2013 Y L R 1559
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD SALEEM through Special Attorney and another ---Appellants
Versus
SUI SOUTHERN GAS COMPANY LTD. and another ---Respondents
Regular First App eals Nos.1 and 21 of 2012, decided on 11th March, 2013.
Civil Procedure Code (V of 1908) ---
----O.XX, R.5 ---Specific Relief Act (I of 1877), Ss.29, 42 & 54 ---Suit for declaration, cancellation of instrument
and injunction ---Findings of issues, reason o f---Trial Court neither referred the gist of evidence nor discussed the
same ---Trial Court was required to go through the record independently and reproduce the material portion of the
evidence and resolve the issues with reference to the evidence by analy zing the same ---Trial Court neither
accepted the evidence of either party nor rejected the same ---Arbitrary and mechanical conclusions were neither
legal and lawful, nor rational, reasonable, plausible, and justifiable ---Judgment/decree had been passed in violation
of mandatory provisions of law ---Appeals were accepted and case was remanded to the trial Court for decision
afresh.
Mujeeb Ahmed Bazai for Appellant (in Regular First Appeal No.1 of 2012).
Munir Ahmed Langove for Appellants (in Regular Fir st Appeal No.1 of 2012).
Munir Ahmed Langove for Appellants (in Regular First Appeal No.21 of 2012).
Mujeeb Ahmed Bazai for Respondent (in Regular First Appeal No.21 of 2012).
Date of hearing: 13th November, 2012.
JUDGMENT
MUHAMMAD NOOR ME SKANZAI, J. ---By this common judgment, we propose to dispose of Regular First
Appeals Nos.1 and 21 of 2012, as both the appeals have been filed against the same judgment/decree and common
questions of facts and law are involved.
2. The brief facts, relev ant for the disposal of instant appeals are that the appellant/plaintiff (in R.F.A No.1 of
2012) instituted a suit for Declaration Cancellation of Gas Bills and Permanent Injunction against the respondent in
the Court of Senior Civil Judge, Hub. It was ave rred in the plaint that the plaintiff/appellant is running business of
Hotel by the name and style of 'Awaran Hotel', situated at RCD Road Hub. The appellant applied for installation of
Gas Meter at his Hotel and the respondent installed Meter No.21372378M . On 28th January, 2003 abruptly Gas
pressure became low and on checking, it transpired that the Meter is not running, whereupon; the plaintiff, on the
next day early, in the morning, informed the respondent consumer service department and duly obtained re ceipt
regarding the complaint so made by him. Despite complaint, repeated verbal, telephonic messages and visit of
respondent's official at the hotel no efforts were made for the correction of the meter. So much so, in the month of
August, 2003, the appell ant again approached the respondent and showed earlier/previous receipt, but all in vain.
On 9th August, 2003, the appellant received a letter issued by Billing Manager Commercial Department, wherein
an estimation of unregistered past gas was sent and tota l amount of the same was shown Rs.28,134.68. It was
clearly mentioned in the letter that the amount of Rs.28,134.68 is the amount of ceased meter which could not
register the flow of gas due to some mechanical defect. On receipt of said letter, the appella nt visited the office of
respondent with the request that he has such the bill of Rs.28,134.68 is without any justification and liable to be
withdrawn. The respondent instead of withdrawing the said bill directed the appellant to pay another amount of
Rs.36,000 on the ground that the appellant has tampered the previous Meter No.21372378. According to plaintiff,
the meter regarding which he had made complaint, was replaced of after six months and at the time of replacement
no allegation of tampering was leve lled. In fact, after installation of Meter No.20234023, the officials of
respondent visited the hotel of plaintiff and demanded illegal gratification. On refusal by the plaintiff, they
threatened the latter for dire consequences and to achieve the object w ithin the month of October, 2003, Meter
No.8499611 was installed without any reason and justification. It was further averred in the suit that on failure of
respondent to extract illegal gratification from appellant, they issued a false and fictitious bill for the period from
January, 2001 up to May, 2003 and demanded arrears of Rs.51,984.
3. The suit was contested by defendant/respondent by way of filing written statement, wherein besides raising
certain preliminary objection the claim of the appellant was resisted on merits.
4. The learned trial Court, out of the pleadings of the parties framed following issues: --
(1) Whether the suit is not maintainable in view of the P.L.Os 1, 1.1, 2 and 3 of the written statement?
(2) Whether the impugned bill/ notice for payment of the Gas consumption charges, otherwise disconnection of
gas supply issued by the defendant -company is baseless and fabricated?
(3) Whether the plaintiff is entitled to the relief claimed for?
(4) Relief.
