 of 2021).
Syed Ayaz Zahoor for Respondent (in R.F.A. No.39 of 2021).
Ilahi Bakhsh Mengal for Appellant (in C.M.A. Nos.49 and 50 for 2021).
Syed Ayaz Zahoor along with Makhdoom -ur-Rehman, Law Officer SSGCL for
Respondent (in C.M.As. Nos.49 and 50 of 2021).
Date of hearing: 19th April, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The appellants have brought before us the
captioned appeals against the judgments and decrees dated 30.11.2021 rendered by District
Judge - Gas Utility Court Lasbela at Hub ("Gas Utility Court"), whereby the suits filed under
the Gas (Theft Control and Recovery) Act, 2016 ("Act of 2016") by the respondents bearing No.01 /2017 for recovery of Rs.44,59,407/ -, No.04/2019 for recovery of Rs.48,81,700/ -,
No.02/2019 for recovery of Rs.86,481,300/ -, No.03/2017 for recovery of Rs.605,626/ - and
No.03/2019 for recovery of Rs.85,78,800/ - were decreed in consequence of refusal of leave
to defend.
As the above appeals are knitted with almost similar thread of factual and legal
controversies, therefore, the captioned appeals are being decided through this consolidated judgment.
2. Backdrop of the lis in hand are that the above suits for recovery of various sums
mentioned hereinabove with markup @ 20 % from the date of institution of the suit as well
as GST and LPS till realization of the decree were brought by the respondent on account of using gas directly through PRS main line connection, reversal of meter, installation of fake meters as well as failure to pay the gas bills due against the appellants under the Act of 2016 before the Gas Utility Court, which was contested by the appellants by filing written statement on factual and legal premises, whereafter on the basis of divergent pleadings issues were cast and the parties were directed to adduce their evidence. In the meanwhile, the Gas Utility Court realized that since the Act of 2016 provides a special procedure as contemplated under section 7 of the Act ibid to seek leave to defend within 21 days of the date of first service as such objections were invited and the respondent was allowed to file replications as provided under section 7 of the Act of 2016. The parties were heard and leave was refused, henceforth, the impugned judgments and decrees were pronounced, following the above appeals.
3. Learned counsel for the appellants inter alia contended that after submission of the
written statements, framing of the issues and directing the parties to file list of witnesses as well as to produce evidence, there was no occasion for the Trial Court to have had refused the leave because impliedly leave was granted, therefore, on this score alone the impugned judgment and decrees is liable to be set at naught. He asserted that the Act of 2016 has no application in the instant matter and doesn't have a retrospective effect as the allegations and claim of the company against the appellants pertains to the date before promulgation of the
Act of 2016 and there is no authorization to file the suit. Added further that since the matter
involves disputed question of facts, therefore, without recording evidence no decree or judgment could be rendered unless the parties are allowed to substantiate their claims through evidence, hence request was made for acceptance of the appeals and setting aside the impugned judgments and decrees being illegal and perverse.
Adversely, learned counsel for the respondent contested and resisted the contentions
so advanced by the learned counsel for the appellants. It was vigorously argued that the Act of 2016 provides special mode for recovery of the amount due against the consumers, which cannot be hampered and delayed on the pretext of adducing evidence. He defended the impugned judgments and decrees and stated that the same have been rendered on the basis of proper appreciation of documentary evidence and application of law, which requires not to be interfered with, henceforth, requested for dismissal of the appeals.
4. Heard. Record pondered upon with utmost muse and care in view of the contentions
and arguments advanced by learned counsel for the parties. The Gas Utility Court has been promulgated with the purpose to prosecute cases of theft and to provide procedure for expeditious recovery of amounts due against consumers. And as such under section 3 of the Act of 2016 the Federal Government in consultation with the Chief Justice of the respective High Court have established Gas Utility Courts to enforce the provisions of the Act ibid in order to punish the gas theft felons as well as to expeditiously recover the sum due to gas utility companies by the defaulter consumers. A Gas Utility Court is empowered with the exclusive jurisdiction under sections 4 and 5 of the Act of 2016, with a dual jurisdiction, such as to exercise civil one hand as well as criminal jurisdiction on the other so envisaged under clauses (a) and (b) of section 5.
