2010 Y L R 3173
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
GENERAL MANAGER, WTR, PTCL, QUE TTA and others ---Petitioners
Versus
Messrs DAILY MEEZAN and others through 1 -A Muhammad Ali 1 -B---
Respondents
Civil Revisions Nos. 15 and 17 of 2004, decided on 7th July, 2010.
West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 81---Specific Relief Act (I of 1877), Ss.42 & 54 ---Recovery of outstanding dues as land
revenue ---Notices for ---Suit for declaration and permanent injunction --Plaintiff was
aggrieved of two notices issued by defendant under S.81 of West Pakistan Land Revenu e
Act, 1967 whereby the plaintiff was directed to deposit outstanding dues of telephone
connection within 15 days ---Trial Court decreed suit filed by the plaintiff, but on filing
appeal by the defendant against judgment and decree of the Trial Court, Appel late Court,
partially allowed appeal and both the plaintiff and defendant filed revision against judgment
of the Appellate Court below ---Case of the plaintiff was that old telephone number was
changed into new number; and. that dues were already paid up -to-date, but notices were
illegally issued and his phone was disconnected illegally ---Plaintiff though in his plaint and
through evidence had tried to establish that nothing was outstanding against him, but
documents placed on record had revealed that the pl aintiff had made clear admission about
outstanding dues and requested for payment in instalments ---Plaintiff had further made
request for not disconnecting his telephone and also for restoration of the same in his letter ---
Record had established that the p laintiff was subscriber of both, old and new telephone
numbers/connections and that amount in respect of dues was outstanding against him, which
was not paid despite undertaking given by him time and again --Plaintiff could not take any
adverse plea before the courts, only in order to avoid the amount for which he was surely
liable to pay ---Plaintiff being the defaulter, was not entitled for any concession ---Plaintiff had
completely failed to make out any case in his favour, while defendants had established their
contention.
Adnan Ijaz for Petitioners (in Civil Revision No. 15 of 2004).
Mian Badar Munir for Respondents (in Civil Revision No. 15 of 2004).
Mian Badar Munir for Petitioners (in Civil Revision No. 17 of 2004).
Adnan Ijaz for Respo ndents (in Civil Revision No. 17 of 2004).
Date of hearing: 23rd April, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Above titled both the petitions are filed against same
judgment made on 24 -12-2002 by Senior Civil Judge -I, Quetta and 17 -10-2003 by Additional
District Judge -V, Quetta, in order to avoid any sort of contradictory orders both the petitions
are decided through this order.
In petition No. 15 of 2004 the petitioners assailed both the judgments dated 24 -12-2002 and
17-10-2003 by trial and appellate Courts, whereby the suit has been decreed in favour of
respondent (Daily Meezan) and appeal was partially accepted, while decree was partially
maintained. It is their contention that the Courts below failed to appreciate the evidence
produced by them, further presumption of truth is attached with their record, which was not
rebutted. The admissions made by the respondents thereby accepting the liability are not
appreciated by the Courts below. They have prayed for setting aside of imp ugned judgments
and dismissal of suit filed by the respondents.
The petitioners (Daily Meezan) in Revision Petition No. 17 of 2004 being aggrieved of
judgment dated 17 -10-2003 of Additional District Judge -V, Quetta, whereby the judgment
passed by Senio r Civil Judge -1, Quetta was partially set aside, preferred instant petition on
grounds that the impugned order is contrary to law and facts. Further, the appellate Court
only heard arguments in respect of application under section 5/14 of Limitation Act, w hile
without hearing arguments on main appeal decided the appeal, without considering the oral
and documentary evidence arrived to wrong conclusion. He prayed for setting aside of
impugned judgment and upholding the judgment of the trial Court.
As per record the petitioner Daily Meezan filed a suit seeking declaration and permanent
injunction against the respondent (PTCL). He being aggrieved of two notices issued by the
respondent under section 81 of Land Revenue Act 1967, whereby he (the petitioner) wa s
directed to deposit an amount of Rs.5,71,814 within 15 days being arrears of Telephone
connection bearing No.75089. It is his case that the old number 75089 was changed into new
number 828142. Despite the fact that the dues were already paid up -to-date, notice was
illegally issued and the phone was disconnected. He was further threatened, while a post -
dated cheque amounting to Rs.1,00,000 of date 30 -8-2000 was obtained from him by help of
Levies. Thereafter, he approached the Authorities for return of che que, which was refused.
