Incharge Sui Gas Vs M/S Sawabi CNG

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

(JUDICIAL DEPARTMENT)

RFA No.56-P of 2015.

In charge Sui Gas Vs

M/S Swabi CNG Filling Station,

Date of hearing........ 10.12.2015.

JUDGMENT

Petitioner (s) by Muhammad Ibrar Khan Advocate.

Respondent (s) by Tayyab Zaman Advocate.

MUUAMMAI) YOUNIS TIIAIIELM, J.--- Through

instant reguiru first appeal the appellants have assailed the judgment and decree dated 24.09.2014, of learned Civil Judge-VI, Swabi, whereby suit of respondent was decreed.

2.l3rief fuicts of the case are that, the respondent has instituted it declaratory suit against the appeliaiits to the effect that he is carrying the business of CNG in the name of Swabi CNG filling Station on Swabi Jehangira Road and

appellants issued the disputed bill for the month of August 2010 amounting to Rs.5558470/-, upon complaint the appellants declared temperature fault in the meter and promised to correct the disputed bill and modified the bill amounting to Rs..4200000/-, which the respondent deposited under protest, while according to consumed units it came to Rs.3200000/-; that the appellants did not correct the disputed bill and in the month of September, 2010, issued the bill amounting. to Rs.223 1260/- by including bill of consumed units plu arrear of previous month and interest; that the respondent is depositing the bill of actual consumed units every month, but despite that appellants have disconnected his Gas connection on 25.05.2012. The respondent had impugned the excess amount of the conSumed units and interest shown in the month of August, 2010 and onward and further disconnection of Gas connection resulting institution of civil suit.

3.Appellants were summoned, they appeared and contested the suit by filing written statement, wherein they

raised legal and factual objections. On divergent pleadings of the parties the following eight issues were liamed.

ISSUES.

I. Whether the plaintiff has got a cause of action? OPP Whether the suit is within time? OPD

Whether suit is bad due to mis/non joinder of necessary parties? OPD

Whether plaintiff being consumer of defendants has wrongly been charged for monthly Gas bill of August 2010 to the time of Rs.5558470/-? OPP

Whether on the basis of said bill the subsequent bills were also incorrect? OPP

Whether plaintiff was misusing his Gas connection and due to defective Gas meter was correctly assessed by defendants ? OPD

Whether plaintiff is entitled to the decree as prayed for?

OPP

Relief?

4.Parties adduced pro and contra evidence in support of their respective stance and on conclusion of trial and hearing arguments of learned counsel for the parties, learned trial court decree([ the suit in ltvour of respondent vide impugned judgment and decree dated 24.09.2014.

1-lence, the instant appeal.

Learned counsel for appellants argued that the impugned judgment is the result of misreading and nonreading of evidence and material available on record, as from the evidence e it is abundantly clear that Ga meter of respqndent was out of order and it was not recording correct gas consumption. lie ftirther argued that the respondent has used Sui Gas illegally as the meter was defective, due to which the respondent was fined. He nexi argued that clue to defective meter as clarified by laboratory report and on the basis ci' mechanical counter reading during the period in which meter was out of order, respondent was charged arrears of consumed units in the bill about month of August 2010.

On the other hand learned couns'! for

respondent supported the judgment of learned trial court, and argued that learned trial court has rightly appreciated the evidence available on record, lie further contended that the appellants have charged excess units alongwith interesi

on that excess units, which the learned trial court has rightly set at naught by decreeing the suit.

Arguments heard and record perused.

Perusal of the record reveals that learned triai court while deciding issues No.4 and 6, nisre'cl the documentary evidence, placed on file Ex; PW 1/3, which is report of the meter testing authority and on it general observation and remarks escaped from the notice of court below, which are reproduced as:

"General Observations: Meter and electronic volume corrector (EVC) data shows occurrence of temperature fault due to defective temperature transducer. Electronic volume data daily log shows zero pressure on 16.06.10, 30.07.10, to 03.08.10, 14, 84, 130, Cult fault volume noted.

Remarks: 1. 14, 84,130 cult fault volume noticed on which correction fhctor not being appi led by electronic volume corrector, under billing should be checked for recovery.

2.Case to be forwarded to competent detection and evaluation committee to establi h meter tempering due to strong indication of meter depressurization as mentioned above."

9.Moreover, Ex: PW 1⁄2 is comprehensive billing history from 19.08.2010 to 30.09.2013, according to which when gas connection was disconnected and thereafter reconnected, the respondent was paying huge amount per month, but all of sudden billing came to the lower end, so team of appellants checked the meter and a per Laboratory report Ex: PW 1/3 as discussed above, the gas meter was defective and was not recording the correct gas consumption. The respondent was running CNG pump on the basis oldefective meter, due to which he was fined, while on the basis of mechanical counter reading during the period in which meter was out of order, the collective bill was sent in the month of August, 2010, which is in accordance with law, but the respondent has not paid full amount, rather partial amount was paid, which rightly shifted in the next months for which the respondent was liable to PaY imd the learned trial covrt by decreeing the suit has committed gross illegality by misreading, which

judgment does not sustain in the facts, circumstances and evidence on lecord particularly documentary 'evidence as Ex:PW 1/3.

10.For the reasons discussed above, the instant appeal is allowed, judgment and decree of learned trial Court is set-aside. Resultantly, suit of respondent stands dismissed. No order as to costs.

Announced.

JUDGE

JUDGE