5. As the lis in hand pertains to recovery of amount, as such, the Gas Utility Court
exercises its civil jurisdiction and have all powers vested in Civil Procedure Code 1908 (Act V of 1908) as envisaged under clause (a) of section 5, thus this Court besides having powers under Section 5 (a) of the Act of 2016 also deals the civil suits under sections 6 and 7 of the Act ibid. Section 6 provides a procedure which obviously has precedence and has overridding effect upon all the other laws enforced, which provides that while filing a suit the plaint shall accompany gas sales agreement, gas bills, statement of dues and other relevant documents. It also reads that in the case of suit for recovery instituted, the quantity of gas consumed or extracted by the defendant from the gas utility company, the amounts if any paid with dates and totals dues relating to supply and consumption of gas shall be mentioned therein.
Clause (4) of section 6 of the act of 2016 enunciates that the plaint being presented,
the Gas Utility Court, shall issue summons in Form No.4 of Appendix "B" of the Act v of the 1908 shall be served upon the defendant by the process server or through alternative modes such as by registered post of acknowledgement courier and as well as by publication in at least two daily news -paper. The service of summons can be duly affected. Materially clause
(4) of section 6 envisages that summon should be in Form No. 4 so demonstrated in appendix "B" of the Act of 2016, which for ease of referenced is reproduce herein below;
"No.4, SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT
(0.37,r.2)
(Title)
To
[Name, description and place of residence]
WHEREAS……………..has instituted a suit against you under Order XXXVII of the
Code of Civil Procedure, 1908, for Rs………balance of principal and interest due to
him as the of a of which a copy is hereto annexed, you are hereby summoned to
obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs……….and the sum of Rs……….for costs [together with such interest, if any, from the date of the institution of the suit as the Court may order].
Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit.
GIVEN under my hand and the seal of the Court, this day of 19....
Judge"
6. Section 7 provides the mode of proceeding with the suit, which for ease of reference
is facsimile as infra;
"7. Leave to defend. (1) In any case in which the summons has been served on the
defendant, the defendant shall not be entitled to defend the suit unless he obtains leave from the Gas Utility Court as hereinafter provided to defend the same and in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Gas Utility Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Gas Utility Court may require in the interests of justice.
(2) The defendant shall file the application for leave to defend within twenty- one days
of the date of first service, provided that where service has been validly effected only through publication in the newspapers, the Gas Utility Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof.
(3) The application for leave to defend shall be in the form of a written statement, and shall contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded.
(4) The application for leave to defend shall also specifically state the following, where applicable.
(a) the amount of gas supplied by the Gas Utility Company and consumed by the
defendant, the amount paid by the defendant to the Gas Utility Company for such consumption and the dates of payments up to the date of institution of the suit;
(b) the amount of outstanding dues and other amounts relating to the supply and consumption of gas by the defendant to the Gas Utility Company up to the date of institution of the suit;
(c) the amount, if any, which the defendant disputes as payable to the Gas Utility Company and fact in support thereof;
(d) a statement specifically admitting or denying the documents relied upon in the plaint.
(5) The application for leave to defend shall be accompanied by all the documents which in the opinion of the defendant, support the substantial questions of law or fact raised by him.
(6) An application for leave to defend which does not comply with the requirements
of subsections (3), (4) and, where applicable subsection (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any
such requirement.
(7) The plaintiff shall be given an opportunity of filing a reply to the application for leave to defend in the form of a replication and such replication shall also specifically accept or deny any documents relied upon in the application for leave to defend.
(8) The Gas Utility Court shall grant the defendant leave to defend the suit if, on consideration of the contents of the plaint, the application for leave to defend and the
reply thereto, it is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded.
(9) In granting leave under subsection (8), the Gas Utility Court may impose such conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit of cash or furnishing of security.
(10) Where the application for leave to defend is accepted, the Gas Utility Court shall treat the application as a written statement, and in its order granting leave shall frame issues relating to the substantial questions of law or fact and subject to fulfillment of any conditions attached to grant of leave fix a date for recording of evidence thereon and disposal of the suit.
(11) Where leave to defend is granted and evidence is to be recorded the parties may file affidavits in respect of the examination- in-chief of any witness and where such
affidavits are filed, the Gas Utility Court shall give notice thereof to the other contesting parties and on the date fixed for recording evidence shall, subject to such modification as may be required the purposes of production and exhibiting of documents or otherwise in accordance with law, treat the affidavit as examination- in-
chief and allow the contesting parties an opportunity for cross -examination on the
basis thereof.
