P L D 2015 Balochistan 110
Before Mrs. Syeda Tahira Safdar, J
Messrs SUI SOUTHERN GAS COMPANY LTD. through General Manager
and another ---Petitioners
versus
ARBAB NAJEEBULLAH ---Respondent
Civil Revision No.62 of 2011, decided on 27th February, 2015.
(a) Specific Relief Act (I of 1877) ---
----S. 42 ---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss. 11 & 12 ---Suit for
declaration ---Maintainability ---Alternate remedy ---Appreciation of evidence in civil and
criminal cases ---Scope ---Defendant a Natural Gas Supply Company had sued the plaintiff for
criminal liability of tampering with meter fixed by company ---Contention of plaintiff was that he
was acquitted from the criminal case but his connection was not restored by the Company ---Suit
was decreed concurrently ---Validity ---Company sued the plaintiff initially for a criminal
liability ---Plaintiff approached the civil court for redressal of his grievance on finalization of
criminal proceedings ---Facts of criminal case and acquittal rec orded in favour of plaintiff
(respondent) were in the knowledge of courts below ---Both the courts below relied upon the
findings recorded in the criminal case ---Undue weight was given to the fact that prosecution
could not establish its case which resulted in acquittal of the plaintiff ---Both the courts below
had erred in law ---Standard of appreciation of evidence in criminal and civil cases was different -
--Accused was presumed to be innocent in criminal cases unless his guilt was proved beyond any
shadow o f doubt ---Court had to reach at the basis of the matter in civil case and for its minor
contradictions or omissions had to be ignored ---Evidence recorded in one case could not be read
in another case unless the same was produced and exhibited in accordance with the rules of
evidence ---Person had to establish his case when he had approached a court to establish his civil
liability independently on the basis of evidence produced during course of trial of respective
case---Each case had to be decided on its ow n merit ---Basic principle had been ignored by both
the courts below while dealing with the present case ---Dispute was between a consumer and a
licensee of natural gas ---Matter was to be governed by the Oil and Gas Regulatory Authority
Ordinance, 2002 ---Alternate remedy was available to the plaintiff as consumer of Natural Gas
against the Company but he avoided the same ---Plaintiff was consumer of Natural Gas and was
in contract with the Company (petitioner) for supply of gas for domestic use ---Meter was
installed on the premises which was removed and connection was disconnected on the allegation
of tampering ---Statute had provided a proper procedure for resolution of dispute between a
consumer and a licensee ---Provisions of law and Regulation had to be adher ed to by the parties --
-Plaintiff was bound to set into motion the relevant provisions and to avail the provided remedy
but he directly approached a court of civil jurisdiction which was an error ---Alternate remedy
provided by law and Regulations had to be availed first while civil suit would be the last resort ---
Civil suit was not maintainable in presence of Regulations without availing of the remedy
provided therein for redressal of the grievances of a consumer against a licensee ---Impugned
judgments and d ecrees passed by the courts below were set aside and suit was dismissed being
not maintainable ---Revision was accepted in circumstances.
(b) Administration of justice ---
---Each case had to be decided on its own merit.
M.W.N. Kohli for Petitioners .
Iqbal Ahmed Kasi for Respondent.
Date of hearing: 24th September, 2014.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, 1. ---The petitioner Sui Southern Gas Company
Limited (the Company) assailed the judgment dated 26th April 2010 of Senior Civil Judge -1
Quetta, whereby the suit filed by the respondent Najeebullah was decreed in the terms as prayed,
and the judgment dated 15th December 2010 of Additional District Judge -I, Quetta, whereby his
appeal against the judgment of the trial court was declined.
