2017 PLP 1070 (MLD)

MUHAMMAD YOUNIS THAHEEM, J.

Through instant regular 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. Brief facts of the case are that, the respondent has instituted a declaratory suit against the appellants 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.2231260/- by including bill of consumed units plus 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 framed. ISSUES.

1. Whether the plaintiff has got a cause of action? OPP

2. Whether the suit is within time? OPD

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

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

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

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

7. Whether plaintiff is entitled to the decree as prayed for? OPP

8. 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 decreed the suit in favour of respondent vide impugned judgment and decree dated 24.09.2014. Hence, the instant appeal.

5. Learned counsel for appellants argued that the impugned judgment is the result of misreading and non-reading of evidence and material available on record, as from the evidence it is abundantly clear that Gas meter of respondent was out of order and it was not recording correct gas consumption. He further argued that the respondent has used Sui Gas illegally as the meter was defective, due to which the respondent was fined. He next argued that due to defective meter as clarified by laboratory report and on the basis of 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.

6. On the other hand learned counsel for respondent supported the judgment of learned trial court, and argued that learned trial court has rightly appreciated the evidence available on record. He further contended that the appellants have charged excess units along with interest on that excess units, which the learned trial court has rightly set at naught by decreeing the suit.

7. Arguments heard and record perused.

8. Perusal of the record reveals that learned trial court while deciding issues Nos.4 and 6, misread 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, Cu. ft fault volume noted. Remarks: 1. 14, 84,130 cu. ft fault volume noticed on which correction factor not being applied by electronic volume corrector, under billing should be checked for recovery.

2. Case to be forwarded to competent detection and evaluation committee to establish 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 as 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 of defective 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 and the learned trial court by decreeing the suit has committed gross illegality by misreading, which judgment does not sustain in the facts, circumstances and evidence on record 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. ZC/60/P Appeal allowed.