P L D 2011 Quetta 48
Before Mrs. Syeda Tahira Safdar, J
Messrs LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY, HUB
through Managing Director and another ---Appellants
Versus
Messrs PRISM PRINTER (PVT.) LTD. through Director ---Respondent
R.S.A. No.1 of 2009, decided on 31st March, 2011.
(a) Civil Procedure Code (V of 1908) ---
----Ss. 2(2), 33, O.XX, Rr. 6, 7 & 8 ---Decree ---Necessary ingredients ---Decree should follow
judgment and it should not only contain number allotted to the suit but also complete names
and description of the parties with particulars of claim and also relief specified clearly
therein ---Decree should agree with the judgment.
(b) Electricity Act (IX of 1910) ---
----Ss. 2(c), 2(h), 24, 36 & 54 -C---Electricity Rules, 1937, Abridged Conditions of Supply,
Conditions, 19 & 25 ---Specific Relief Act (I of 1877), Ss.42 & 54 ---Electricity charges ---
Dispute, res olution of ---Bar on jurisdiction of civil court ---Plaintiff was aggrieved of
disconnecting electricity connection by defendant due to non -payment of disputed electricity
dues---Validity ---There existed relationship of licensee and consumer between the part ies,
therefore, dispute arising between them, which was with respect to electricity dues, was to be
referred to Electricity Inspector in accordance with the provisions of Electricity Act, 1910 ---
Plaintiff admitted that electricity charges were paid by him but notice of disconnection was
issued in respect of non-payment of dues which was received by plaintiff ---Notice issued by
defendant was within the meaning of provisions contained in S.24 of Electricity Act, 1910,
thus dispute was to be referred to Electr icity Inspector appointed under S.36 of Electricity
Act, 1910 ---Bills of electricity charges were issued as per Condition No.19 of Abridged
Conditions of Supply attached to Electricity Rules, 1937 ---While Condition No.25 of Abridged
Conditions of Supply provided the procedure for resolving of disputes arising between the
department and consumer; there was a bar on jurisdiction of civil court, as contained in S.54 -C
of Electricity Act, 1910 ---Trial Court lacked the jurisdiction to the extent of determination of
electricity charges and liability of its payment ---Relief to the extent of issuance of 'No
Objection Certificate' of no dues and restoration of electricity supply based on payment and
clearance of dues, therefore, relief to that extent could not be gra nted until and unless matter
was decided by relevant authority under provisions of relevant law and rules ---Lower
Appellate Court as well as Trial Court failed to consider legal aspect of the case thereby
arrived to the decision which was contrary to relev ant law, thus not sustainable ---Judgments
and decrees passed by two courts below were set aside and suit filed by plaintiff was
dismissed ---Appeal was allowed in circumstances.
Malik Sarwar Awan for Appellants.
H. Shakil Ahmed for Respondent.
Date of hearing: 17th September, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Instant appeal has been filed with averments, that
the civil suit filed by respondent No.1 for declaration and direction, was decreed, without
recording of any evidence oral o r documentary, through judgment dated 31 -12-2006 by
Senior Civil Judge, Hub, while the appeal preferred by respondent No.1 was also dismissed
by Additional District Judge, Hub, on point of limitation, through order dated 14 -5-2007.
Further, the order of ap pellate Court was set aside by this court, through order dated 8 -8-
2008, while the appeal was remanded for disposal afresh on merits. It is further contended,
that the appellate court without considering merits of the case, again accepted the appeal
throug h order dated 31 -10-2008. It is further asserted, that contrary to law another decree was
passed in the matter by Additional District Judge, Lasbella at Hub, on 26 -11-2008. The
appellant preferred instant appeal on grounds, that the subsequent decree dated 26-11-2008 is
bad in eyes of law, and resulted in grave miscarriage of justice, but the impugned order is
also defective. It is their contention, that on basis of subsequent decree the respondent has
filed application for execution of decree, which is con trary to law. The appellants have
prayed that impugned judgment and subsequent decree be set aside, while suit be dismissed.
