2018 PLP 1146 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this appeal, the appellant has challenged the validity of judgment and decree dated 29.09.2017 passed by the learned Gas Utility Court, Pakpattan Sharif whereby suit for declaration filed by the appellant was dismissed.

2. Brief facts of the case are that the appellant/plaintiff filed suit for declaration with consequential relief against the respondents/ defendants contending that the plaintiff is running a small hotel in a rented premises/shop where a commercial Sui Gas meter has been installed and he is regularly paying, gas bills. In February, 2013, respondents issued a bill amount to Rs.10,46,460/- which did not commensurate with actual consumption of gas and neither any kind of notice was issued nor he was associated in assessing the process of disputed amount. Appellant time and again requested the respondents to rectify the erroneous adding of access amount in the next coming bills but his request was also refused. Respondents filed contesting written statement stating that the petitioner is not the consumer of the respondents' department. That a tenant does not qualify to be treated as consumer. That under the law only the original owner of the property (Muhammad Aslam) is a consumer. Further contended that due to tempering with the meter the disputed bill was issued against the appellant. The learned Gas Utility Court, after framing the issues and recording the evidence of both the parties dismissed the suit of the appellant vide judgment and decree dated 29.09.2017. Hence, this appeal.

3. Learned counsel for the appellant submits that the appellant being an aggrieved tenant is competent to file suit; that the landlord Muhammad Aslam has also executed special power of attorney appended with this appeal which rectifies the objection raised by the respondents; that registered rent agreement presented in the evidence but the same was not considered by the learned trial court whereas the appellant being assignee falls under the definition of consumer; lastly contended that the learned trial court has neither discussed nor considered the oral as well as documentary evidence of the appellant and illegally dismissed the suit of the appellant in hasty manner, as such, judgment and decree of the learned trial court is not sustainable in the eye of law which is based on misreading and non-reading of record.

4. Mr. Umer Sharif, Advocate/learned counsel appearing on behalf of the respondents referring to the definition of consumer under section 2(b) of Gas (Theft Control and Recovery) Act, 2016 submits that appellant does not fall under the definition of a consumer and the learned trial court after considering the evidence available on record and applying judicial mind to the facts as well as the law on the subject has rightly dismissed the suit of the appellant and no illegality has been committed.

5. Heard. Record perused.

6. The main controversy between the parties which requires determination of competence of an admitted tenant over the rented premises to institute a suit in his independent capacity of being a tenant against the respondents company. To better understand the issue it is quite appropriate to have recourse the definition of the consumer as described in section 2(1)(b) of Gas (Theft Control and Recovery) Act, 2016 which is as under:- (b) "consumer" includes a person who receives a supply of gas under a gas sale, agreement for the specific purpose of consumption and a premises that is connected to a gas pipeline for the purposes of obtaining supply of gas and includes a successor-in-interest and assignees of a consumer and also includes compressed natural gas (CNG) stations which receive gas for their own consumption or resale for vehicular use; From the perusal of above quoted definition, it may be stated that a Consumer for the purpose of the Act is:- (i) A person who receives gas from the gas pipelines under an agreement. (ii) A Successor-in-interest of the Consumer (iii) An Assignee of the consumer (iv) A CNG Station Admittedly, the appellant/tenant does not fall under the item Nos.i, ii and iv of the definition clause and question before this Court is to answer whether an admitted tenant is included in the item No.iii "assignee of the consumer" of definition of the consumer or otherwise. As the meaning of word assignee has explicitly not been defined in the very statute as such the probable nearest meaning of the word can be looked into from the recognized Dictionaries as well as others pari materia on the subject. In order to define word assignee of the consumer. The definitions of word assignment and assignee described in different Dictionaries are reproduced as under:- In the Black's Law Dictionary the word assignee is explained as under:- "An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another; the term denoting not only the act of transfer, but also the instrument by which it is effected. In these senses the word is variously applied in law". Alexander M. Burrill, A Treatise on the Law and Practice or Voluntary Assignments for the Benefit of Creditors $ 1, at 1 (James Avery Webbed, 6th ed.1894). Stroud's Judicial Dictionary of Words and Phrases Eighth Edition, the word assignee is described as under; Assignment: Law of Property Act, 1925 (c.20) S. 52(1)

