Chairman WAPDA vs M/S Sitara Marbles

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

JUDGMENT

Civil Revision No. 1510 of 2006.

The Chairman WAPDA & others...........Vs........... M/s Sitara Marbles Industry.

Date of hearing: 31.10.2014

Petitioner, by Gul Nazir Azam, Advoate.

Respondent: Nemo for respondents.

WAQAR AHMAD SETH, J: - This revision petition is directed against the judgment and decree dated 28.09.2006 passed in Civil Appeal No. 30/13 of 2006 whereby the Learned District Judge, Nowshera, dismissed the appeal of petitioners/defendants against the judgment and decree passed by the Learned Civil Judge-III Nowshera, vide his judgment and decree dated 20.03.2006.

2.Briefly stated facts of the case are that respondent/plaintiff had brought a suit against the petitioners/defendants for declaration and perpetual injunction to the effect that the respondent/plaintiff is regularly paying the Electricity Bills as and when received from the petitioners/defendants; that on

28.04.1998, the petitioners/defendants issued a bill amounting to Rs. 119002/- to the respondent/plaintiff wherein, the consumed units were shown as (817) and thereafter they disconnected the Electricity Supply of the respondent/plaintiff and on 11.01.1999 another bill of Rs. 2,3357/- for payment which is wrong illegal and ineffective upon the rights of the respondent/plaintiff.

The petitioners/defendants contested the suit by filing written statement wherein they raised legal and factual objections. From the divergent pleadings of the parties seven issues including the relief were framed and after recording pro and contra evidence of the parties the Learned Trial Court vide judgment and decree dated 30.11.2004, disposed of the case of respondent/plaintiff in the following manner:-

“In the light of my above

issue-wise discussion it is

clear that the bill to the

extent of Rs. 184,155/- is

not illegal and has been

issue by the defendants

legally, however, the billing

made by the defendants after

July/98, when they have

removed all their equipments from the Industry of the plaintiff on the basis of minimum charges of Rs. 3574/- is illegal and cannot be recovered from the plaintiff, therefore, the decree to the extent of rupees 2,45,572- 1,84,155 =61,417 (total amount)outstanding minus amount outstanding till July 1998 is passed in favour of the plaintiff against the defendants as they have already paid and deposited in court the amount of Rs.

1,00,000/- as per this decision they would be required to pay further amount of Rs. 84,155/-. The prayer of plaintiff to the extent of Rs. 1,84,155/- is hereby dismissed.”

3.Feeling aggrieved the respondent/plaintiff went an appeal and vide judgment and order dated

13.06.2005, the Learned Additional District Judge-II, Swabi, accepted the same and case was remanded back to the Trial Court for decision afresh in the light of the observation made therein and in the light of available record.

4.After remand the respondent/plaintiff did not produced any evidence and relied on the evidence earlier produced in the case while, the defendants/petitioners produced two witnesses. After hearing the learned counsel for the parties this time the Learned Trial Court vide his judgment and decree dated 20.03.2006 decreed the suit as prayed for in- favour of the respondent/plaintiff.

5.Dissatisfied from the aforesaid judgment and decree of the trial court, the petitioners/defendants preferred civil appeal No. 30/13 of 2006 which was dismissed by the Learned District Judge, Nowshera, through his judgment and decree dated 28.09.2006, hence, the revision petition against the concurrent findings of the court below.

6.Arguments heard and record perused.

7.This revision petition was filed on 27.12.2006 and came up for hearing on 02.02.2007, when learned

counsel for petitioners stated that his record is incomplete, he may be allowed to fully document this revision petition. Time of ten days was allowed, accordingly. On 11.05.2007 once again petitioners was directed to document the petition. On 23.07.2007 vide an application petitioners filed five documents attested by the petitioners counsel and none of them was exhibited before the lower forum.

8.Before the trial court during evidence stage number of documents were exhibited and the same were referred by both the courts below in their judgments, but the same and not even a single document, has been annexed with this civil revision, despite time granted. It is the oldest case on the diary of this court.

9.Section 115, first and second provisos make it obligatory on the petitioners to annex/accompany all the commanded documents and record with the civil revision and this court is duty bound to give effect to legal provisions, but not to make it ineffective. It is one of the obligations of every court to give effect to each and every provisions of each and every law. The apex court has emphasized on the issue and has held, with

the directions to all High Court’s “that in future, no application filed under section 115, CPC, are entertained unless accompanied by copies of the commanded documents and record. Reference is made to the case of “Mst Banori..Vs.. Jilani & others which reads:-

“Section 115, first and

second provisos revision

application not

accompanied by commanded

documents and record Not

entertainable Supreme

Court emphasized

subordinate courts to

show required respect to

provisions of S.115, CPC

by following them in

letter and spirit Supreme

Court, in order to ensure

that due respect was

given to the provisions

of S. 115, CPC directed

that copies of the

present judgment shall be

sent to Registrars of all

High Court who would

place the same before the

Chief Justice of the High

Courts and also circulate

them to all the Judge of

the subordinate courts

within their respective

jurisdiction for

compliance”.

10.Since under section 115 (i), CPC, petitioners was bound to produce complete certified copies of all the exhibited documents of the case with his petition, thus, petitioners would be liable to suffer loss for non producing such copies, therefore, this court had to decide this petition on basis of available record.

11.Learned counsel for petitioners time and again referred to exhibited documents, which are not on record hence, complete evidence was reappraised for the satisfaction of the petitioners which suggest that the Meter in dispute was installed outside the premises of the respondent establishment and being an industrial connect was under the control of SDO concerned. It has come in the evidence that without and details of consumption from the month of January

1997 to December, 1997 the bill in question for the month of November, 1997 was prepared nor there exist any solid and convincing proof that

consumer/respondent had reversed the Meter and its reading. Learned counsel for the petitioners failed to point any non reading and misreading of evidence on record nor could refer to any jurisdiction defect. Even otherwise, it has been time and again held by the apex court as well as by this court that concurrent findings of courts below, on question of facts or law, however, erroneous the same may be, recorded by an court of competent authority, cannot be interfered with by High Court in its revisional jurisdiction under 115, CPC, unless such findings suffer from jurisdiction defect, illegality or material irregularity, thus jurisdiction to interfere in concurrent findings was very limited.

12.In view of the available record, recorded evidence of the parties and ex-parte arguments of the petitioners put-forth, it appears that both the courts below have rightly appreciated the evidence on record.

No case of either misreading or misinterpretation of

law or for interference in revisional jurisdiction of this court has been made out.

13.In the circumstances, the courts below have rightly analyzed the factual and legal aspect of the case and passed the impugned orders/decrees which are maintained.

14.Consequently, the revision petition being bereft of merit, it is hereby dismissed with no order as to cost.

Announced: JUDGE