Learned counsel for the parties are heard, while record is perused. Learned counsel for the
appellant raised contention, that the appellate court on remand of the case failed to give
decision on merits, in contravention of the directions made by this court, while remanding
the" matter. He further contended, that the appellate court failed to discuss the evidence, nor
recorded the fi ndings on each issue. It was his arguments, that the impugned order is contrary
to the facts and material present on record, while the appellate court has failed to consider,
that the declaration sought in the plaint, is not in accordance with law. He furt her stressed that
the electricity charges are to be paid by the user in each case. The main contention of the
learned counsel for appellant was to the effect, that the order and decree was contradictory in
nature, and the addition made in subsequent decree sheet is altogether illegal, thus not
sustainable under law. The learned counsel for the respondent did not address the court on the
points relating to preparation of subsequent decree sheet, and. the contradictions present in
judgment and decree, as poin ted out by learned counsel for the appellants. Rather the learned
counsel for the respondent, restricted his arguments only to the extent of merits of the case. It
was his contention that the outstanding dues have already been paid, and as the electricity
was not supplied, therefore; there was no occasion for payment of minimum charges, further
no notice was ever served on them, with demand of payment of dues. He relied on clause -XI
of the lease agreement.
The perusal of the record reveals, that the respo ndent/plaintiff i.e. Messrs Prism Printers
(Pvt.) Ltd. filed a suit for declaration and direction with prayer that the plaintiff be declared
as allottee with possession of the, suit plot bearing No.A -88, measuring 1250 square meters
in Hub Industrial Estat e, thus entitled to receive No -Objection Certificate of no dues in
respect of the plot. It is further prayed, that direction be issued for restoration of electricity of
the plot in question. The further prayer is to the effect, that defendant No.1/appellan t No.1 be
directed to issue the, required N.O.C. in their favour with immediate effect. Defendant
No.1/appellant in written statement objected on maintainability of the suit to the effect, that
the suit is filed without any cause of action, and without loc us standi, further, proper court fee
has not been affixed. On merits, it was their plea, that the plaintiff being defaulter, as failed to
pay the electricity charges to the tune of Rs.1020589, despite having knowledge of the same,
is not entitled for issua nce of No Objection Certificate of no dues as per terms and conditions
of the agreement. Further, the plaintiff/ respondent is avoiding to make the payment of
charges, as such not entitled to the relief as claimed in the suit. Though defendant
No.2/appella nt No.2 filed separate written statement, but raised same contention.
The perusal of record further reveals, that the trial court framed issues on 11 -7-2006, and
called evidence. But no witness was produced by either of the parties, rather only
represent atives of the parties got recorded their statements. The plaintiff/respondent instead
of producing evidence filed application for admission of documents, which was replied by the
defendants/appellants, thereby admitting the mentioned documents with some ex ceptions.
While in rebuttal no evidence was produced by the defendants/ appellants. On completion of
trial, suit was decreed through judgment dated 30 -12-2006. The appeal preferred by the
present respondent was also dismissed through order dated 14 -5-2007 by Additional District
Judge, Hub, on point of Limitation. The order was challenged before this court, which was
accepted through order dated 8 -8-2008, and appeal was remanded for deciding it on merits.
The learned appellate court on remand after hearing b oth the parties, accepted the appeal,
through order dated 31 -10-2008, which is presently impugned before this Court.
Before touching merits of the case, the point which needs consideration at the first instance is
preparation of two decree sheets. The ap pellants have annexed certified copies of decree
sheets bearing dated 31 -10-2008, and 26 -11-2008. The perusal of both the decree sheets
reveals that decree sheet prepared on 31 -10-2008 is to the effect: --
"Today this appeal has come up for final disposal before me, Muhammad Ali Satakzai Addl:
District and Sessions Judge Lasbella at Hub, in presence of Mr. Sami -uz-Zaman Advocate
for appellant and Mr. Hafeez -ur-Rehman Advocate for respondents. The appeal filed by
appellant is accepted with direction to resp ondent Nos.1 and 2 that N.O.C. to appellant be
issued as soon as possible without any delay as per law."
Given under my hand and seal of the court this 31st day of October, 2008. "
While decree sheet prepared on 26-11-2008 is to the effect: -
"Today t his appeal has come up for final disposal before me, Muhammad Ali
Satakzai Addl: District and Sessions Judge, Lasbella at Hub, in presence of Mr.
Sami -uz-Zaman Advocate for appellant and Mr. Hafeez -ur-Rehman Advocate for
respondents. The appeal is accepted with directions to respondents Nos.1 and 2
that N. O. C. to appellant be issued as soon as possible without any delay and
electricity be installed as per law.
Given under my hand and seal of the court this 26th day of November, 2008. "
The bare perusa l of both the decree sheets reveals that in subsequent decree sheet addition of
words "and electricity be installed" is made. While both of the decree sheets are prepared on
two. different dates. Term "decree" is defined in section 2, subsection (2), C.P.C , which states
as under: --
"2(2) "decree" means the formal expression of an adjudication which, so far as
regard the Court expressing it, conclusively determine 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 Rules
60, 98, 99, 101 or 103 of Order XXI but shall not include:
(a) any adjudicatio n from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default;
While section 33, C.P.C. is to the effect that: --
"Judgment and decree .---The court, after the case has been heard, shall
pronounce judgment, and on s uch judgment a decree shall follow.