a -legal assignment" may include any chose in action or other debt but must be in writing (Linden Gardens Ltd. v. Lanesta Sludge Disposals Ltd. [1994] 1 A.C.85) But an "equitable assignment" need not be in writing (Don King Productions Inc v. Warren (No.1) [1998] 2 All E.R.608) An "an assignment of a lease" must be by deed: Law of Property Act above and Cargo v. Julian [1992] 1 All E.R. 744, CA. The expressions assignment, transfer and declaration of trust appear to mean the same. An agreement for the transfer or assignment in equity and if in writing constitutes a bill of sale (Halsburys Laws of England Vol.4 (1), para 624). According to Baby Krishnan Parfulla c. Pant Words and Phrases Second Edition assigned is explained as under:- Assignment; The word 'assignment' in Section 312, Companies Act, 1956, does not mean or include appointment. An appointment connotes the putting in of someone in a vacancy. [Companies Act, 1956]. Oriental Metal Pressing Works (P.) Ltd. v. Bhaskar Kashinath Thakoor, AIR 1961 SC 573: (1961) 3 SCR 329: 1961 (31) CC 143: 1962 (1) SCJ

1. Dt.16.12.1960. "Assignment" means the transfer of the claim, right or property to another. 'Gift Tax Act, 1958]. The Commissioner of Gift Tax, Madras v. N.S. Getty Chettiar, AIR 1971 SC 2410: (1972) 1 SCR 736: (1971) 2 SCC 741: 1971 (82) ITR 99 Dt.16.09.1971. "Assignment" has been stated in Black's Law Dictionary, Seventh Edn., p. 115, as a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. It has further been stated as the transfer by a party of all rights to some kind of property usually intangible property such as rights in a lease, mortgage, agreement of sale of partnership agreement of sale of partnership. [Rajasthan Rent Act, 1950]. Gopal Saran v. Satyanarayn, AIR 1989 SC 1141: (1989) 2 SCC 56: 1989 Supp. JT 21: 1989 (1) RCJ 481: 1989 (2) RCR 50: 1989 (1) SCR 767: 1989 (1) Scale 497: 1989 (2) UJ 1: 1991(1) Rent LR 1 Dt. 20.02.1989. In Legal Terms and Phrases Judicially defined from 1947-2012 M. Ilyas Khan Advocate Supreme Court of Pakistan 2013 Edition, the term assign is as under:- Assign.-The transfer of legal rights in favour of another, the substitution of one person for another. "We find from the Oxford Dictionary that the word 'assign' may means eve a done, if, it is used as a verb, it means 'to transfer or formally make over to another' or 'to allot (a apart for a purpose' and, if used as a noun, it means 'one to whom a property or a right is legally transferred"; Munir-ud-Din v. S. Abbas. PLD 1960 Dac. 217; DLR 1959 Dac. 516; PLR 1959 Dac. 1311. The word 'assign' in section 35(1)(c) of the Registration Act, 1908, does not and should not include a person claiming under the document sought to be registered...the word 'assign' in the Registration Act has been used in the strict legal sense, namely, in the sense of a person in whom the transfer, has been validly and fully vested... the word `assign or assignee' when used in a statute should be taken to have been intended to refer to such a complete assignee as has all the ceremonies and incidents requisite by the law to such character, not taking away any form or circumstance which the law require. If the registration of a document is a condition which the law requires for the perfection of an assignment, then until that registration under the document cannot be deemed to have become an 'assignee' or assign under the document; Kabbad Ali v. A Rashid PLD 1961 Dac. 638, DLR 1961 Dac.326 (FB). "The assignee of a lease stands in the place of the original lessee and becomes a tenant of the original landlord. A privity of estate also arises between the original landlord and the assignee who becomes liable to perform the covenants of the lease or such of them as run with the land". Prov. of East Pakistan v. M. Hussain PLD 1965 SC

1. Further in Oxford Advanced Learner's Dictionary International Student's Edition, the word assignment has been described as under:- Assignment; noun 1 [C,U] a task or piece of work that sb is given to do, usually as part of their job or studies: you will need to complete three written assignments per semester. She is in Greece on an assignment for one of the Sunday newspapers. One of our reporters on assignment in China. I had set myself a tough assignment. 2 [U] the act of giving sth to sb; the act of giving sb a particular tasks: his assignment to other duties in the same company. And according to Chambers Concise Dictionary, the assignment describes as under: Assignment: (n) 1. a, task or duty that has been selected for someone for someone to do; b, an exercise that is set for students, etc.

