2007 PLP 1877 (MLD)

MAULVI ANWARUL HAQ, J.

On 16-2-2005 the petitioner filed a suit against the respondents. In the plaint, it was stated that the petitioner is a consumer since the last 20/21 years paying his bills regularly. The meter is affixed outside the factory. It is surrounded by an iron fence closed from all sides and is locked and the key remains in possession of the respondents. No notice or explanation of any kind about any defect in the meter has been conveyed to the petitioner. The meter was changed in May, 2004 and a new meter was affixed. This meter was also changed in September, 2004. A bill in the sum of Rs.1631,488 for the period from 30-12-2004 to 31-1-2005 was issued. According to the petitioner, a sum of Rs.12,60,233 was added without any rhyme or reason. He contacted the respondent No.2 who stated it that the amount has been added because of some fault in the earlier meter. According to the petitioner, no checking had been conducted after notice to the petitioner or in his presence: According to him, the meter was working properly. A declaration was sought that the said bill is illegal and the respondents cannot disconnect the premises for its non-payment. A permanent injunction was sought restraining the respondents from recovering the said amount or disconnecting the premises. In their written statement, the respondents took the plea that the relationship is governed by an agreement and no condition of the agreement has been violated, the suit is not competent. It was alleged that the petitioner has' tampered with the meter and on 26-10-2004 the meter was found 'tampered and the unrecorded gas supply was charged accordingly. Since temporarily injunction was also prayed for, the matter was decided with a direction to the petitioner to deposit half of the claimed amount which deposit has been made. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 10-12-2005. A first appeal filed by the petitioner has been dismissed by a learned A.D.J., Gujranwala, on 9-2-2007.

2. Learned counsel for the petitioner contends that in the absence of any evidence that the meter has been tampered with by the petitioner, the amount had to be calculated and charged in accordance with Clause-14 of the agreement. Learned counsel for the respondents, on the other hand, objects that the suit is barred under section 69 of the Partnership Act, 1932 and .further it is not maintainable and he .cites the case of Aurangreb v. Messrs Sui Southern Gas Company Ltd. (2003 YLR 1673).

3. I have gone through the copies of the records. I have already noted above the respective pleadings of the parties. The case of the respondents was that the petitioner had tampered with the meter and consequently the said amount was being claimed. Muhammad Naeem, Shirt Billing Officer of the respondents is D.W.1. In his cross-examination, he stated that when a meter is changed, a report is prepared and that he has not produced that report in Court. He admitted that no notice was sent to the petitioner. Similarly, the report of the Lahore Central Meter Shop was not given to the petitioner. He was also not summoned when the said amount was worked out. Neither a report was given to the petitioner. He then stated the monthly consumption of the petitioner. He expressed ignorance as to when the meter was sent to Central Meter Shop and what was its condition. He stated that the meter was affixed outside the Factory and it was surrounded by an iron fence. It was locked and key had never been given to the petitioner. He admitted that there is no allegation against the petitioner that he had prepared some duplicate key.??

4. Shahzad Iqbal, Senior Metering Engineer is D. W.2. He is the person who had checked the meter. In his cross-examination, he said that the seals on the meter were intact. He then admitted that the meter was not presented before him for checking. He volunteered that the meter was checked by a subordinate who enjoys his confidence. Needless to state that no such report is available. Similar is the statement of Imran Altaf D. W.3. In the said state of evidence, the learned counsel for the petitioner has very correctly argued that there is no evidence on the record that the meter had been tampered with by the petitioner. The learned counsel for the parties admit that the billing is to be done in accordance with Clause-14 of the agreement in case of defective meter. The said Clause-14 provides that in case the meter is officially tested and is found to register erroneously, the meter shall, if the period of inaccuracy is not known or ascertainable, be deemed to have been registered erroneously to the degree so found for the last half of the period since the date of the previous meter test, provided that period of adjustment shall not exceed 15 days. In the present case, as observed by me above, there is no evidence that the petitioner in any mariner tampered with or is otherwise responsible for the alleged error in the recording by the meter and as such adjustment could have been made only for 15 days. Whereas according to D. W. 1, the adjustment has been made for 107 days. The said demand of the respondents is accordingly violative of the said condition of the agreement and even if it be assumed that some defect was found in the meter, which fact has otherwise not been proved on record, the petitioner could not have been charged for adjustment for a period of more than 15 days.

5. Coming to the said contentious of the learned counsel for the respondents, the objection with reference to section 69 of the Partnership Act, 1932, is frivolous as admitted the petitioner is a sole proprietorship and not a firm. So far as the second objection is concerned, I have examined the said judgment in the case of Aurangzeb being relied upon by the learned counsel for the respondents and I find that the facts are distinguishable. In the present case, it was the plea of the respondents that it has not violated any terms of the agreement between the parties whereas after examining of the record, I have found that the said agreement has been violated and the bill has been worked out in contravention thereof.??????

6. For all that has been stated above, this civil revision is allowed. Both the impugned judgments are set aside and the suit of the petitioner is decreed inasmuch as the respondents are directed to work out and serve a bill in accordance with the first para of the Clause-14 of the agreement between the parties. It is declared that the bill, dated 17-2-2005 has been prepared in violation of the agreement between the parties and the respondents are accordingly restrained from the recovering the same or to disconnect the premises for non-payment of the same. However, the respondents can proceed in accordance with the said agreement against the petitioner in case he fails to pay the bill prepared and served as directed above. No orders as to costs. M.H./N-60/L?????????????????????????????????????????????????????????????????????????????????????? Revision allowed.