Further, Rules 6, 7 and 8 of Order XX, C.P.C. describe the contents required to be contained
by a decree i.e. the date on which it is to be prepared and signing of the decree by the judge
concerned. The Rules are repro duced hereunder:
"Order -XX Rule -6. Contents of decree. ---(1 )The decree shall agree with the
judgment; it shall contain the number of the suit, the names and descriptions of the
parties, and particulars of claim, and shall specify clearly the relief gran ted or
other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by
whom or out of what property and in what properties such costs are to be paid.
(3) The Court may direct that the costs payable to o ne party by the other shall be
set-off against any sum which is admitted or found to be due from the former to the
latter.
"Order -XX Rule -7. Date of decree. --The decree shall bear date the day on
which the judgment was pronounced, and, when the judge ha s satisfied himself
that the decree has been drawn up in accordance with the judgment, he shall sign
the decree.
"Order -XX Rule -8. Procedure where Judge has vacated office before signing
decree. --Where a judge has vacated office after pronouncing judgmen t but without
signing the decree, a decree drawn up in accordance with such judgment may be
signed by his successor or, if the Court has ceased to exist, by the judge of any
Court to which such Court was subordinate. "
Keeping in view the above mentioned Sections and Rules, the decree shall follow the
judgment, while the decree not only contain number allotted to the suit, but complete names
and description of the parties with particulars of the claim, and also relief specified clearly
therein. Above all the decree shall agree with the judgment. While in the present case the trial
court decreed the suit through judgment dated 30 -12-2006, while decree followed in terms:
"Today this suit has come up for final disposal before me, Nauroz Khan Hoth,
Senior Ci vil Judge, Hub, in presence of Sakhi Gazali Advocate for plaintiff and
Mr. Hafeez -ur-Rehman Advocate for defendants. The plaintiff is directed to
approach M.D. LIEDA and submit application for restoration of electricity supply,
besides M.D. LIEDA is requir ed to take matter and make concession, co -operation
to plaintiff, if there is exist any incentive by Government or any other leniency may
be done in favour of plaintiff and matter be resoled within one month after that
N.O. C be issued -to plaintiff as per law. The suit is decreed reason cited above.
Given under my hand and seal of the court this 30th day of December, 2006."
The appeal filed by the present respondent/ plaintiff, which was allowed through
judgment dated 31 -10-2008, in terms: --
"Appeal f iled by appellant is accepted with directions respondents Nos.1 and 2
that N.O. C. to appellant be issued as soon as possible without any delay as per
law."
Thus the decree must be in terms of judgment as mentioned hereinabove. Therefore, the
subsequent decree sheet is of no legal effect. This fact is further noted from perusal of
original file of Civil Appeal No.7 of 2008, titled as Messrs Prism Printers (Pvt.) Limited
v. Managing Director, Lasbella Industrial Estate Authority, Hub and Secretary Industri es,
Government of Balochistan, only one decree sheet is present in case file and no
subsequent decree sheet is present on record.
As certified copy of subsequent decree sheet has been filed by the appellants along with
memo of appeal, which bears stamp a nd signature of Reader to the Additional District and
Sessions Judge, District Lasbella at Hub, therefore, the concerned District Judge, be
directed to make probe into the matter, and submit report through Registrar of this court,
for perusal in chamber.
Keeping in view the above mentioned facts and circumstances, the subsequent decree
sheet is of no legal value, thus no right can be claimed on basis of the same.
The respondent/plaintiff in their suit sought declaration to the effect, that they being
allottees with possession of the plot bearing No.A -88, measuring 1250 square meters, in
Hub Industrial Estate, thus entitled to receive No Objection Certificate of no dues, with
further prayer that electricity of the plot be restored, while direction be issu ed to the
defendants/appellants to issue required NOC immediately. The fact of allotment, and
possession is not denied by the defendants/appellants in reply to the suit, with plea that
the plaintiff/respondent is defaulter, as an amount of Rs.1020589 is ou tstanding against
the plaintiff, as electricity charges, and before issuance of required N.O.C. the dues are to
be paid. It is to be noted that though the suit filed by the respondent/plaintiff was decreed
in their favour, but being unsatisfied with terms of decree, the appeal was preferred,
which was accepted by the appellate court. The bare perusal of the impugned order
reveals, that the appellate court neither discussed the material present on record, nor gave
findings on the points raised in to appeal, rather simply noted down the facts with
addition, that learned counsel for the respondent/present appellant totally denied the
outstanding bill against the appellant/present respondent, and gave full consent for
issuance of NOC without any delay. The learn ed appellate Judge only accepted the appeal
as being convinced personally, that the appellant is legal purchaser of Plot No.A -88,
therefore, the appeal is allowed, and respondents Nos.1 and 2/present appellants are
directed to issue N.O.C. to the appellant / present respondent without any delay as per law.
