Mst. Tamam Jana and others Vs SNGPL and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department) Civil A al No.16-B/2 2.

Msl. Tamam Jana and others Vs. SNGPL and olhers

JI]DGMENT

Date of hearing 19.02.2026

For appellants:- Mr. Ahmad Farooq Khattak, Advocate & Malik Samiullah Khan, Advocate (through videoJink)

For respondents:- Muhammad Khan Khattak, Advocate' (through video-link)' *:t+*****

SABIT ULLILH KHAN. J.- Through this civil appeal the appellants, who are the legal heirs of deceased Noor Wali Khan, call in question the legality and propriety of the judgment and decree dated 19.01.2022 passed by the leamed Additional District Judge-IVGas Utility Court, Bannu in Recovery Suit No'70/l of 2021, whereby the leamed trial Court dismissed the appellants' application for leave to defend under section 7(2) of the Gas (Theft, Conrol and Recovery) Act,20l6 (herein after referred as an Act 2016) on the ground of limitation and, proceeding under the summary provisions of the statute, decreed the suit filed by respondent No.l for recovery of Rs' 156,930/- along with surcharge at the rate of 10%.

2.The relevant facts, as bome out from the record, may be briefly noticed. Respondent No.l instituted a suit on 04'01'2021 before the Gas Utility Court, Karak against the predecessor of the

(S.E) IION'ELE MN" JUSTICE SABIT I,ILTAH KIIAN

appellants, namely Noor Wali Khan for recovery of an amount of Rs.156,930/- alongwith a l0% surcharge. During the pendency of the proceedings the said defendant expired whereupon the present appellants being his legal representative were impleaded as defendants in the suit and summons were issued to them. The record reflects that on 12.10.2021, the appellants entered appearance through their counsel and subsequently filed wriuen statement on20.11.2021. The plaintiffcontested the application for leave to defend. After hearing learned counsel for the parties, the leamed trial Court dismissed the application for leave to defend the claim and consequently the suit/claim was decreed on 19-01.2022 and the suit was converted into an execution petition u/s l0 of the Act,2016. Feeling aggrieved by the said order the appellants have approached this Court through the present appeal.

3.Leamed counsel for the appellants contended that the decree passed by the trial Court suffers from serious jurisdictional defects.

It was argued that the plaint filed by the respondent did not comply with the mandatory requirements of section 6 of the Act 2016, which govems the form and contents of the plaint in proceedings under the statute. It was further contended that the appellants were never served in accordance with the stafutory requirements contained in section 4 ofthe Act20l6, and therefore the question of limitation for hling an application for leave to defend under section 7(2) of the Act 2016 could not arise. It was submitted that the summons issued to the appellants did not disclose the special statutory character of the proceedings nor did they inform the (S.B) HON'BLE Mf," JUSTICE SABIT ULINH KIIAN

defendants that they were required to file an application for leave to defend within nrenty-one days, failing which a decree could be passed without trial. Learned counsel thus argued that the impugned decree was the result of a misapplication of the statutory scheme and deserved to be set aside.

1.Conversely, leamed counsel appearing on behalf of the that respondent supported the impugred judgment and contended the appellants had entered appearance before the Court and therefore could not question the validity of service at a belated

was stage. It was submitted that the leave to defend application the admittedly filed beyond the statutory period and therefore leamed trial Court had rightly dismissed the same'

5.I have heard the leamed counsel for the parties and have carefully examined the record.

The submissions advanced by the leamed counsel for the

L

parties give rise to the following questions for determination:

i)Whether the plaint Jiled by respondent No'l complied with the

mandatory requirements of Section 6 of Act' and whether it

validly attracted the special summary jurisdiction of the Court?

with

ii)Whether the appellants were duly semed in accordance summons adequately Section 4 of the Act 2016, and whether the ( of the disclosed the statutory natwe and consequences proceedings?

bar contoined in

iii)Whether, in the absence of valid semice' the Section 7 (2) of the Act 20 t 6 was attacted? exercised its w') Whether the learned trial Court correctly and jurisdiction in rejecting the application for leave to defend dismissing the suit?

v)What relief, if any' shouldfollow?

HON'BLE MR JUSTICE SABIT U LLAH

K}IAN

(SB)

7.Admittedly, the Act is a special statute enacted to provide a mechanism for adjudication of offences relating to gas theft and for

recovery of dues by the gas utility company' It creates Special Courts and prescribes a sunmary procedure distinct from the ordinary civil process under the Code of Civil Procedure, 1908' It

is a settled principle of law that where a statute confers special jurisdiction coupled with summary poweni and curtails the goveming such ordinary rights of defence; the statutory conditions adjudication must be strictly complied with' Jurisdictional facts

must exist and must be demonstrably satisfied on the record;

otherwise, the assumption of jurisdiction stands vitiated' The Acl contemolates a dislincl orucedural framework" a) Section 6 of the Act 20 t 6 regulates the form and contents of the plaint.