2. The act of assigning.

3. Law a transfer of property, interest, etc. to someone else. From the perusal of above quoted definitions as well as statute, the meanings of word "assignee of consumer" and characteristic/ authorization of limited certain power upon the tenant under the rent agreement are quite akin to each others and a tenant is not ousted from the definition of consumer. Admittedly, the present appellant is a tenant over the demised premises through a Registered Rent agreement which confers certain rights and liabilities upon tenant and copy of the said agreement is available on the file of the learned trial court. Further, in this appeal, the original owner of the property (consumer) has given an authority through issuing a special power of attorney to the appellant and also acknowledged the filing of the suit by the present appellant on his (owner) behalf. The case of the present appellant falls under the category of clause (iii) mentioned above i.e. 'assignee of the consumer', as such, 'assignee (tenant) of the consumer' falls within the definition of consumer as well. Moreover as the demised premises are rented out' to the appellant and he is under strict liability under the agreement to pay all the allied dues regarding billings of Gas, electricity and water etc. and any default whereof shall constitute the violation of the agreement. Further, it is a tenant who is the direct affectee of the any excess billings and as an aggrieved person his remedy may not be left in vacuums. Furthermore, a registered agreement of rent between the landlord and tenant dated 04.11.2014 is available in the record which shows that the landlord duly authorized to the tenant to file suit if any dispute so arise in respect of Sui Gas. For ready reference, relevant portion of the registered agreement is reproduced as under:- The registered rent agreement between the landlord and tenant (appellant) available in the file of the learned trial court shows clear authorization of the appellant to file the suit in his independent as well as on behalf of the landlord qua consumption of Sui Gas etc. Relevant portion of the rent agreement is reproduced as under:- Moreover, Muhammad Aslam (landlord) has also executed special power of attorney appended with this appeal authorizing the appellant to file suit in respect of dispute against the respondents and on the basis of oral instruction of the landlord/consumer, the appellant filed the instant suit as well as appeal. The relevant portion of the special power of attorney is as under:- Whereas, the learned trial court after applying erroneous consideration to the definition of successor-in-interest illegally non-suited the appellant. For ready reference section 2(n) of Gas (Theft Control and Recovery) Act, 2016 is reproduced as under:- (n) "successor-in-interest" includes a person who either by inheritance or by transfer by way of sale, lease, mortgage, gift, exchange, assignment or other mode of transfer, happens to succeed to, acquire any share or interest in, benami or otherwise, the property or premises for which any charge for gas was or has become due, an ostensible owner of any such property premises, but does not include a person who occupies such premises merely as a tenant; The above said definition deals with successor-in-interest of the original landlord/owner whereas the legislator excluded the tenant in this definition from being the successor-in-interest. The learned trial court has misconstrued the definition of the assignee as successor-in-interest of the landlord whereby the tenant has specifically excluded in this definition predecessor-in-interest of the owner and is not competent to file suit. Further, definition of successor-in-interest according to Black's Law Dictionary as under:-- successor in interest. (1832) One who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance. Further, the Hon'ble Supreme Court of Pakistan in the reported case titled as Muhammad Sharif v. Dr. Khurshid Anwar Mian (1996 SCMR 781) has finally settled question that assignee is competent to file suit on behalf of the assignor and validate the said proceedings. For ready reference, relevant portion is reproduced as under:-

7. Under Order I, rule 10 or Order XXII, rule 10, C.P.C., the Court has discretion to allow any party to be joined or substituted as a party. Such discretion is exercised depending on the facts and circumstances of the case and is guided by the rules of propriety and justice. Reference can be made to Begum Mehrunnisa v. National Building Industries Ltd., Karachi and 2 others (1972 SCMR 102). In Allah Jawaya and another v. Lajpat Rai and others (AIR 1925 Lahore 574) the rejection of application under Order I, rule 10, C.P.C. by an assignee was held to be proper exercise of discretion as the factum of assignment was disputed and the application for substitution of assignee was alleged to have been made months after the assignment. In another case titled Mst. Surraya Begum and others v. Mst. Susan Begum and others (1992 SCMR 652), the Hon'ble Supreme Court of Pakistan held that assignee has power to file the suit on behalf of assignor. For ready reference, the relevant portion is reproduced as under:-