The findings arrived by the appellate court are on no basis, as nothing has been discussed,
nor the relevant law has been referred, on basis of which No Objection Certificate is to be
issued. The appellate court only based its findings on personal satisfaction, without
discussing the material placed on record. In the circumstances, the decision arrived by the
appellate court is not only erroneous, but also of no legal effect.
In present case, it is an adm itted fact that plot in question was purchased by the
respondent in 1987, while possession of the same was also handed over to the respondent
on 3 -1-1988, and the lease agreement was also executed on same date, between the
parties, and since then the respo ndent/ plaintiff is in possession of the same. It is also an
admitted fact that till present the plot in question is being vacant with no construction
thereon. The respondent, as per its own showings is aggrieved of only non -issuance of No
Objection Certif icate of no dues by the Authorities i.e. present appellants in its favour. In
reply it is only contended by the appellants/defendants, that as respondent/ plaintiff has
failed to pay the arrears of electricity charges, while an amount of Rs.1020589 is
outstanding, therefore, respondent/plaintiff is not entitled for issuance of N.O.C. for no
dues in his favour. It is also apparent from the plaint, that when the possession was
handed over to the respondent/plaintiff electricity connection was available on the plot in
question. Though it is asserted in the plaint that in December, 1990 due to breaking of
wires the electricity was disconnected, which was not restored, thereafter, despite
submitting of complaints, as such plaintiff/ respondent is not bound to pay the charges.
The appellants/defendants denied the fact of disconnection of the electricity, rather only
asserted non -payment of electricity charges.
Keeping in view the pleadings of the -parties, the matter in issue is liability of payment of
electricity charges supplied to the plot in question, which is in possession of the
respondent/plaintiff. It is also an admitted fact, that the electricity is supplied to the plot
by .the appellants. Thus in the circumstances, appellants are "Licensees" and the
respo ndent/plaintiff is covered with the term "Consumer", as defined in section 2(c) and
(h) of Electricity Act, 1910, which states as under: -
"2. (c) "Consumer" means any person who is supplied with energy by a licensee, or
whose premises are for the time b eing connected for the purpose of a supply of
energy with the works of a licensee; "
"2. (h) "Licensee" means any person licensed under Part -II to supply energy;"
Keeping in view the nature of the case, as there existed relationship of licensee and
consumer between the parties, therefore, the dispute arising between them which is in
respect of electricity dues, is to be referred to Electricity Inspector in accordance with the
provisions of Electricity Act, 1910. As per respondent's own showings the elec tricity
charges are duly paid by him, but it is further admitted that notice for disconnection was
issued in respect of non -payment of dues, which was received by the plaintiff/respondent.
The said notice was surely in terms of section 24 of Electricity Ac t, 1910, thus within the
meaning of the provisions contained in the section, the dispute is to be referred to the
Electricity Inspector, appointed under section 36 of the Electricity Act, 1910.
Furthermore, the Bills of electricity charges are issued as pe r Condition No.19 of
Abridged Conditions of Supply attached to Electricity Rules, 1937. While condition
No.25 of the Conditions provides the procedure for resolving of the disputes arising
between the Department and the consumer. There is also a bar on jur isdiction of a Civil
Court, as contained in section 54 -C of Electricity Act, 1910.
Thus keeping in view the above mentioned provisions of relevant law, and matter in issue,
there is lack of jurisdiction on part of the trial court to the extent of determi nation of
electricity charges, and liability of its payment. As the relief to the extent of issuance of
No Objection Certificate of no dues, and restoration of electricity supply based on
payment and clearance of the dues, therefore, the relief to this ext ent cannot be granted in
the circumstances, until and unless matter is decided by the relevant Authority under
provisions of relevant Law and Rules. The appellate court as well as trial Court
completely failed to consider legal aspect of the case, thereby arrived to the decision,
which is contrary to relevant law, thus not sustainable. In view of above discussion,
present appeal is accepted. The judgment dated 31 -10-2008 of Additional Sessions Judge,
Lasbella at Hub, and judgment dated 30 -12-2006 of Senior Civil Judge, Hub, are hereby
set aside. Resultantly, the suit filed by respondent/plaintiff is dismissed.
No orders as to costs.
M.H./24/Q Second appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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