2013 PLP 443 (YLR)

RIAZAT ALI SAHAR, J.

Through this Revision Application the applicant has assailed the judgment and decree dated 13-2-2010 and 19-2-2010 respectively passed by the 1st Additional District Judge, Mirpurkhas in Civil Appeal No.29 of 2005 and judgment and decree dated 31-3-2005 and 7-4-2005 passed by the 1st Senior Civil Judge, Mirpurkhas in F.C. Suit No.21 of 1998, whereby suit of the applicant for declaration and mandatory injunction has been dismissed by the Courts through concurrent findings.

2. Brief facts leading to this revision application appears that the applicant had filed civil suit before the Senior Civil Judge, Mirpurkhas, he had set out his case that he is regularly making payment of telephone bills of Telephone No.60645 to the respondent and there are no outstanding dues against the applicant in respect of the said telephone. The last bill paid on 17-2-1998. According to the applicant three days ago from the date of presentation of the plaint, without any prior notice or reasonable cause the respondent No.1 at the direction of respondent No.2 disconnected the said telephone number of the applicant, put the applicant under hardship and mental torture as the applicant is a medical practitioner. According to the applicant such act of the respondent is illegal. He prayed for following relief in suit as under:-- A. That this honourable Court may be pleased to declare the action of the defendants as ultra vires, illegal, mala fide, without notice, unjustified, against the provision of rules of natural justice and void and ab initio. B. That this honourable Court may be pleased to grant mandatory injunction against the defendants directing them to restore the Plaintiff's Telephone No.60645. C. That the cost of the suit be borne by the defendants. D. Any other relief, which this honourable Court may deem fit and proper.

3. The respondent in the suit has pleaded that the applicant got installed two telephonic connections i.e. Telephone No.2982 at Shop No.4, Jameel Shaheed Road, Mirpurkhas and another telephone No.60645 (previous No.3911) at House No.C-3/194, Selellite Town, Mirpurkhas, the Telephone number in question. It is further pleaded by the respondents that since there were arrears amounting to Rs.1,86,749.72 against the plaintiff on Telephone No.2982 that is why the Telephone number in question i.e. 60645 has been disconnected.

4. The trial Court has framed the following seven issues, which are as under:-- (1) Whether the suit is not maintainable according to law? (2) Whether there was due against plaintiff's Phone No.60645, if not, disconnection of the phone is illegal, mala fide, without notice, unjustified, ultra vires and against the principles of natural justice? (3) Whether the plaintiff has got Shop No.4, Jamil Shaheed Road, Mirpurkhas and Telephone No.2982 was installed at the request of plaintiff after proper verification, validly and legally and the plaintiff is liable to pay dues accrued on such phone? If so, any notice was served upon the plaintiff? (3-A) Whether the defendants have authority to disconnect residential Phone No.60645 of plaintiff due to non-payment of alleged dues accrued on Phone No.2982? (4) Whether the plaintiff is entitled for relief claimed? (5) Whether there has been forgery committed in the office of defendants in the name of plaintiff? (6) Whether the defendants installed the disputed telephone without proper verification, documentation and by way of impersonation? (7) What should the decree be?

5. The learned counsel for the applicant at the very outset argued that both the courts below have committed irregularity and illegality while passing the judgment as the telephone number in question i.e. 60645 is not under default and the Telephone No.2982 has no concern with the applicant, therefore, the respondents' act regarding disconnection of the telephone in question is illegal. He next argued that the document of contract between applicant and the respondent relied upon by the respondent in their evidence is not a contract and he referred the case reported in PLD 2012 Lahore Page 386.

6. Conversely, learned counsel for respondents contended that the judgment of the trial Court affirm by the appellate court are legal, valid and does not require interference of this court, he mainly relied upon Condition No.17 of the Contract stating therein that applicant/plaintiff who is subscriber throughout period of this contract has confirmed all the rules and regulations of the respondents' authority. During the arguments he has also relied upon the blank copy of pro forma hiring contract agreement specially clause 12-ii stating therein that all the telephone connections services working in the name of defaulter within the territory of Pakistan shall be liable for disconnection.

7. I have considered the respective submissions of learned counsel for the applicant and learned counsel for respondents and examined the record.

