PESCO vs Umar Gul etc

2013 Y L R 920

[Peshawar]

Before Mrs. Irshad Qaiser, J

PESCO---Petitioner

Versus

UMER GUL and others---Respondents

Civil Revision No.969 of 2012, decided on 3rd December, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Suit seeking declaration to the effect that plaintiff had cleared all his outstanding arrears to the defendant/ electricity company and nothing was due from him anymore---Suit was decreed concurrently---Validity---Perusal of record revealed that single phase meter used for residential purpose could not consume so much units in one month as was shown by the defendant in the plaintiff's bill for a certain month---Possibility of changing or tampering with meter on part of plaintiff could not be inferred as meter was installed outside the home of the plaintiff at a distance---Defendant electricity company also kept mum about the meter of the plaintiff that had become untraced---No illegality having been found in orders of courts below--- Revision was dismissed.

Hafiz Muhammad Fateh Nasib v. Sir Swarup Chand Hukum Chand, A Firm and another PLD 1947 Privy Council 239; Haji Ghulam Rasool and another v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376; Faqir Dost Ali v. Chief Administrator Auqaf and others NLR 1978 Civil Lahore 1123 distinguished.

Miss Neelam A. Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd December, 2012.

JUDGMENT

MRS. IRSHAD QAISER, J.---Petitioners through the instant revision petition have impugned the judgment and decree dated 20-6-2012 of the learned Additional District Judge-VII, Peshawar, whereby she dismissed the appeal filed by them and maintained the judgment and decree dated 15-11-2011 of the learned Civil Judge-XXVI, Peshawar.

2.Brief facts of the case are that plaintiff/respondent brought a suit for declaration against the petitioners in the Court of the learned Civil Judge, Peshawar, alleging therein that he being a consumer has paid all the electricity bills till February, 2005 to the petitioners and no outstanding remained against him in the shape of arrears. He further alleged that issuance of the bill by the petitioners for the month of March, 2005 showing the units consumed as 14993-51 amount of Rs.90688.51 as arrears being totally wrong, illegal and unlawful upon the rights of the respondent. The suit after contested was decreed by the learned trial Court, vide judgment and decree dated 15-11-2011 and the appeal thereagainst was dismissed by the learned appellate Court vide judgment and decree dated 20-6-2012, hence this revision petition.

3.Learned counsel appearing on behalf of the petitioners tried to canvass at the bar that where the controversy involving voluble rights of the petitioners and public exchequer have not been considered in its true perspective, the impugned finding of the Courts below cannot be said to have been based on proper appreciation of evidence. The learned counsel while closing his arguments contended that where both the Courts below have ignored the real picture of the dispute as well as the grave ground realities, they have acted against the law and facts placed on the record.

4.I have gone through the available record carefully and considered the submissions of the learned counsel for the petitioners.

5.Exh.P.W.l shows the average consumption of the respondent for six to eight months as 300 units per month. P.W.2 who appeared as official witness while producing the units in figure has stated that the units consumed by the respondent from February, 2004 to February, 2005 are 191, 311, 300, 342, 299, 364, 364, 160, 320, 800 and 200. It is also not understandable as to how a single phase meter used for residential purpose by the respondent consumed as much units in one month as shown by the petitioner in the bill of March, 2005. The possibility of any changing or tampering in the meter on the part of the respondent also cannot be inferred, when the meter has been installed outside the home of the respondent at a distance. P.W.2 also admitted in his cross-examination that the meter of the respondent has become untraced from January, 2004 but there is nothing on the record to show any action taken by the petitioners in respect of the untraced meter rather they kept mum over the matter for a sufficient long time. When this being the position, both the Courts below after taking stock of the entire evidence have handed down a balanced and befitting judgment, which cannot be said to have been based on misreading, non- reading of evidence or erroneous assumptions of law and facts, so as to justify interference therewith. The cases of Hafiz Muhammad Fateh Nasib v. Sir Swarup Chand Hukum Chand, A Firm and another (PLD 1947 Privy Council 239), Haji Ghulam Rasool and another v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 Supreme Court 376), Faqir Dost Ali v. Chief Administrator Auqaf, and others (NLR 1978 Civil Lahore 1123) cited by the learned counsel for the petitioners being distinguishable on legal as well factual plane are not relevant to the controversy urged before us.

6.For the reasons discussed above, this revision petition being without substance is

dismissed in limine with no order as to cost.

KMZ/39/P Petition dismissed.