2016 PLP 134 (CLCN)

MUHAMMAD YOUNIS THAHEEM, J.

This revision petition is directed against the judgment and decree dated 17/9/2011 passed by the learned District Judge Bannu, whereby appeal of Chief Engineer PESCO, Khyber Pakhtunkhwa etc.; filed by the respondents against the judgment and decree dated 19/1/2011 rendered by the learned Civil Judge-XVII Bannu was accepted and in consequence suit of the plaintiff/petitioner Mir Zali was dismissed.

2. Briefly stated facts of the case are that Mir Zali, plaintiff/petitioner, filed a suit for declaration-cum-perpetual injunction against the Chief Engineer PESCO Khyber Pakhtunkhwa etc; defendants/respondents, for declaration-cum-perpetual injunction to the effect that he being a consumer of the defendants/respondents vide Account/Reference No.15-6613-10302006-R was regularly paying the electricity monthly bills but still they have sent excessive bills from December 2005, June 2006, December 2007 and November 2008 amounting to Rs. 20,375/-, which are wrong, illegal, against the consumed units, without notice and are liable to be set aside. He also sought permanent mandatory injunction to the effect that the defendants be restrained from disconnecting his electricity connection and to refrain them from demanding the aforesaid amount till decision of the suit.

3. The defendants were summoned who attended the Court and contested the suit by filing writing statement. The divergent pleadings of the parties gave birth to the framing of seven issues. Thereafter, pro and contra evidence of the parties were recorded and arguments of their learned counsel were heard, whereafter the learned trial Judge decreed the suit of the plaintiff/petitioner to the extent of assessment charges while he was held liable to pay the amount of consumed units during the disputed period vide judgment and decree dated 19/1/2011.

4. Feeling aggrieved, the defendants/respondents challenged the aforesaid judgment and decree of the learned trial Judge through an appeal which was accepted by the learned District Judge Bannu and suit of the plaintiff/petitioner was dismissed vide judgment and decree dated 17/9/2011, hence the instant revision petition by the plaintiff/petitioner.

5. I have carefully gone through record of the case and anxiously considered the arguments of learned counsel for the parties.

6. Perusal of order sheet No.55 dated 26/10/2010 shows that the defendants submitted fresh wakalatnama of Mr. Umer Zad Shah Bukhari, their learned counsel, and were given directions by the Court to produce their evidence on 29/10/2010, but on the said date their evidence was absent and thus notice under Order XVII, Rule 3, C.P.C. was given to them and the case was posted to 1/11/2010, on which date their representative Sher Qadir was present but the trial Court struck off their right of evidence under Order XVII, Rule 3 of C.P.C. and did not direct the representative Sher Qadir as to whether he wished to record his statement. In such circumstances, the trial Court was under legal obligation to have asked representative of the defendants present in Court to depose. By not doing so, the learned trial Court has failed to exercise jurisdiction legally vested in it and by not appreciating or applying its mind, the impugned judgment and decree is the result of mis-reading and non-reading of evidence available on file which has resulted into grave mis-carriage of justice. Wisdom in this respect is derived from the case law of the Honourable Supreme Court of Pakistan reported as Rana Tanveer Khan v. Naseer-ud -Din and others (2015 SCMR 1401), wherein it was held that:- "Where the party was present, the court while applying O. XVII, R. 3, C.P.C. and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which had not been availed

However, if such fact was not so recorded by the court, though the party was present and sought its examination, such party should initially move an application to the court for examination if the case had not yet been decided, but where the case was finally decided a ground should be specifically set in the memo of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to such effect

From the record of the present case it did not transpire if the plaintiff was present on the day when his evidence was closed and/or he asked the court to be examined

Such had never been the case of the plaintiff throughout the proceedings of the present case at any stage, as there was no ground set out in the first memo of appeal (before Appellate-Court) or in the revision petition before the High Court.

7. For the reasons discussed above, the revision petition is accepted, the impugned judgments and decrees of both the learned two Courts below dated 19/1/2011 and 17/9/2011 respectively passed by the learned Civil Judge -XVII Bannu and learned District Judge Bannu are set aside. The case is remanded to the learned trial Court for decision afresh positively within two months after giving opportunity to the defendants to produce their evidence. The office is directed to transmit record of the case to the learned trial Court forthwith. ZC/37/P Revision allowed.