Raja Azhar Hayat Vs ADJ etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No.19738 of 2021

Raja Azhar Hayat Versus

Additional District Judge / Gas Utility Court & others

JUDGMENT

Date of hearing: 04.06.2021.

Petitioner by: M/s Ch. Imran Raza Chadhar and Qasim Raza Chadhar, Advocates.

Respondent by: Mr. Umar Sharif, Advocate (SNGPL). Barrister Ameer Abbas Ali Khan, A.A.G., on Court’s call.

Research by: Mr. Ahmad Zia Ch., Civil Judge / Research Officer, LHCRC.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant petition, petitioner has challenged order dated 09.02.2021, passed by learned Additional District Judge / Gas Utility Court, Sahiwal, whereby petitioner’s application for setting aside ex parte proceedings dated 09.05.2016, as well as ex parte judgment and decree dated 21.11.2016, was dismissed.

2.Brief facts of the case are that respondent-SNGPL instituted suit for recovery against petitioner before Civil Court, wherein ex parte proceedings were carried out against petitioner on 09.05.2016 and ex parte evidence was also recorded. Thereafter, matter was transferred to learned Additional District Judge / Gas Utility Court. The said Court, after hearing ex parte arguments, decreed the suit ex parte vide judgment and decree dated 21.11.2016. Later on, petitioner filed application for setting aside ex parte proceedings as well as judgment and decree, which was contested by respondents No.2 & 3 by filing written reply. After hearing arguments, the

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application was dismissed vide order dated 09.02.2021. Hence, instant petition.

3.Learned counsel for petitioner submits that on promulgation of the Gas (Theft Control and Recovery) Act, 2016 (“the Act of 2016”), Civil Court lacked jurisdiction to entertain the matter, therefore, initiation of ex parte proceedings and recording of ex parte evidence by Civil Court, being without jurisdiction, are unsustainable. Adds that learned Gas Utility Court neither issued any process for appearance of petitioner nor itself recorded evidence, which is not proper exercise of jurisdiction. Further submits that petitioner was not served through any mode of service and he had no knowledge of pendency of recovery suit but these material aspects of the matter were not considered by learned Court below. Contends that summons issued for service of petitioner was returned with the report that petitioner was not residing at the given address but despite said report, no effort was made for service of petitioner on correct / complete address, hence, petitioner’s application was liable to be accepted and impugned order is unsustainable. In support, he has placed on record order dated 09.02.2021, passed by this Court in W.P.No.68060 of 2017 titled Tariq Mehmood v. Addl. District Judge, etc.

4.Conversely, learned counsel for respondent-SNGPL defends the impugned order.

5.Arguments heard. Available record perused.

6.Gas Utility Courts were created as per Section 3 of the Act of 2016, by appointing District Judges / Additional District Judges, with exclusive jurisdiction with respect to all matters covered by the said Act, and jurisdiction of other Courts in matters arising out of said Act was barred. The aforesaid Act came into force on 23.03.2016. In the instant case, suit for recovery, filed by respondent-SNGPL, remained pending before Civil Court, whereby ex parte proceedings were carried out against petitioner on 09.05.2016, and ex parte evidence was concluded on 05.10.2016.

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On transfer, Gas Utility Court did not issue any fresh process for appearance of petitioner and did not record evidence by itself rather proceeded to pass decree on the basis of proceedings undertaken and evidence recorded by the Civil Court. Needless to say that Gas Utility Court was obliged under the law to issue process / notice to petitioner to impart him information that the case had been transferred to it and in absence of such notice, petitioner was well within his rights to plead lack of knowledge regarding Court in which he had to appear. The argument that ex parte proceedings were carried out against petitioner, does not deprive him of a right to receive notice on transfer of suit. Reference can be made to Nemat Ali and others v. Mst. Bakhtawar and others (1995 MLD 484), Azhar Hussain Shah v. Messrs Harat Management (Pvt.) Ltd. through Managing Director (PLD 2009 Karachi 148), Mst. Nabila Taj and another v. Murad and 4 others (2021 CLC 757) and Pritam Bhatti v. Tilak Raj, (P&H) [2002 (1) ICC 481].