He prayed for declaring him lawful subscriber of Telephone No.828142, while respondents
have no right to disconnect the same, further prayed for restoration of it. The
respondents/defendants in reply strongly contested the contentio ns raised by the
petitioner/plaintiff. But admitted that the petitioner was subscriber of PTCL having telephone
No. 828142 which was converted from old No.75089 due to installation of digital exchange.
Further, asserted that petitioner was bad paymaster wh ile usually adopted delaying tactics for
payment. Though on several occasions he was allowed to make payment of dues in
instalments. Due to this conduct notice under section 81 of the Land Revenue Act was issued,
but the petitioner defrauded by issuing Che que No.50832901, dated 30 -8-2000 amounting to
Rs.100,000, which was dishonoured. It is their contention that the telephone No.75089
remained intact with Daily Meezan till 3 -8-1995 vide advice note No. J -2739 dated 3 -8-1995,
as such outstanding dues were of Rs.5,71,814 against the telephone. He filed instant suit to
get rid off the legal action taken against him. Prayed for dismissal of suit.
Out of the pleadings of the parties issues were framed. Four witnesses appeared from side of
the petitioner, whil e Jamil -ur-Rehman recorded his own statement as plaintiff, in rebuttal the
respondents only recorded statement of their representative. On conclusion of trial the suit
was decreed in favour of the plaintiff through judgment dated 24 -12-2002 by trial Court.
Feeling aggrieved of the same the respondents (PTCL) preferred appeal, which was decided
'through judgment made on 16 -10-2003 by Additional District Judge -V, Quetta, whereby the
appeal was partially allowed. The petitioner still not satisfied with the ord er preferred present
petition for setting aside of appellate order and upholding of order and decree of the trial
Court.
The main contention in instant petition is that the appellate Court only heard the application
submitted under sections 5/14 of Lim itation Act, instead of deciding this point the main
appeal was disposed of without hearing them. The petitioner placed on record the order
sheets maintained by the appellate Court. The perusal of the same reveals that through order
dated 8 -5-2003 the case was fixed for arguments on appeal, which were heard on 8 -8-2003
and appeal was reserved for order. The appellate Court while deciding the main appeal at first
instance gave findings on point of limitation, whereafter, decided the matter on merits. The
petitioner has failed to produce anything contrary to the same to establish his contention. The
record shows that the counsel for the parties were heard by the appellate Court. The
contention raised by the petitioner has no force.
Keeping in view the plea dings of the parties the matter in issue are the two notices issued by
the respondents under section 81 of Land Revenue Act for recovery of Rs.5,71,814 as
outstanding dues in respect of Telephone No.75089. According to the petitioner as he was
regularly pa ying the dues thus nothing is outstanding against him. Further, the old Telephone
No.75089 was changed in new number 828142. As such he was no more subscriber of old
number after August, 1993, thus not liable to pay the amount in question. The respondent o n
the other hand admitted the fact that previously the petitioner was subscriber of PTCL having
Telephone No.75089 which was later on converted to number 828142 due to installation of
Digital Exchange. It is further an admitted position that no dues are ou tstanding in respect of
new number, which is admittedly paid up -to-date. The dispute is only to the extent of dues of
old Telephone number. The second part of the matter in issue is disconnection of telephone
No.828142 which is claimed to be illegal by the petitioner, as no dues are outstanding in
respect of new number.
Keeping in view the above mentioned admitted facts the findings arrived by both the Courts
below are not proper nor based on material present on record. Despite admission of the
responde nt that old number was converted into new number being digital the appellate Court
comes to the conclusion that both the numbers are separate while having no connection with
each other. While the trial Court also comes to the conclusion that after 1993 the old number
was not in use of the petitioner. Both the views are erroneous. A fact which is specifically
admitted in pleadings by the parties is not required to be proved through oral evidence and on
contrary evidence that too oral no reliance can be made.
