2020 PLP 36 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this Regular First Appeal filed under Section 13 of the Gas (Theft Control and Recovery) Act, 2016 (Act No.XI of 2016), the appellant has challenged the judgment and decree dated 24.07.2017, passed by the learned Additional District Judge, Faisalabad (Gas Utility Court), whereby the suit for declaration filed by the plaintiff/ respondent No.1 was decreed.

2. Brief facts are that the plaintiff/respondent No.1, on 30.09.2013, filed a suit for declaration before the learned Senior Civil Judge, Faisalabad. Subsequently, vide order dated 19.03.2014, the suit was transmitted to the Gas Utility Court (Additional District Judge, Faisalabad), by the orders of the learned District Judge, Faisalabad, wherein written statement was filed. The suit was contested. Again the suit was transferred to the learned Civil Judge, Faisalabad, vide order dated 17.02.2015. Issues were framed by the learned Civil Judge on 30.03.2015. Statement of the plaintiff was recorded as PW-1 on 19.11.2015 whereas in the statement of the learned counsel for the plaintiff/ respondent No.1, recorded on 11.03.2016 by the learned Civil Judge, Faisalabad, Photostat copies of the documents were received as "Mark-A to Mark-S". Thereafter, the case was transmitted to the Gas Utility Court (Additional District Judge, Faisalabad), vide order dated 10.11.2016 in the light of subsection (8) of Section 5 of the Gas (Theft Control and Recovery), Act, 2016, and further proceedings were initiated from the stage where the proceedings of the suit were pending before the learned Civil Judge and after recording of the evidence of the defendants, the learned trial Court decreed the suit of the plaintiff vide judgment and decree dated 24.07.2017. Hence, the instant appeal.

3. At the very outset, learned counsel for the appellant states that he has objection that the plaintiff/respondent has failed to prove the case pleaded by him through production of evidence and the submitted documents (Mark-A to Mark-S) are inadmissible in the evidence. Relies upon an unreported judgment dated 18.05.2017, passed in Civil Revision No.953/2015, titled "Sui Northern Gas Pipelines Limited and others v. Riaz Qadeer". Learned counsel for the appellant prays for remand of the case to the learned trial court.

4. I have heard the learned counsel for the appellant at length and gone through the record.

5. Admittedly, the documentary evidence produced as Mark-A to Mark-S are mainly relies upon photostat copies of the bills issued by the appellant-department and the same are inadmissible in the evidence. The plaintiff was required to produce the admissible evidence. Even the learned trial court has not bothered to note this legal defect and asked the plaintiff/respondent to produce admissible evidence. Despite this fatal defect, on the basis of said evidence, which is inadmissible in evidence, suit of the plaintiff has been decreed by the learned Gas Utility Court. In this view of the matter, the findings recorded by the learned trial court, vide judgment and decree dated 24.07.2017, on the basis of inadmissible evidence, are not sustainable under the law, therefore, the same are set aside and the matter is remanded to the learned Gas Utility Court, Faisalabad.

6. The appellant to appear before the learned trial Court on 10.10.2010. The learned trial Court will issue notice to the plaintiff/respondent, as respondent was proceeded against ex parte before this Court and will give opportunity to the parties to produce their respective evidence and then decide the matter strictly in accordance with law. ZC/S-78/L Case remanded.