(12) Where the application for leave to defend is rejected or where a defendant fails to
fulfill the conditions attached to the grant of leave to defend, the Gas Utility Court
shall forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant."
7. Section 7(1) of the Act ibid clearly manifests that defendant shall not be entitled to
defend the suit unless he is granted leave to defend, whereas clause (2) of the above section contemplates that the defendant shall file the application for leave to defend within 21 days of the date of first service subject to a valid service, which shall contain a summary of substantial question of law as well as fact in respect of his defence which can later be substantiated by evidence. The most crucial aspect of the matter is that the summons issued
must be in Form No.4 of Appendix "B" as mentioned in clause (4) of section 6, the
compliance whereof has been made mandatory by using word shall in clause (2) of section 7
of the Act of 2016 with the intent and purpose that the defendant must be apprised of the suit having been filed under section 6 and requires to be defended by seeking leave first as envisaged under section 7 of the Act ibid and must not be surprised because in case he is not served with the summons as provided in form No.4 of Appendix "B" he would not be able to file the application for leave to defend within 21 days, which shall bar him to file such application beyond stipulated period, depriving him of his defence.
8. Reverting to the lis in hand, it is abundantly clear that on presentation of the suit, the
notices have not been issued in Form No.4 of Appendix "B" as contemplated under clause (4) of section 6 and clause (2) of section 7 of the Act of 2016, thus, from the very inception of the suit, proceedings were not initiated in accordance with the provisions of the Act ibid. The Trial Court on 12.07.2021 during the proceeding, later on realized that leave to Defend have not been granted, as such, an application was filed by appellants under section 7 clause (7) of the Act of 2016, whereupon the arguments were advanced by learned counsel for the
adversarial parties and leave to Defend was turned down and the suits were decreed vide the impugned judgments and decrees dated 30.11.2021 in favour of respondent and against the appellants.
9. Record reflects that the application under Order VII, Rule 11 of C.P.C. was also filed
by the appellants for rejection of the plaint which remained on the file for a considerable period, but despite several hearings it was not decided, which was obligatory upon the Gas Utility Court to have had decided its fate at the very inception of the proceedings, but by not doing so, the Trial Court has erred in law, which needs to be mended with and corrected accordingly.
10. The paramount question, which we believe to have been decided and attended to at
the earliest was the objection of the appellant pertaining to jurisdiction of the Gas Utility Court, whereof it was urged that the recovery of the sum dues were for the years before the date of promulgation of the Act ibid i.e. 24.03.2016; henceforth it is to be examine as to whether the Act of 2016 could be enforced retrospectively or otherwise. This material jurisdictional objection was though vigorously argued and raised by the appellants, but not decided by the Gas Utility Court.
11. Be that as it may, we have also observed that in view of the pleadings, several factual
controversies regarding installation, removal of fake meters as well as mis -calculation of the
sum dues have erupted, which obviously needs to be scrutinized as the same cannot be
decided merely on the basis of pleadings or disputed documents. There is no cavil to the proposition that factual controversies can only be resolved through evidence, which aspect has also not been dilated upon by the Gas Utility Court, making the impugned judgments and
decrees erroneous.
12. The Trial Court has also not attended the objection as to whether after submission of
written statement, framing of issues, directing the parties to file their list of witnesses as well
as to adduce evidence, the question of leave to defend was alive or otherwise.
13. Nonetheless, if the Gas Utility Court arrives at the conclusion that it has no
jurisdiction to proceed with the cases under the Act of 2016, then the plaints can be returned for filing of the same before the competent forum, having jurisdiction, subject to all just and legal exception.
14. Upshot of the above discussion is that learned Trial Judge of the Gas Utility Court has
left the material question of law and facts mentioned in the preceding paras unattended, without rendering its finding thereupon; henceforth, irresistibly we are of the considered view that the impugned judgments and decrees cannot be allowed to hold field, as such, the same merits to be set at naught.
15. Corollary, in view of the above, the appeals captioned hereinabove are allowed, the
impugned judgments and decrees dated 30.11.2021 are set aside and cases are remanded to the Gas Ulity Court for decision afresh on the question of leave to defend, while attending all
the questions enumerated hereinabove and the decide the case on its own merits after providing opportunity of hearing to the counsel for the adversarial parties, accordingly.
The parties shall bear the expenses of the lis at their own.
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