7.Perusal of record shows that the Process Server reported on summons issued for 26.01.2016, to the effect that petitioner shifted place of his abode at Hyderabad and this fact has also been noted by Civil Court in its order dated 26.01.2016. In spite of this, plaintiff did not take any constructive step for personal service of petitioner at correct address. The Court also did not obtain any affidavit from respondent / plaintiff that it had no knowledge about any other address of petitioner. Furthermore, in terms of Order V Rule 19 C.P.C., the Court was also required to examine the Process Server on oath, take further inquiry in the matter and declare that the summons were duly served, but it is not discernible from record that any such exercise was undertaken by learned Trial Court, rather it straightaway ordered publication in the newspaper. Therefore, it was not a proper service within contemplation of Order V Rules 19 & 20, C.P.C., hence, ex parte proceedings are unsustainable in the eye of law. Reference can be made to Ahmed Khan v. Haji Muhammad Qassim and others (2002 SCMR 664), Nouroz Khan v.

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Haji Qadoor (2005 SCMR 1877), Zulfiqar v. Muhammad Jan (2002 CLC 932), Municipal Committee, Gujrat through Administrator v. Deputy Administrator, Evacuee Trust Property, Gujrat and 3 others (2004 MLD 1170), Muhammad Younas and 4 others v. Additional District Judge, Jhelum and 2 others (2006 MLD 963), Sh. Mukhtar Ahmad and others v. Muhammad Saleem Bhatti and others ( 2013 MLD 1383), Jadoon Khan v. Abdul Karam and 3 others (2017 YLR 1031), Rasheed Ahmed v. Muhammad Asim and another (2019 CLC Note 68), Mst.Tameezan and others v. Muhammad Sharif (2021 CLC 25), Parasurama Odayar v. Appadurai Chetty and others (Madras) [AIR 1970 Mad 271 (FB)], Shila Nath Malik and others v. Balbhadra Sutradhar and others, [AIR 1992 Gauhati 121], Rajesh Kochhar v. Babu Ram (Himachal Pradesh) [1993 (3) LJR 457], Karuppan Chettiar v. Karuppiah (Madras) [1994 (2) CurCC 717], Baburao Soma Bhoi v. Abdul Raheman Abdul Rajjak Khatik, (Bombay) [2000 (1) BCR 306], Baijnath Mishrilal Kachhi v. Harishanker, (Madras) [2002 (1) ICC 639] and Santosh Kumar Navman v. Raja Amar Pratap Singh (Allahabad) [2011 (88) ALR

8.Needless to say that when a law desires an act to be done in a particular manner or form, it must be done in that manner alone otherwise the same would be termed as illegal and the proceedings as unsustainable. Reference can be made to Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015), The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 SCMR 1427), Shahdost Dashti v. Federation of Pakistan through Secretary Ministry of Inter-Provincial Coordination Government of Pakistan, through Secretary, Pakistan Secretariat, Islamabad and 5 others (2019 CLC 1750), Muhammad Hanif v. Revisional Authority and others (2020 CLC Note 36), Muhammad Ameer v. The State and

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another (2020 MLD 876) and Muhammad Sajid v. Judge Family Court and others (2020 CLC 1524).

9.In view of the above, instant petition is allowed and impugned ex parte proceedings as well as ex parte judgment and decree are set-aside. Consequently, suit shall be deemed pending before learned Gas Utility Court and petitioner shall file application for leave to defend within 10-days from first date of hearing before learned Gas Utility Court. The parties are directed to appear before learned Gas Utility Court on 21.06.2021 and learned Court shall decide the lis on merits strictly in accordance with law, preferably within a period of four months from today.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*