16. As regards the objection that since Faizanul Haq and the Legal representatives of Irfan Ahmad had not been impleaded in the appeal, the same was not properly constituted and should have been dismissed, as no proper decree could have been passed in their absence, the same cannot be accepted. It is admitted that the present respondents/second vendees did apply for being impleaded as respondents to the suit under Order I, rule 10, C.P.C., but the said request was opposed by the defendants, whereupon they subsequently applied under Order XXII, Rule 10, C.P.C. for being substituted in place of the first transferees, which application was allowed. The decree having been drawn up against them, they appealed to the High Court without bringing on record the first transferees, as they were not shown as parties in the decree. Since the appellants opposed the request of the respondents/second vendees to be impleaded as co-defendants in the suit and they also did not take up any objection at the appellate stage that the first vendees had not been impleaded as parties in the appeal, they cannot be permitted to raise this objection now. Even otherwise, this objection does not make their appeal incompetent. Under section 52 of the Transfer of Property Act, a transfer of immovable property in suit to which any right is directly or specifically claimed, is not completely prohibited. What is contemplated by this provision is that the property cannot be transferred or otherwise dealt with, without permission of the Court by any party to suit or proceedings so as to affect rights of any other party thereto under any decree or order which might be passed therein. Subject to these reservations, property can be transferred even without permission of the Court but the transferee or donee or assignee would acquire right thereto or interest therein only subject to the judgment or order of the Court in the suit. See Mst. Zohra Bai v A.A. Zubairi (PLD 1988 Kar 58) Order XXII, rule 10, C.P.C. is a residuary rule, which governs cases not provided for by rules 1 -

9. Rules 10 and 11 of Order XXII, C.P.C. read together indicate that in making rule 10 applicable to appeals, the word "suit" in rule 10 has to be read as including an appeal, that is to say the word 'stet' has to be read as 'suit or appeal', thus indicating that the appellate Court also has jurisdiction to implead an assignee as a party to the appeal even when the assignment was made in his favour during the pendency of the suit. See Luxmi Narayan v. Babu (AIR 1946 Lah. 33). Order XXII, rule 10, C.P.C. is a permissive provision which enables the assignee to continue the suit in place of the assignor. The assignee need not bring himself on record, if he feels that his interest is being protected by his assignor, in which the case the decision for or against his assignor would be binding upon him. See Luxmi Narayan's case (supra) and Nawabazda Shamsher Ali Khan v. Maj. Gen. Nawabazada Sher Ali Khan (PLD 1976 Lah. 650). The suit in such a case would be treated as continuing for the benefit of the assignee, who can, after G the decree is passed, file execution proceedings. See Uchhab Pratta v. Brundaban Malik (AIR 1969 Orissa 142) and Jugaikishara Saraf v. Raw Cotton Co. Ltd. (AIR 1955 SC 376). It is only when the assignee feels that his interest is in jeopardy and not likely to be protected by the assignor, that he can apply to become either a party under Order I, rule 10, C.P.C., (See Ameer Muhammad v Jiwanlal), AIR 1952 M.B.154), or to be substituted for his assignor under Order XXII, rule 10, C.P.C. In the former case, the decree for or against the assignor would be binding on the assignee, and the assignee would be deemed fully represented through the decree holder (See Banke Behari Lal v. Raghubar Dayal AIR 1930 All. 380) and in the latter case the decree would be treated as one for or against the assignee, as transferee of the assignor. In both cases, the decree covers the assignor, the first directly and the second impliedly. From the perusal of afore-quoted definition of the consumer on subject supra, it stands established the appellant (tenant) falls under the definition of assignee of the consumer. Even the consumer explicitly empowered the tenant (assignee) through the registered rent agreement as well as special power of attorney to challenge any disputed bill of Sui Gas. The above said documents were available before the learned trial court but it failed to apply its judicial consideration, to these significant documents while deciding the suit. Furthermore, the appeal is a continuation of the suit and the landlord/owner of the property has appointed the appellant/tenant as his special attorney and also rectified the filing of suit and appeal by the appellant on his oral consent/instructions, as such, the appellant is competent to file the suit against the respondents. Thus the facts and circumstances mentioned above proved that the appellant is consumer and landlord has also authorized him to file suit against the respondents but these aspects have escaped from the judicial consideration of the learned trial court, whereas, the learned trial court misconstrued the provisions/definitions of consumer as prescribed in section 2(1)(b) of Gas (Theft Control and Recovery) Act, 2016 as well as different dictionary and applying erroneous consideration to definition of successor-in-interest contained in section 2(n) of the Act, 2016 ibid, illegally non-suited the appellant and dismissed the suit.

7. In view of above, this appeal is allowed. Judgment and decree dated 29.09.2017 passed by the learned Gas Utility Court, Pakpattan is hereby set aside and the case is remanded to the learned trial court to decide the same afresh after considering the oral as well as documentary evidence on record strictly on merits and in accordance with law. MH/M-209/L Case remanded.