b) Seclion 4 of the Act 2016 prescribes the mode of service of summofrs.

c) Section 7(1) and (2) of the Act 2016 govern the filing ofleave to defend and the consequences of default'

7(2) of E The summary consequences envisaged under Section they be the Act 2016 cannot be invoked in isolation' nor can divorced from prior compliance with mandatory requirements contained in Sections 4 and 6 ofthe Act 2016' 4 g. Section 6(2) and (3) of the Act 2016 require that a plaint

by the gas filed by the gas utility company must be supported evidence establishing agreement, gas deed, or other documentary

the contractual obligation between the parties' It must specifically

state the quantity ofgas consumed or extacted' the amount paid (if

HON'BLE MR. JUSTICE SABIT ULIIIH

KIIAN

(s.B)

any), the dates ofpayment, and the total dues relating to supply and consumption up to the date of institution of the suit'

10.The object of this provision is manifest: before invoking summary jurisdiction, the plaintiff must place before the Court and

the defendant a clear, complete, and duly documented account of the alleged liabilitY.

11.The contoversy raised in the present appeal essentially revolves around the interpretation and application of the provisions

of the Act 2016. The said enactment is a special statute which establishes a distinct procedural regime for adjudication ofdisputes

provides relating to gas theft and recovery of gas dues' The statute for the establishment of Special Courts and prescribes a summary procedure for disposal of suits instituted by gas utility companies' 12, It is a well-settled principle of law that where a statute powers which confers special jurisdiction coupled with summary the general curtail the ordinary rights of defence available under civil law, the statutory conditions goveming the exercise of such

jurisdiction must be strictly complied with' The assumption of jurisdiction by a special Court depends upon the existence of the jurisdictional facts which must be demonstrably established on record. If the statutory prerequisites are not fulfilled' the exercise

of summary jurisdiction becomes legally unsustainable' 13, The procedural framework of the Act 2016 is structured the institution and around certain essential provisions regulating 6 of the Act 2016 adjudication of suits under the statute' Section Section 4 of the Act govems the form and contents of the plaint'

(sB)HON'BLE MR. JUSTICT SABIT ULLAH XIIAN

2016 prescribes the mode and manner of service of summons upon the defendant. Section 7 ofthe Act20l6 regulates the filing ofan

application for leave to defend and provides the consequences of default. Section 8 provides a remedy for setting aside a decree where suffrcient cause for non-service is established' These provisions form an integrated statutory scheme and cannot be interpreted in isolation. A careful reading of section 6 of the Act

2016 shows that the legislature has prescribed specific requirements regarding the particulars to be disclosed in a plaint

filed by a gas utility company. Subsections (2) and (3) of the Act 2016 require that the plaint must be supported by documentary material such as the gas agreement, gas deed or other documentary evidence establishing the contractual obligation between the

quantity of parties. The plaint must also specifically disclose the the gas consumed or extracted, the amount paid by the consumer' dates of such payments, and the total amount of dues relating to

of the suit' supply and consumption up to the date of institution that before The evident purpose of this provision is to ensure /l invoking the special sunmary jurisdiction of the Court' the t( plaintiff places before the Court and the defendant a clear' complete and documented account of the alleged liability' This

against arbitrary or statutory requirement serves as a safeguard unexplainedclaimsandenablesthedefendanttomeaningfully exercise the right of defence within the tuncated procedural

timeline provided under the statute'

HON'ELE MR JUSTICE SABIT U LI,uI

XIIAN

(SB)

11.A perusal of the plaint filed in the present case reveals that although a lump sum figure of alleged dues has been mentioned' the statutory particulars envisaged by section 6 of the Act 2016 have not been set out in a structured and specific manner' The record does not contain a detailed statement of gas consumption' applicable tariff rates, tariff history or an itemized computation of

the bill in the form contemplated by the statute' The teamed trial Court did not examine this aspect and proceeded directly to the sunrmary stage under section 7 of the Act 2016' lt is trite law that

where the legislature prescribes specific contents as a condition

precedent to the exercise of special jurisdiction, such requirements are mandatory in nahre and not merely directory' Failure to examine compliance with section 6 of ttre Act 2016 strikes at the

root of the jurisdiction exercised by the trial Court' Equally significant is the question of service of summons'

15.Section 4(4) ofAct, 2016 provides that upon presentation of served through the plaint, sunmons in the prescribed form shall be due' bailiff or process server, by registered post acknowledgment newspaper' The by courier service, or by publication in a specified statute further provides that service duly effected in the prescribed

manner within twenty-one days shall be deemed to be valid provision is to ensure service. The legislative intent underlying this notice of the ttrat the defendant receives actual and effective proceedings. The enumerated modes of service are not mere

parte decrees and formalities but constitute safeguards against ex Substituted service' surnmary adjudication without adequate notice'

(SB) IION'BLE MR JUSTICE SABIT ULLAH KIIAN

including affrxation, is recognized in law as an exceptional measure which may be resorted to only when the Court is satisfied

that the ordinary modes of service have been diligently attempted but have failed.

