1999 PLP 1198 (CLC)

Brief facts out of which this revision petition arises are that the petitioner/plaintiff got electricity connection for his tube‑well under the Subsidy Scheme from respondents/defendants. The respondents/defendants disconnected tube‑well connection on non‑payment of electricity bill amounting to Rs.14,

165. The petitioner deposited the same and applied for restoration of disconnected connection of his tube‑well. The respondent did not restore the electricity connection of his tube‑well and demanded further amount of Rs.5,603 and the petitioner also deposited the same but the respondents did not restore the electricity connection of his tube‑well and demanded further amount of Rs.30,

400. The petitioner deposited this amount also under protest on 23‑12‑1991. The petitioner alleged that the computer indicated credit of Rs.29,914 in his favour, in spite of it the respondent demanded also price of material and fixed charges. The petitioner without depositing this amount requested respondents for restoration of electricity connection of his tube‑well. The respondent did not accede his request, therefore, petitioner was constrained by the aforesaid circumstances filed Writ Petition No. 1572 of 1993 before this Court against the mala fide action of the respondents, which was disposed of by the consent of the parties in the following terms:‑‑ "(i) The electric connection will be restored to the petitioner's premises within ten days. This is subject to the condition that the petitioner would furnish security other than bank guarantee, for the amount which, according to the WAPDA, has become recoverable from the petitioner in connection of removal of electric equipment, within seven days from today, to the satisfaction of the Executive Engineer, WAPDA, Burewala, District Vehari (respondent No. l); (ii)??????? The dispute about the liability of the petitioner to pay the electric equipment installation charges as well as the other alleged outstanding amounts shall be referred to the Electric Inspector by the petitioner, who shall decide the same after hearing the parties, within a period of one month from‑today; and (iii)?????? In case the decision of the Electric Inspector went against the petitioner, the WAPDA Authorities would be at liberty to recover the amount by enforcing the security. 2.???????? The writ petition is disposed of in the above terms." , The petitioner filed an application before Electric Inspector, who accepted the application of the petitioner vide order, dated 28‑2‑1994 and gave finding of fact against the respondents to the extent that the respondents have disconnected connection of tube‑well of the petitioner without notice and demand of the respondent qua price of material is illegal. The respondents being aggrieved from the order of the Electric Inspector preferred appeal before the Advisor Board, Punjab, who accepted the appeal and set aside the order of Electric Inspector. The petitioner filed suit for declaration‑ against the order of the Advisor Board as well as illegal demands of the respondents on the grounds that the order of the Advisor Board is against law and the action of the respondent is also against law and result of malice. The respondents contested the suit by filing the written statement and controverted the allegations levelled in the plaint. The respondents also filed application under Order 7, Rule 11, C.P.C. that the suit is not maintainable. During the pendency of the suit, the trial Court closed the evidence of the petitioner vide order, dated 13‑6‑1997 and dismissed the suit vide judgment and decree, dated 13‑6‑1997. The petitioner being aggrieved from the Judgment of the learned trial Court filed appeal before the Distract Judge, who entrusted the same to Additional District Judge, Vehari. Learned Additional District Judge accepted the appeal vide his judgment and decree, dated 14‑7‑1998 with the condition that the petitioner should deposit the disputed amount till 29‑7‑1998 and remanded the case to the trial Court for decision on merits. Hence, the petitioner filed this revision petition against the judgment and decree of the Additional District Judge qua the condition imposed by the learned 1st Appellate Court to deposit the disputed amount to the respondents. 2‑A. Learned counsel for the petitioner contended that direction of the 1st Appellate Court, to deposit the disputed amount hefore respondent No.4 is illegal. unwarranted and without any justification. He further contended that the Electric Inspector gave findings of facts against the respondent and the Advisor Board set aside the same without applying its mind and disturb the findings of fact by misreading of evidence on the record. He further urged that the learned trial Court closed the evidence of the petitioner and dismissed the suit on 13‑6?1997 in spite of the fact that on 13‑6‑1997, Advocates were on strike, therefore, learned counsel for the petitioner did not appear. He further contended that the order, dated 13‑6‑1997 was passed in violation of the mandatory provision of C.P.C. This fact is approved by the 1st Appellate Court but the 1st Appellate Court imposed condition to deposit the disputed amount to the respondents without applying its mind and committed material irregularity, therefore, judgment and decree of the lst Appellate Court is not sustainable in the eyes of law.

3. The learned Legal Advisor, Malik Muhammad Siddique Safdar, supported the judgment of the 1st Appellate Court and contended that the learned 1st Appellate Court rightly imposed condition upon the petitioner to deposit the amount to the respondents by virtue of sections 54(C) and 54‑A of the Electricity Act, 1910. He further contended that even the suit is not maintainable unless and until the petitioner has deposited the disputed amount to the respondents.

4. I have given my anxious consideration submission made by the learned counsel for the parties in support of their respective pleas. Reference to section 54‑C of the Electricity Act (IX of 1910) as amended Electricity Act (IX of 1910) as amended by Electricity (Amendment) Ordinance (LXII of 1979) would indjeate that as per its proviso, plaintiff is required to deposit with the Court the amount assessed against him and in the event of his failing to do so any order, A prohibiting the licensee from discontinuing the supply of energy to the premises, shall cease to have effect. Since the dispute between the parties arises out of the provisions of Special Law i.e. Electricity Act, 1910 as amended up to date, It is also a settled principle of law that special excludes the general. I am fortified by 8 the dictum laid down by the Honourable Supreme Court in Zia-ur‑Rehman's case PLD 1973 SC 49 and in Mian Nawaz Sharif's case PLD 1993 SC

473. The aforesaid provisions of special law imposed the condition preced that the petitioner/plaintiff should have deposited the amount due against him assessed by the respondents before filing the suit. It is pertinent to mention here that the amount assessed by the respondents against the petitioner/plaintiff was set aside by the Electric Inspector but the same was again approved by the Appellate Forum Le, Advisor Board, therefore, the disputed amount is due against the petitioner/plaintiff unless and until the order of the Advisory Board is not set aside by the trial Court, therefore, the Ist Appellate Court was justified to the extent to impose the condition to deposit the disputed amount if not made contingent by way of directing the petitioner to pay to outstanding charges. Other than, the order of the 1st Appellate Court shall be clearly violated, express provision as contained in section 54‑C of the Electricity Act, 1910, The only flaw which I notice with the impugned order of the learned Appellate Court is C that instead of ordering the outstanding amount to be deposited in Court, the learned Additional District Judge, Vehari vide his order, dated 14‑7‑1998 seems to have directed the petitioner to make the payment persumably to the respondent No.4 which needs to be corrected. Therefore, I have no hesitation in holding that the impugned judgment of the 1st Appellate Court is in accordance with law to the extent to give direction to the petitioner to deposit the disputed, amount. While directing the petitioner to deposit the disputed amount amounting to Rs.43,050 and finding it as unexceptionable, I maintain the same, provided that the petitioner shall deposit the amount in the trial Court in the form of National Saving Certificates, the profits whereof shall be the entitlement of the petitioner, irrespective of the decision of his suit. The petitioner is directed to deposit the disputed amount amounting to Rs.43,050 in Court instead of depositing the same before respondent No.4 till 6‑9‑1998. Reultantly, this revision petition is disposed of with the aforesaid modification. Q.M.H./M.A.K./M‑947/L?????? ?????????? Order accordingly.