8. Perusal of pleadings of the parties and evidence led thereto reflects that it is an admitted fact that the applicant has disputed his physical occupation and installation of telephone number 2982 that is why the Issue No.3 and 3(a) were the crucial issues, but it appears that the respondents have failed to establish in the trial Court that the applicant was in possession of Shop No.4, Jameel Road, Mirpurkhas in which place the telephone number 2982 was installed. Indeed the respondents have also failed to bring on record the nexus of applicant with the property i.e. Shop No.4, Jameel Road, Mirpurkhas. On the contrary, the applicant had produced Exh. 92, a letter dated 12-5-2001 of Municipal Authority as the property i.e. Shop No.4 was actually owned by Municipal Committee, Mirpurkhas, said letter addressed to the applicant on his application stating therein that the said shop was rented out in the name of Mr. Wasi Ahmed and the shop in question was never remained in the name of applicant. It is relevant to mention here that such document has not been shaken during the cross-examination. The respondents were under obligation to establish the connection of the applicant with the Shop No.4 and were also under obligation to establish that without verification of the documents of the property how the telephone number was installed in the name of the applicant. I have carefully compared the signature of the applicant with this document from the admitted signature of the applicant over the plaint (record and proceedings of the trial court) ex facie the signature of the applicant is different and such document has been seriously and specifically challenged through the cross-examination, as such I am not satisfied with this document i.e. Exh.118/J which has been ignored by both the Courts below. This contract also does not show the name of applicant nor the signature of the respondent being an executant, said to have been second part of the agreement, therefore, I am clear in my mind that this contract Exh.118/J is neither proposal nor consideration within the meaning of section 2 of the Contract Act, 1872.

9. Furthermore, admittedly the applicant was regularly depositing the bill of telephone in question i.e. 60645 then under what law his telephone number was disconnected. On query, the learned counsel for the respondents had relied upon the Exh.118/J (agreement). Condition No.17, would be worthwhile to mention as under:-- "Condition No.17. The subscriber shall, throughout the period of this contract, confirm to all rules and regulations made by the President or the Government of Pakistan, or the Director-General, Telegraph and Telephones and enforce for the time being relating to the contracts for the hire of telephone apparatus and applicable to this Contract."

10. Now couple to this document, the learned counsel for respondents has referred the Condition No.12 (ii) and (iii) of blank pro forma of Hiring Contract. The said pro forma was come into existence after the cause of action having no nexus with the suit, even that would also be worthwhile to mention here as under:-- "Condition No.12 (ii). All the telephone connections and services working in the name of defaulter anywhere in the territory of Pakistan shall be liable for disconnection and termination of any other hiring contracts with the "Company" without any notice. Condition No.12(iii). Once a "Customer" is declared as defaulter, he/ she/they shall not be allowed any other connections unless all the outstanding dues are cleared and a clearance certificate from the concerned accounts office of PTCL shall be necessary.

11. The Condition No.17 of this Contract (Exh.118/J) is relating to law and regulations. The copy of the pro forma of Hiring Contract agreement, of which the Condition No.12(ii) and (iii) were relied upon as supra, admittedly are neither regulation nor rules and admittedly nor same is a contract between the applicant and respondents. Nevertheless, the contract relied upon by the respondents at Exh.118/J, seems to have been signed by the applicant. I have also noticed the findings of the trial Court on crucial issue No.3 and 3-a, the trial Judge while recording the findings has discussed the contentions of the applicant and respondent, but has failed to give his findings on both the issues. The term findings as defined in Black's Law Dictionary, 5th Edition, Page-569, would be relevant to be referred as under:-- Finding: The result of the deliberations of a jury or a court. A decision upon a question of fact reached as a result of judicial examination or investigation by a court, jury, referee, coroner, and others A recital of the facts as found. The word commonly applies to the result reached by the judge or a jury.

12. In view of the above definition the trial Judge is required to render its findings on his judicious consideration over the pleadings and evidence thereto and is bound to conclude and form its opinion as required for administration of justice.

13. In the case in hand the Issue No.3 and 3-a were the important issues, but the trial Judge has failed to give its conclusion and determination while taking into the consideration the evidence and pleadings as required for administration of the justice.

14. The judgment of the first Appellate court was also noticed. 1st Additional District Judge, Mirpurkhas without framing the points for determination decided the appeal as required under Order XLI, Rule 31, C.P.C., Order XLI provides that the judgment of the Appellate Court shall be in writing and shall state (a) the points for determination (b) the decision therein, (c) the reasons for decision and (d) where the decree appealed from is reversed or varied, the relief which the appellant is entitled; and shall at the time that it is pronounced, be signed and dated by the Judge or by the Judges concurring therein. In my view it is mandatory upon the Appellate Court to give its findings on points of determination. As the legislature has entrusted a very important duty to the first Appellate Court, it is for that Court to decide finally all questions of facts on which the disposal of the suit might depend and the Appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the appellant itself does not examine the facts and evidence and does not even mention the points which the case raises, it will be certainly failing in its duty.

15. I am of the affirm view that both the courts below while passing the impugned judgments and decree have committed grave illegality with material irregularity which requires interference of this court in its discretionary jurisdiction under section 115, C.P.C. And as result of the discussion, the impugned judgments of both the courts below are hereby set aside and suit of the applicant/plaintiff stands decreed as prayed. The revision application is allowed. KMZ/A-109/K Petition allowed.