16.In the present case the record reflects that the summons that were served through affixation alone' There is no indication the statutory modes of service prescribed under section 4 were exhausted or even attempted with due diligence' Nor is there any

substituted order of the Court recording reasons or satisfaction that service was justified in the circumstances of the case' In the

treated as valid absence of such compliance the service cannot be mode of statutory service. Apart from the irregularity in the were also service, the contents of the summons themselves not mention deficient. The summons issued to the appellants did that the proceedings had been instituted under the Act 2016' They

alsodidnotinformthedefendantsthattheproceedingswereofa to defend within sunmary nature, requiring them to apply for leave twenty-one days, failing which they would be liable to suffer a

a summary statute decree against them' A sunmons issued under must clearly and explicitly inform the defendant of the special

limited time statutory character of the proceedings and the available for frling leave to defend' The specimen of summon as

in form 4 in provided by section-4 of the Act 2016 i'e' a summon Appendix-B to the code of Civit Procedure Code 1908 is

reproduced as under:-

HON'BLE MR JUSTICE SABIT ULLAH

K}IAN

SU q.drl.t oo.r (SB)

NO. 4 SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSIRUMENT (O. 37' r. 2) (Title) To Name, description and place ofresidence] WHEREAS has institute a suit against you under Order XXXVII ofthe Code of Civil Procedure, 1908, for Rs. balance ofprincipal and interest due to him as the ofa 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 ofRs. and the sum ofRs.

for costs I [together with such interest, if any, fiom the date of the institution of the suit as the Cowt may orderl.

Leave to appear may be obtained on an application to the Cout suPPorted by affrdavit 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 ofthe Court, this day of 19 , Iudge.

However, the leamed trial Court ignored the said format of surlmon provided under section-4 of the Act 2016. Such information is essential because the defendant's right to contest the suit is conditional upon compliance with the strict procedural timeline prescribed by the statute. Failure to disclose these essential elements renders the summons defective in substance and deprives the defendant of a fair opportunity to defend the claim' Once it is held that the appellants were not served in accordance with the statutory requirements of section 4 of the Act 2016 and that the sufilmons themselves were defective, the entire foundation of the trial Court's reasoning collapses. The concept of "first seryice" under section 7(2) of the Act 2016 arises only where there has been lawful service in accordance with the statute' Limitation cannot conrmence from an irregular or incomplete act of service' The learned trial Court treated 04.10.2021 as the date of first service without examining the legality of the service itself and

(SB) HON'BLE MR. JUSTICE SABIT ULLAH XIIAN

without determining whether the statutory prerequisites for sunmary proceedings had been satisfied. The rejection of the appellants' application for leave to defend was therefore based upon a misapplication of the statutory scheme. It must also be kept in view that procedural rules are intended to facilitate the adminishation ofjustice and not to defeat substantive rights. The superior Courts have consistently emphasized that procedural provisions should not be applied in a manner that results in grave injustice or deprives a parry of the opportunity to contest a claim on merits. Particularly in matters involving civil liability and disputed accounts, Courts ought to lean in favour of adjudication on merits rather than technical non-suiting.

U. The appellants in the present case are the legal heirs of the deceased defendant. They entered appeaxance before the Court and opted to contest the claim by filing an application for leave to defend. In the absence of any valid service and adequate statutory notice, their application could not lawfully be dismissed as time- barred. The Gas (Theft, Control and Recovery) Act' 2016 undoubtedly aims to provide an expeditious mechanism for recovery of dues by gas utility companies; however, even in sunmnry proceedings the flurdamental requirements of notice, fair opportunity and due process cannot be dispensed with' The provisions of a special statute must be interpreted in a manner consistent with the broader principles of justice and faimess embodied in the legal system.

(S.B) HON'ELE MR. JUSTICE SABIT ULLA}I KIIAN

Ir.,-q..1 1 - - ll -

18.The record further demonstrates that the plaintiff, instead of drafting the plaint in accordance with the statutory provisions discussed above, merely adopted a proforma-type plaint by filling in the blanks and filed the same for flrther proceedings' Such a plaint does not conform to the requirements of the relevant provisions of law.

19.For the foregoing re.rsons, I am of the considered view that the impugned judgment and decree dated 19.01'2022 cantot be sustained the eyes of law. Consequently, the instant civil appeal is allowed. The judgment and decree passed by the learned Additional District Judge-IVGas Utility Court' Bannu are hereby set aside. The case is remanded to the learned trial Court with directionstorequiretheplaintifftofileanamendedplaintstrictly in accordance with the statutory provisions of the Gas (Theft' Control and Recovery Act,2016. The appellants shall also be afforded a fair opportunity to file an amended application for leave

to defend in accordance with law. The leamed trial Court shall' thereafter'decidethematterafreshafterhearingthepartiesand providing them a full and fair opporhrnity of hearing' Announced.

.IU DG E

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(s.B) HON'BLO MR. JUSTICE SABIT UL LAH KHAN