2. The respondent Najeebullah, (the plaintiff), filed a suit with the facts that he in
occupation of a quarter situated at Railway Colony, Brewery Road, Quetta, having the gas
facility for the domestic purposes, but on 28th September 2007 a surveillance team of the Sui
Southern Gas Company (the Company) without any justification disconnected the supply of the
gas, and issued him a notice for non -recording the gas charges of the even date. It was case of the
plaintiff (respondent) that the disconnection was wi th mala fides, consequent thereto an FIR
against him with the allegations that the domestic gas connection was used for commercial
purposes was filed. He faced the trial, but stands acquitted vide judgment dated 23rd July 2009
of Additional Sessions Judge -II, Quetta. Meanwhile, the Company required him to make
payment of Rs.110,105/ - (Rupees one hundred and ten thousand one hundred five only) as claim
of commercial use. The claim was denied in reply submitted through an advocate. It was further
his case tha t on his acquittal he filed an application before the Company for restoration of the
connection and re -installation of the domestic gas meter, but with no response, hence the suit.
The suit was with the prayers:
"(a) Declaring that defendants had illegal ly disconnected the domestic gas connection bearing
customer No.0917691000 -9, meter No.21254137 installed at Arbab Water Supply, Brewery
Road, Quetta;
(b) Declaring that defendants had illegally issued notice/bill of Rs.110,105/ - to the plaintiff;
(c) by means of mandatory injunction defendants be directed for restoration of domestic gas
connection and re -installation of gas meter;
(d) Any other relief which this Hon'ble Court may deem proper in the circumstances of the
case may also be awarded;"
3. The defendants (present petitioners) contested the claim in the suit while contending that
under the garb of domestic meter, the connection was used for commercial purposes, as three
fake numbers were implanted by the plaintiff (respondent) in the premise s. Further, the plaintiff
(respondent) being a consumer was bound to comply with the terms and conditions of the
contract, executed between him and the Company, but he (plaintiff) failed to abide by the terms.
Further, the violation was traced out by the s urveillance team, and on basis thereof an FIR was
lodged against the plaintiff (respondent), who on trial was convicted for the offence punishable
under Section 379 Pakistan Penal Code (PPC) by the Judicial Magistrate -V, Quetta. It was
contended that the p laintiff (respondent) was found guilty of theft and misuse of domestic
connection as commercial purposes. They prayed for dismissal of the suit.
4. The trial court framed the issues arising out of the pleadings of the parties, called for the
evidence and vide judgment dated 26th April, 2010 arrived to the conclusion that the plaintiff
(respondent) succeeded to establish his case. The suit was decreed in the terms:
"Since the imperative issues Nos. 2 and 3 have been resolved in favour of plaintiff,
further the plaintiff succeeded to establish his suit. Therefore, the suit of plaintiff is hereby
decreed by virtue of which it is declared that the defendants had illegally disconnected the
domestic gas connection being customer No.0917691000 -9, Meter No.2125 4137 installed at
Arbab Water Supply, Brewery Road, Quetta further the defendants had illegally issued
notice/bill of Rs.110,105/ - to the plaintiff. Therefore, the defendants are directed to restore the
domestic gas connection and re -installation of gas me ter, however, the plaintiff is bound to pay
the actual amount as per rates of domestic connection of the units, he consumed."
5. The appeal against the order was declined vide judgment dated 15th December, 2010 by
the Additional Sessions Judge -I, Quetta, but the grievance subsisted, hence the instant petition.
6. The petition was filed on the grounds of misappreciation of facts and law. The facts of
committing theft by the respondent and violation of the terms and conditions of the contract
between the parties on part of the respondent were ignored. Further, the act of placing complete
reliance on findings recorded in a criminal case, and treating it (findings) as final having binding
effect on a court dealing with a case civil in nature, was an error on part of the courts, trial and
appellate. It was ignored that the decision must be on basis of the evidence produced before the
court in respective case.
7. Learned counsel for the petitioner, only narrated the facts as noted down in the petition
and ad ded nothing except that civil and criminal liabilities are independent of each other. While
in reply the learned counsel for the respondent only stated that as the respondent was absolved
from his criminal liability, thus he was not bound to pay the amount claimed by the Company,
further the order of acquittal made him entitled for restoration of the domestic gas connection
and installation of the gas meter.
8. The matter in hand pertains to the use of Natural Gas, while the plaintiff (respondent)
approached the court in capacity of retail consumer for natural gas, for redress of his grievance.