5. Thereafter, the parti es were directed to adduce evidence in respect of their respective claims. The plaintiff
produced two P.Ws., whereas in rebuttal, the defendant adduced three D.Ws, besides representative of defendant
namely Saeed Ahmed recorded his statement.
6. The lea rned trial Court after hearing the parties and evaluating the evidence vide judgment/decree referred
to hereinabove, dismissed the suit and directed the plaintiff to pay gas charges for the period from July, 2001 to
May, 2003 amounting to Rs.310,000 (Rupee s Three lacs and Ten thousand) instead of Rs.741,334 (Rupees Seven
lacs Forty One Thousand and Three hundred thirty four). The judgment motivated both the parties to challenge the
impugned decree, resultantly, instant appeals were filed.
7. Learned couns el for the appellant in R.F.A. No.1 of 2012 and respondent in R.F.A. No.21 of 2012 argued
that the learned trial Court, while passing the judgment/decree impugned violated the provisions of Order XX Rule
5, C.P.C. as it failed to record findings on each i ssue separately. It was further argued that the learned trial Court
failed to take into consideration the documentary evidence relied upon by appellant. Learned counsel stressed that
while resolving issue No.2 the learned trial Court failed to record any c ogent reason and without any legal
justification directed the appellant to deposit Rs.3,10,000 despite of the fact that respondent totally failed to prove
the issue. The learned trial Court failed to discuss the evidence produced by the appellant and in a slipshod manner
formed opinion that the appellant is liable to pay an amount of Rs.3,10,000. Learned counsel emphasized that the
learned trial Court failed to appreciate the evidence in its true perspective. The respondent absolutely failed to
rebut/negate the claim of plaintiff, on the contrary the latter succeeded to prove that the demand of respondent was
illegal, unjustified and result of refusal of appellant to pay the illegal gratification but all these important facts
escaped notice of the learned tr ial Court. Lastly the learned counsel argued that as the judgment impugned herein is
result of misreading and non -reading of evidence, as such, the same is not sustainable under the law and liable to
be interfered with by this Court by way of decreeing th e suit filed by plaintiff.
On the other hand, learned counsel for respondent in R.F.A. No.1 of 2012 and appellant in R.F.A. No.21 of
2012 strenuously argued that the respondent by producing report fully proved that the appellant has tampered the
gas met er. He is legally bound to pay Rs.7,41,334 but the learned trial Court without any rhyme or reason directed
the appellant to pay Rs.3,10,000. Learned counsel canvassed that the respondent proved their claim by producing
trustworthy and confidence inspiring oral as well as documentary evidence but the learned trial Court by mis -
appreciating the facts drew conclusions that are neither legal nor factually correct and plausible.
8. We have considered the arguments advanced by the learned counsel for parties a nd perused record of the
case. The perusal of the record reveals that the trial Court resolved the preliminary objections raised by defendant,
in a mechanical way. For instance the trial Court while resolving preliminary legal objections Nos.1 and 2,
resol ved the issue by holding that since the plaintiff is residing within the territorial jurisdiction of this Court and
the cause of action also accrued to the plaintiff within the territorial jurisdiction of trial Court, the Court is
competent to adjudicate u pon the matter. The court was required to have adhered to the provision of Order XX,
C.P.C. and the matter should have been decided in the light of said provisions. As far as crucial issue i.e. issue
No.2 is concerned neither the trial Court referred the g ist of the evidence nor discussed the same meaning thereby
the trial Court failed to appreciate the evidence. In order to appreciate the evidence, legally the trial Court is
required to go through the record independently and reproduce the material portion of the evidence and resolve the
issue with reference to the evidence by analyzing the same. Bare perusal of the judgment makes it crystal clear that
the trial Court did not bother to reproduce the gist of evidence nor discussed the same. The trial Court n either
accepted the evidence of either party nor rejected the same but surprisingly directed the plaintiff to pay
Rs.3,10,000 to the defendant instead of Rs.7,41,334. The arbitrary and mechanical conclusions are neither legal
and lawful, nor rational, rea sonable, plausible and justifiable, as such are liable to be declared illegal, perverse and
without legal basis, that is why both the parties are not satisfied with the findings. Thus in such view of the matter,
we are of the considered opinion that the ju dgment/decree dated 29th December, 2011 has been passed by the trial
Court in utter violation of mandatory provisions of law, as such are not sustainable.
For the foregoing reasons, we are inclined to accept both the appeals, set aside the judgment/dec ree
impugned and remand the case to the trial Court with direction to rehear both the parties and decide the matter
afresh within one month after receipt of this judgment by specifically adhering the provisions of Order XX, Rule 5,
C.P.C. and the observati ons made hereinabove. Decree sheet be drawn.
AG/34/Q Case remanded.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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