2017 PLP 757 (MLD)

MUHAMMAD GHAZANFAR KHAN, J.

Through the instant revision petition, petitioners PESCO through Chief Executive PESCO, Peshawar and six others have assailed the judgment and decree dated 20.10.2014, passed by learned District Judge, Tank, whereby their appeal against the judgment and decree dated 18.01.2014 of learned Civil Judge-I, Tank was dismissed.

2. Briefly stated facts of the case are that the respondent filed a suit against the petitioners for declaration-cum-perpetual injunction to the effect that petitioner No.6 sent to him detection bill amounting to Rs.5,58,101/- along with notice No.2066 dated 07.9.2011, which is totally illegal, void and ineffective upon his right, therefore, he is not bound to pay the same. The petitioners were summoned who filed their written statement. The learned trial Court framed issues, recorded evidence of the parties and after hearing arguments, decreed the suit of respondent vide judgment dated 18.01.2014 which was challenged by the petitioners in appeal but the same was also dismissed by learned District Judge, Tank vide judgment dated 20.10.2014. Hence the instant revision petition.

3. Learned counsel for the petitioners at the very outset raised two preliminary objections; firstly, that the suit of the respondent was not maintainable as it did not contain the clause of value for the purpose of jurisdiction and Court fee which is mandatory under Order VII, Rule 1(i), C.P.C. and; secondly, that under Section 26(6) of Electricity Act, 1910, the civil Court is not competent to try such like matters. While arguing the case on merits, the learned counsel contended that the evidence available on the file was not gone through, hence, both the Courts below erred in fact and law. He argued that besides jurisdictional defects, the judgments and decrees of both the Courts below are the result of misreading and non-reading of evidence.

4. On the other hand, learned counsel for the respondent while rebutting the arguments of learned counsel for the petitioners argued that the case, as made out from pleadings of the parties, is different than the one as argued by counsel for the petitioners. He also submitted that non-mentioning of value for the purpose of jurisdiction and Court fee is not mandatory but directory in nature and the Rule referred to by learned counsel for the petitioners does not entail any penal consequences in case the requisite clause is not added. He further contended that if this is considered to be a flaw in the pleadings of the respondent, even then it can at the most be termed as an irregularity and not an illegality, curable at any time. He further argued that provisions of Section 26(6) of Electricity Act, 1910 are not attracted to the facts and circumstances of the case and the learned Courts below passed the judgments and decrees in accord with law keeping in view the evidence led by the parties and after proper appreciation of law and evidence available on the subject.

5. I have heard learned counsel for the parties and perused the record.

6. Perusal of record shows that no doubt the respondent has not mentioned the valuation of suit either in the heading of the plaint or anywhere in the plaint, however, it is a fact established by the pleadings and evidence of the parties that the arrears of amount were adjudged against the respondent on the basis of a unilateral report wherein it was shown that the meter of the respondent was 60% slow so the amount mentioned in the plaint was adjudged against him which the petitioners have questioned in civil revision. The petitioners only disputed in their written statement the jurisdiction of the Court and nothing else has been pleaded. It is by now more than settled law that the parties cannot go beyond their pleadings. The first objection raised by the petitioners regarding jurisdiction is based upon his assertion that Section 26(6) of Electricity Act, 1910 provides that in such like cases Electric Inspector shall decide the matter or if he fails to do so or the consumer is not in agreement with his decision, the matter shall be referred to Provincial Government whose decision shall be final and the civil Court has nothing to do with the dispute arising between the consumer and the licensee. The referred Section is reproduced for ready reference. "26(6)

Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct, the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, maximum demand indicator or measuring apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where either the licensee or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final: Provided that, before either a licensee or consumer applies to the Electric Inspector under this subsection, he shall give to the other party not less than seven days' notice of his intention so to do. "

7. Bare reading of this section provides that the dispute of measurement etc shall be determinable by the Electric Inspector upon the application of either party. The proviso to this section also provides that before any of the parties applies to the Electric Inspector under above subsection, the party disputing the measurement etc shall give not less than seven days' notice of his intention so to do to the rival party. In the present case, the meter was checked unilaterally in the absence of respondent/plaintiff and none of the parties moved any application or ever asked Electric Inspector to resolve the dispute between them so, in my view this section is seldom attracted to the present case.

8. Section 9 of C.P.C. deals with the primary jurisdiction of civil Court which provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of their cognizance either expressly or impliedly barred. Learned counsel for the petitioners could not point out any bar contained in any law except the ibid section. So, in a case where the jurisdiction of civil Court is not specifically barred, the Court has got the jurisdiction to entertain suit as is obvious from the decrees of learned Courts below and the plaint itself reveals that it was a case for an amount of Rs.5,58101/- which was adjudged against the petitioners. So, in such scenario, the value for the purpose of jurisdiction or Court fee shall be the same as mentioned in the judgments and decrees of Courts below and in the plaint of the respondent.

9. In case titled "Abdul Aziz and another v. Saghir Khan" reported in 1982 CLC 347, it was held by their Lordships that:-- "

5. Likewise in the instant case in the plaint land in dispute was described as situated in the area of village Jattar, Tehsil Shakargarh, District Sialkot and in the prayer clause also, decree of pre-emption sought was in respect of the land so situated. The land in dispute admittedly falls within the territorial jurisdiction of the learned Civil Judge in whose court the suit was instituted. In the circumstances the non-inclusion of the jurisdiction clause of the plaint in a separate para was a mere omission. The District Judge was, therefore, justified in allowing the amendment prayed for. This appeal, therefore, fails and is dismissed in limine."

10. Even otherwise it is a law of procedure and cannot be taken as an impediment in the parting of jurisdiction to a party if otherwise his case is proved on merits. The provisions of Order VII Rule 1, C.P.C. are procedural and directory in nature and not mandatory so if a party has not been prejudiced by any of the omission mentioned in the Rule ibid, the case cannot be decided on mere technicality. The present case was adjudged against the petitioners after thorough perusal of record, evidence and going through the pros and cons of the law and facts available on the subject. The petitioners have also availed the right of appeal but the question raised before this Court has not been agitated at the time of filing appeal. So, at revisional stage, the petitioners cannot take any benefit of procedural technicalities.

11. For the reasons mentioned above, this revision petition, being devoid of substance, is hereby dismissed. MH/I/P Revision dismissed.