The status of the plaintiff (respondent) as of consumer of the Company was not denied, while
filing of a criminal case against him for the offence punishable under section 379, P.P.C. was
also a fact. The papers available in the case file described that the respondent was booked in the
criminal case, which remained pending before the court of Judicial Magistrate -V, Quetta, and he
was convicted for the offence along with co -accused Ghulam Mustafa and Illahi Bakhsh vide
order dated 31st August, 2008. The respondent appealed against his conviction, and succeeded to
obtain an order of acquittal vide judgment dated 17th March 2009 of Additional Sessions Judge -
II, Qu etta. Astonishingly the petitioner showed ignorance of this order. The plaintiff (respondent)
in fact was aggrieved of the notice dated 3rd March 2008 issued to him by the Company for
payment of an amount of Rs.110,105/ -, determined to be the value of the gas consumed on
account of its commercial use for the period 29th September 2006 to 8th September 2007. The
suit was filed in August 2009 with no explanation of delay. It was his case that despite his
acquittal the Company had not restored the connection, nor installed the gas meter, instead
thereof claimed the amount, to penalize him for the offence not committed by him.
9. The facts as apparent from the record that the Company (petitioners) sued the respondent
initially for a criminal liability, and on finalization of the matter the respondent approached the
civil court for redressal of his grievance. Thus the facts of the criminal case and the acquittal
recorded in favour of the respondent (plaintiff) were in knowledge of the courts, trial and
appellate , and while dealing with the case complete reliance was made by them on the findings
recorded in the criminal case. In addition undue weight was given to the fact that the prosecution
was not able to establish its case, which resulted in acquittal of the p laintiff (respondent). Both
the courts, trial and appellate, were under some misconception, therefore, erred. The standard of
appreciation of evidence in cases, criminal and civil, are quite distinct. In criminal cases an
accused is always presumed to be i nnocent unless his guilt is proved beyond any shadow of
doubt. Contrary to it in cases civil in nature the court has to reach at the basis of the matter, and
during course the minor contradictions or omissions are to be ignored. Further, it is an
establish ed principle that evidence recorded in one case cannot be read in another case unless
same is produced and exhibited in accordance with the rules of evidence. In addition a person
when approaches a court to establish his civil liability, has to establish h is case independently on
basis of the evidence produced during course of trial of respective case. Above all each case has
to be decided on its own merit. This basic principle was ignored by the courts, trial and appellate,
while dealing with the case in h and.
10. Before going into further merit of the case it is to be kept in sight that the matter in hand
pertained to issuance of claim for commercial use of gas, and the respondent (plaintiff) was
required to pay an amount of Rs.110,105/ - as value of the gas consumed within the described
period. The dispute was between a consumer and a licensee of natural gas, thus the matter was to
be governed by the Oil and Gas Regulatory Authority Ordinance, 2002 (Ordinance XVII of
2002). It is noted with concern that t he learned counsel for the petitioner though before this
court, to challenge the decree in favour of the plaintiff (respondent), but was unable to quote the
Law, Rules and Regulations, which govern the matter. Ordinance XVII of 2002 comprehensive
enough to regulate the matters connected with the Petroleum Industry and matters related thereto,
but sections 41 and 42 of the Ordinance XVII of 2002 are in addition, which confer powers of
making Rules and Regulations for carrying out the purpose of the Ordinance . Sub -section (2)
clause (e) of Section 42 includes making of Regulations to provide procedure for resolving
dispute amongst the licensees, consumers and licensees, and users of open access facilities. Thus,
the Authority on strength of the referred power framed the Complaint Resolution Procedure (for
Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) and refined
oil products) Regulations 2003 (Regulations 2003). It contained the procedure for filing of a
complaint and the procedure to be adopted by the Authority for redressal of the grievances on
receiving of the complaint. Para -2 of the Regulations defined the Designated Officer Committee,
i.e. the Authority, while Para -3 enumerate nature of the complaints submitted to the Authorit y by
any person to be dealt under the Regulations, reproduction would be beneficial:
"3. Nature of complaints. ---Any person may submit an application with the Registrar for --;
(a) any act or thing done or omitted to be done by a licensee or dealer in v iolation or alleged
violation of the Ordinance, rules, regulations, order of the Authority or terms and conditions of
the license;
(b) non-compliance by the licensee or dealer with the service standards in the area including
but not limited to;
(i) bi lling;
(ii) connection and disconnection of service;
(iii) metering;
(iv) undue delay in providing service;
(v) safety practices; or
(vi) quantity and quality of natural gas, LPG or CNG being supplied; or
(c) discriminatory practices of th e licensee or dealer.