Apart from the same though the petitioner in his plaint and through evidence tried to establish
that nothing is outstanding against him in respect of dues of telephone charges. But perusal of
documents placed on record reveals that the petitioner made clear admission about
outstanding dues and requested for payment in instalments, further made request for not
disconnecting the telephone No. 828142 and also for restoration of the same in his letters
issued on different dates addressed to the respondents . The letter produced and exhibited as
Exh.D/3, Exh.D/5, Exh.D/6, Exh.D/10, Exh.D/11 & Exh.D/12 are the relevant letters issued
by the petitioner seeking time for payment of dues, avoiding of disconnection and also in
some for restoration of the Telephone connection. Though the petitioner while admitting
contended that the said letters/writings were obtained from him forcibly. But he failed to
establish his contention, as he never approached Authorities or even any Court complaining
the coercive methods ado pted by the respondent at relevant time. Even in present suit he
sought no relief to same extent. As far as issuance of cheque is concerned, the petitioner
while admitting the same asserted that the cheque was forcibly obtained from him being
threatened hi m for arrest. No evidence or material in same respect has been produced by him
in order to establish the same. His contention to this extent also remained unproved. But this
fact has come on record that said cheque was issued by the petitioner in respect o f payment of
outstanding dues, which was dishonoured. This shows that nothing was paid by the petitioner
in respect of outstanding dues, which were otherwise admitted.
In addition to the same certain other documents are placed on record, which are not
considered by both the Courts. Exh.D/17 is letter issued by General Manager, Western
Telecommunication Region Quetta to Senior Accounts Officer, Telephone Revenue Quetta
for recovery of outstanding dues amounting to Rs.4,14,365 in instalments of Rs.10,000 per
month in respect of Telephone No.75089 from subscriber of the phone i.e. Daily Meezan.
This letter bears date 7 -7-1993. Exh.D/22 is the manual Telephone bill of Rs.5,71,814, dated
26-2-2000, while Ex: D/25 and Exh.D/28 are orders for disconnection of w orking telephone
against defaulter connection, both are issued on 28 -6-2000 and 4 -9-2000. As per contents of
the same new Telephone No.828142 is working against the defaulted No.75089 in defaulter
premises/in the name of defaulter, thus to make the default er to pay arrears of Rs.5,71,814 his
working Telephone No.828142 be disconnected. The existing telephone connection was
disconnected by the respondent, it is also an admitted position. These documents are not
rebutted by the petitioner.
In view of abov e discussion it has been established that the petitioner was subscriber of both
the Telephone numbers/connections, while as per his own admissions made in the letters
issued by him amount in respect of dues are outstanding against him, which was not paid
despite undertakings given by him time and again. The amount which is claimed by the
respondent as dues of Telephone No.75089 is also not denied by the petitioner in his letters
admittedly issued by him, as such, thereafter, he cannot take any adverse plea before the
Courts, only in order to avoid the amount for which he is surely liable to pay. The petitioner
being the defaulter, thus not entitled for any concession. As surely the new telephone
No.828142 is working against the defaulted telephone No.75089, therefore, without payment
of outstanding dues the present number i.e. 828142 cannot be restored. The fact that the dues
in respect of new number has been paid make less difference in the circumstances. Both the
Courts below misappreciated the material pre sent on record and come to the wrong
conclusion which are liable to be set aside.
In view of above discussion the petitioner (Daily Meezan) has completely failed to make out
any case in his favour, while on the other hand the respondents/petitioners in Civil Revision
Petition No.15 of 2004 have established their contention, therefore, the Revision Petition
bearing No.15 of 2004 is hereby accepted, while revision petition bearing No.17 of 2004 is
dismissed being without merits. Thus judgment dated 24 -12-2002 of Senior Civil Judge -I,
Quetta and judgment dated 17 -10-2003 of Additional District Judge -V, Quetta are hereby set
aside. The suit filed by the petitioner/plaintiff (Messrs Daily Meezan) is hereby dismissed
being devoid of merits.
No orders as to costs.
H.B.T./82/Q Order accordingly.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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