2006 PLP 488 (MLD)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that respondent/plaintiff is a consumer of the P.T.C.L. having Telephone No.2896 in Shakargarh and also a practising Advocate. Since the petitioner's phone was being excessively billed, he approached the defendant for correction of the same but without any success and ultimately his telephone was- also disconnected in the November, 1992. On account of this conduct of the petitioner, the respondent filed a suit for recovery of Rs.25,000 on 11-3-1993 against the petitioner claiming as damages. The suit was contested by the petitioner. After recording evidence of the parties, the learned trial Court vide judgment and decree dated 2-4-1995 decreed the suit. The same was assailed by the petitioner through an appeal which was also dismissed vide judgment and decree dated 28-9-2000. Both these judgments and decrees are being assailed through the instant civil revision.

2. It is contended by the learned counsel for the petitioner that the present suit against the petitioner in his personal capacity was not competent. The process of billing and disconnection is not handled by the petitioner all alone. Many officers/officials are involved in the said process including Meter Reader, Clerks, Revenue Department etc., therefore, responsibility, if any, on account of issuance of a wrong bill cannot be laid upon the petitioner alone in his personal capacity. Since respondent/plaintiff had failed to implead all necessary parties including the Corporation of which the petitioner is an employee, the suit was not maintainable.

3. It is next argued that the respondent had earlier filed a similar suit on 22-6-1992 and withdrew the same on 2-11-1992, therefore, the present suit on the same cause of action was barred by the principle of res judicata.

4. On the other hand, learned counsel for the respondent contends that the excessive bills were issued under the authority of the petitioner, therefore, he was personally liable for the loss and torture suffered by the respondent. It is next argued that the plaintiff/respondent was not obliged to implead other persons/authorities as defendant because the petitioner was the overall incharge of Shakargarh Tehsil with respect to his affairs, therefore, the entire responsibility laid upon him about the action/inaction of entire staff of the PTCL department.

5. I have considered the arguments of the learned counsel for the parties.

6. The petitioner may be an overall incharge of the PTCL affairs, but the respondent has failed to bring anything on record so as to show that what action or 'inaction on the part of the petitioner in his personal capacity has caused any damage to the respondent. Had the respondent impleaded the necessary parties as defendants including the Corporation itself then it could have been possible to fix the collective responsibility of the petitioner along with other employees of the department connected with the preparation and delivery of wrong bills. But in isolation from the other officers/officials of the department, the petitioner cannot be held responsible in his personal capacity for some wrong billing committed by other members of the Corporation. Admittedly, the meter reading is not taken by the petitioner as an SDO, because it is function of some other official/Meter Reader. He is also not supposed to process the bill which is the domain of the Revenue Department of the PTCL. Therefore, merely being an overall incharge, he cannot be held responsible for damage, if any, caused by the joint action of Corporation.

7. The petitioner had earlier filed a suit on 22-6-1992 which was withdrawn on 2-11-1992. In the said suit as well as the petitioner has raised a claim of damages of Rs.24,000 although the main prayer was of permanent injunction. The said suit was withdrawn by the petitioner without obtaining permission of the Court for filing a fresh suit. The statement of the respondent through which he has withdrawn his earlier suit is material and needs to be reproduced as follows:-

8. Bare reading of this statement also indicates that respondent has felt satisfied that if his bill is corrected, he has forgiven his claim with respect to damages. Once he has forgiven right of damages by making statement, the present suit is hit by the principle of res judicata.

9. For what has been stated above, I allow this revision, set aside the judgment and decree passed by the two Courts below dated 2-4-1995 and 28-9-2000. Resultantly, suit filed by the respondent stands dismissed with no order as to costs. H.B.T./R-165/L?????????????????????????????????????????????????????????????????????????????????? Revision accepted.