11. The matter in issue between the parties is covered by Para -3 of the Regulations 2003;
therefore, the procedure provided in the Regulations was to be set in motion by the respondent
(plaintiff) as his status was of consumer, defined by Section 2 (1) (iv) of the Ordinance XVII of
2002.
12. The Regulations 2003 contained complete procedure to be adopted not only by a
complainant for submitting a complaint, but also by the Authority on receiving thereof to redress
the grievance s of the complainant against a licensee or a dealer. Paras -4 to 8 of the Regulations
2003 are relevant. Para -9 is with the right of appeal pursuant to Section 12 of the Ordinance
XVII 2002. While a power to recall a complainant case also lies with the Auth ority as contained
in Para -10 of the Regulations. In addition thereto Section -11 of the Ordinance XVII of 2002
provides a right of filing a written complaint to the Authority against a licensee for contravention
of any provision of the Ordinance XVII of 20 02 or of any Rule or Regulation by an interested
person and a right of appeal available under section 12 of the Ordinance XVII of 2002. It is to
remind that the right of filing of a complaint only becomes available when a person aggrieved
has already sough t redress from the licensee pursuant to Complaint Resolution System. Para 5 of
the Regulations is clear enough to the effect.
13. In view of the quoted provisions an alternative remedy was available to the respondent
(plaintiff) in his status as of consu mer of natural gas against the Company (present petitioners),
but he avoided. In addition it was also not denied that the plaintiff (respondent) was a consumer
of natural gas and was in contract with the Company (present petitioners) for supply of gas for
domestic use. The meter was also installed on the premises, which was admittedly removed and
the connection was disconnected on the allegation of tampering. The execution of contract
between the parties for the purpose was admitted by the parties, but none of them (parties) placed
on the record the original or copy of the contract. Only a pro forma of the contract was produced
before this court for perusal. The perusal thereof reveals that clause No. 21 is with the title
dispute resolution, and reads as und er:
"21. Dispute Resolution. --In the event of any difference of dispute arising out of or in
connection with the contract between the company and the consumer which cannot be amicably
resolved, it shall be referred on the date of commissioning of gas su pply shall apply.
The clause failed to convey any meaning. It seems that there was some misprinting which
was never corrected. Thus the matter is to be dealt with the procedure provided in the
Regulations 2003 for the purpose.
14. The outcome of the discussion is that the Statute provides a proper procedure for
resolution of dispute between a consumer and a licensee and the Regulation framed thereunder
are in addition thereto. Thus the provisions of law and Regulations were to be adhered to by the
parties. The respondent (plaintiff) required to set into motion the relevant provisions and to avail
the provided remedy, but he directly approached a court of civil jurisdiction for declaration to the
effect which was an error. The matter pertains to natural gas, thus to be governed by the
Ordinance XVII of 2002, and by the Rules and Regulations framed there -under. The alternate
remedy provided by the law and the Regulations was to be availed at the first instance by the
respondent (plaintiff), while a civil suit would be the last resort, but it was other way round. In
presence of the Regulations 2003, a civil suit was not maintainable without availing of the
remedy provided therein for redressal of the grievances of a consumer against a licensee.
15. In vie w of the above discussion the petition is allowed. The judgment dated 26th April
2010 of Senior Civil Judge -I Quetta and judgment dated 15th December 2010 of Additional
District Judge -I, Quetta are hereby set aside. Resultantly the suit filed by the plaint iff
Najeebullah stands dismissed being not maintainable. There shall be no order as to costs.
Decree sheet be prepared.
AG/47 -Bal Revision alloweThis 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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