PLJ 2025 Quetta 34 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR AND SHAUKAT ALI RAKHSHANI , JJ.
M/s. R.L PAPERS BOARD MILLS and others --Appellants
versus
M/s. SUI SOTHERN GAS COMPANY LIMITED etc. --Respondents
RFA Nos. 37, 38, 39 & C.M A. No. 49 & 50 of 2021,
decided on 19.4.2023.
Gas Theft Control & Recovery Act, 2016 (XI of 2016) --
----Ss. 7 & 13--Suits for recovery --Decreed --Direct use of gas --Reversal of meter --Installation of
false meters --Failure to payment of gas bill --Leave to defend --Refused --Power of gas utility
Court -- Objection of jurisdiction--Application under Order 7 Rule 11 of CPC was also filed by
appellants for rejection of plaint which remained on file for a considerable period, but despite
several hearings it was not decided, which was obligatory upon Gas Utility Court to had had decided its fate at very inception of proceedings, but by not doing so, Trial Court had erred in law, which needs to be mended with and corrected accordingly-- Trial Judge of Gas Utility Court
had left material question of law and facts mentioned in preceding paras unattended, without rendering its finding thereupon; impugned judgments and decrees could not be allowed to hold
field, as such, same merits to be set at naught --Appeals allowed.
[Pp. 41 & 42] B & C
Gas Theft Control and Recovery Act, 2016--
----S. 4, 5--Jurisdiction --A Gas Utility Court is empowered with exclusive jurisdiction under
Section 4 & 5 of Act of 2016, with a dual jurisdiction, such as to exercise civil one hand as well
as criminal jurisdiction on other so envisaged under clause (a) and (b) of Section 5. [Pp. 36
& 37] A
M/s. Muhammad Riaz Ahmed & Bilal Ahmed, Advocates for Appellants (in RFA No. 37/2021).
Syed Ayaz Zahoor , Advocate a/w Makhdoom -ur-Rehman, Law Officer SSGCL for Respondents
(in RFA No. 37/2021).
Mr. Rizwan Ali Sooomro, Advocates for Appellants (in RFA No. 38/2021).
Syed Ayaz Zahoor , Advocate a/w Makhdoom -ur-Rehman, Law Officer SSGCL for Respondents
(in RFA No. 38/2021).
M/s. Muhammad Riaz Ahmed & Bilal Ahmed, Advocates for Appellants (in RFA No. 39/2021).
Syed Ayaz Zahoor , Advocate a/w Makhdoom -ur-Rehman, Law Officer SSGCL for Respondents
(in RFA No. 39/2021).
M/s. Ilahi Baksh Mengal, Advocate for Appellants (in C.M. Appeal No. 49 & 50/2021).
Syed Ayaz Zahoor , Advocate for Respondents (in C.M. Appeal No. 49 & 50/2021).
Date of hearing: 11.4.2023.
JUDGMENT
Shaukat Ali Rakhshani, J. --The appellants have brought before us the captioned appeals
against the judgments & 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 &
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/ -& 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 & 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 Sectioon 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 &
decrees were pronounced, following the above appeals.
3. Learned counsel for the appellants inter alia contended that after submission of the
writtern 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 & 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 & 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 & 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 & 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 Section 4 & 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 clause (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 Section 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 (O.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 Sectioon 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 Sectioon 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 Sectioon 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 7 Rule 11 of CPC 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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