P L D 2009 Peshawar 50 (PLP)

MUHAMMAD ALAM KHAN, J.

Haji Muhammad Saleem Khan, petitioner has questioned the judgment and decree of District Judge/Zilla Qazi, Dir Lower at Timergara dated 7-11-2007 in Civil Appeal No.24/13 of 2005 through which while accepting the appeal of the respondents the learned District Appeal Court set aside the judgment and decree of Mr. Zafarullah Mohmand, Civil Judge/Illaqa Qazi-II, Timergara through which decree for declaration as well as decree for prohibitory and , mandatory injunction was granted in favour of the petitioner-plaintiff against the respondents-defendants in Suit No.218/1 decided on 28-9-2005.

2. Brief facts of the case are that petitioner filed a suit against Government of Pakistan through Chairman WAPDA, WAPDA House, Lahore and others respondents-defendants to the effect that he being the consumer of account No.05653100839816 and the imposition of Rs.1,30,196 as arrears outstanding against the petitioner-plaintiff are baseless, against facts mala fide and against the rules regulations and hence not binding on petitioner-plaintiff. He had also requested for the issuance of prohibitory/mandatory injunction that in view of the arrears, they should be restrained from disconnecting the electric supply to the premises of the petitioner. The petitioner had also prayed for the recovery of Rs.1,50,000 as damages against the defendants-respondents. It was alleged in the plaint that the plaintiff is a regular subscriber/consumer of the WAPDA respondent and has regularly paid the bills sent to the petitioner by WAPDA, petitioner is not defaulter and hence the imposition of arrears is not in accordance with law. The learned trial Court after summoning the defendants framed the following issues:-- The parties produced pro and contra evidence as they wished to produce, the learned trial Court vide judgment and decree in Suit No.218/1 decided on 28-9-2005 granted a decree only to the effect that the plaintiff is liable to be assessed on 15 KW and on this rate he should be charged and he will be liable to pay the arrears. However, the learned trial Court dismissed the suit with respect to the damages of Rs.1,50,000.

3. Feeling aggrieved the respondents PESCO filed an appeal before the learned District Judge/Zilla Qazi, Dir at Timergara who after hearing the parties and perusing the record came to the conclusion that the evidence on the record is not sufficient to decide the controversy between the parties and hence by its order dated 7-11-2007 in appeal No.24/13 of 2005, accepted the appeal of the defendants/respondents and remanded the case to the trial Court for decision afresh on merits after affording the parties opportunity to lead evidence. The last mentioned order/decree of the District Judge has been impugned in the present revision petition.

4. Mr. Hidayatullah Khan Muhammadzai, Advocate submitted written arguments and also cited some authorities of the superior courts on the proposition that the District Judge could only frame additional issues and ought to have remitted the case with respect to that particular issue to the trial Court and the trial Court after returning the findings should have placed the case file for final disposal of the appellate Court as envisaged by the provision of Order XLI, Rule-25 of Civil Procedure Code. It was submitted that in view of the judgments rendered by the Peshawar High Court Peshawar the case of Gul Baz v. Abdur kaziq PLD 1985 Peshawar-38, Haji Muhammad Ashiq Bhutta v. Dr. Ajazul Haq Qureshi 1989 CLC Lahore-19 and Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR-388. The judgment and decree rendered by the learned appellate Court is liable to be set aside. 4-A. I have given my anxious consideration to the submissions of the learned counsel for the petitioner and have perused the record of the case minutely. The question that the petitioner would be liable to pay at the rate of 15KW or 19KW is the sole point involved in the present litigation between the petitioner and PESCO upon which as the matter related to the record, but unfortunately, no record has been produced to substantiate and clarify this question. The employee of WAPDA namely Muhammad Sher, Junior Clerk Revenue Office, Timergara appeared as D. W.1 and he has produced certain record which is not confidence inspiring in so far there are some cutting in the record and some of the papers according to this witness has not been signed by. the proper functionary of WAPDA. Furthermore, as clarified that, at the time of securing the connection by the plaintiff from WAPDA what was the total sanction load to the premises of the petitioner, so these was no evidence to arrive at a correct conclusion and, thus, no effective adjudication between the parties could be passed. There was no other alternative left with the appellate Court, except to remand the case for de novo trial in order to effectively adjudicate and determine the respective rights of the parties.

5. The contention of the learned counsel for the petitioner that in view of the judgments cited above, the learned appellate Court was not well within its powers to remand the case is also without force because under the provision of section 151 of the C.P.C. the appellate Court has got inherent power to remand the case in order to do complete justice to the parties and any order passed under section 151, C.P.C. is purely discretionary in nature not liable to be impugned in the revisional jurisdiction of this Court. 5-A. The order of the appellate Court is perfectly sound, legal, judicious and is in consonance with the established principles of appreciation of evidence which calls for no interference.

6. In view of the facts and circumstances of the case narrated above, there is no force in the present revision petition which is hereby dismissed in limine. Copy of this judgment be sent to the learned District Judge/Zilla Qazi Dir Lower for placing the same on the record of the Civil Suit No.218/1 decided on 28-9-2005 titled Muhammad Saleem Khan v. Government of Pakistan. H.B.T./11/P Petition dismissed.