CH. IJAZ AHMAD, J.--- The brief facts out of which the present revision petition arises are that the respondent-plaintiff filed a suit for declaration against the petitioners-defendants in the Court of Senior Civil, Mian Wali. The contents of the plaint reveal that respondent-plaintiff was consumer of electricity for his Tube Well installed within the area of Musa Khel, Tehsil and District Mianwali and was holding account No. 3352 0043-R. The petitioner-defendant sent a bill to the respondent- plaintiff amounting to Rs.1.59,146/-, dated 23.5.1995. The respondent-plaintiff being aggrieved filed the aforesaid suit in the abovesaid Court on the ground that the petitioners-defendants have sent the bill to the respondent-plaintiff mala fide and is against the law and facts and is liable to be recovered from the respondent-plaintiff. A permanent injunction has also been prayed in this regard. The contents of the plaint further reveal that respondent-plaintiff has been paying the electricity charges for the said Tube Well till 19.6.1990. Thereafter the respondent-plaintiff filed an application before the petitioners to disconnect his connection of tube well as his tube well was not in working condition, which was disconnected by the petitioners and also taken away the transformer in 1990. Thereafter disconnected the connection of the tube well in-question. The petitioners had been issuing bill to the respondent-plaintiff for zero amount. Thereafter on 23.5.1995 the petitioners-defendants issued a bill in the amount of Rs.1,59,146/- which is not in consonance with the ground realities. The petitioners-defendants filed written statement controverted the allegations leveled in the plaint. Out of the pleadings of the parties, the learned Trial Court framed the following issues:-
(1) Whether the plaintiffs has got no cause of action to file this suit? OPD
(2) Whether this Court lacks jurisdiction? OPD
(3) Whether the plaintiff has not come to this Court with clean hands and as such is not entitled to any discretionary relief? OPD
(4) Whether the plaintiff is a defaulter and the disputed amount is still outstanding against .)PO
(5) Whether the electricity connection of the plaintiff was disconnected and the equipment was removed before 19.6.1990? OPP
(6) Whether the plaintiff is entitled to the decree as prayed for? OPP
(7) Relief.
The learned Trial Court dismissed the suit vide judgment and decree dated 30.2.2000. The respondent-plaintiff being aggrieved frilled appeals before the learned Addl. District Judge, Mianwali, who accepted the same vide judgment and decree dated 25.1.2001 and remanded the case to the Trial Court. After remand the Trial Court decreed the suit vide judgment and decree dated 8.5.2001. Subsequently, the petitioners-defendants filed an appeal before the District Judge concerned, who accepted the same appeal partly vide judgment and decree dated 12.3.2002, hence the present revision petition.
2. Learned counsel of the petitioner submits that findings of the first Appellate Court on issues Nos.
5 and 6 are not in consonance with the evidence on record and in fact is result of misreading and non-reading of the record. He further submits that respondent-plaintiff admitted the claim of the petitioners-defendants in cross-examination to the extent of Rs.1,60,000/- but this fact was not scrutinized by the first Appellate Court in its true perspective. He further submits that the first Appellate Court ignored the evidence of the petitioners-defendants as D.W.2 Syed Abdullah and D.W.1 Aziz Ullah Khan have taken definite stand in the examination-in-chief as well as in cross- examination that they have visited the tube-well in-question which had been in working condition in spite of the fact that the electricity connection was disconnected by the petitioners-defendants on the request of the respondent-plaintiff.
3. Learned counsel of the respondent-plaintiff submits that the first Appellate Court has modified the judgment of the Trial Court after re-appraisal of the evidence on record and the learned counsel of the petitioners failed to point out any piece of evidence, which was misread or no-read by the first Appellate Court, therefore, judgment of the first Appellate Court is valid in the eye of law and the revision petition is liable to be dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the finding of the first Appellate Court on issues Nos. 5 and 6 to resolve the controversy between the parties:- Issue No. 5. "In support of, this issue the plaintiff only stated that the Department removed the equipments from the spot in June, 1990. D.W.1 Aziz Ullah Technical Assistant has stated that it was on 27.6.1992 that the equipments from the spot were removed and it is incorrect to suggest that the equipments were removed on 7.6.1990. D.W.2 in his cross-examination has stated that as per record the connection in dispute was disconnected on the application of the plaintiff but it is not known to him that the plaintiff had written in the application that his tube well had become faulty.
The plaintiff-respondent did not give any notice to the defendants-appellants to produce the original application in evidence so that it could be proved that the plaintiff applied for permanent disconnection or for temporary disconnection. In absence of the same it will be presumed that the plaintiff had only applied for temporary disconnection and the equipments remained at the spot till 27.6.1992 in wait of any application for restoration of connection, therefore, the Wapda Department is entitled to recover the incidental charges and other charges of the equipments upto 27.6.1992 from the plaintiff/respondent. Issue No. 5 is decided accordingly. The finding of the Trial Court is varied and amended accordingly.
Issue No. 6.
The plaintiff/respondent as per my observations against issues Nos. 4 and 5 is only entitled to the relief that he is not bound to make payment of any current bill for consumption of the electricity thereafter 7.6.1990. However, he is bound to make payment of the incidental charges and other charges of the equipments at the spot which remained installed there upto 27.6.1992 as the Department keeps the equipments installed therefore wait of any application of the consumer for restoration of the connection if the same was not permanently disconnected. The plaintiff has also failed to prove that he applied for permanent disconnection, therefore, the finding of the Trial Court is valid accordingly."
The aforesaid finding of the first Appellate Court reveals that the first Appellate Curt has reappraised the evidence in first appeal and found that the bill sent by the petitioner-defendants to the respondent is not in consonance with the ground realities as the electricity connection was disconnected by the petitioners on the request of the respondent and the petitioners have not sent any bill to the respondent qua any outstanding and the petitioners have sent the bill to the respondent qua detection bill without any inquiry. It is settled principle of law that the first Appellate Curt has all powers to reappraisal the evidence on record while exercising power under Section 96, C.P.C. As the law laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follow:- "This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters; it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council was followed by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmoocf' (NLR 1985 Civil 114). It is pertinent to mention here that the judgment of this Court was up-held by the Honourable Supreme Court. The learned counsel of the petitioners failed to point out any piece of evidence which was misread by the first Appellate Court and passed the impugned judgment in violation of the law laid down by the superior Courts. The learned counsel of the petitioners as mentioned above, failed to bring the case within the parameter prescribed by the Privy Council in the aforesaid judgment, therefore, I do not find any infirmity and illegality in the judgment of the first Appellate Court. It is pertinent to mention here that the electricity connection was disconnected by the petitioners in the year 1990 and the bill was also sent by the petitioners-defendants to the respondent-plaintiff amounting to Rs.22,368/- upto 17th June, 1990. According to the evidence of the petitioners-defendants that respondent-plaintiff has utilized the tube well in-question by under hand means but the petitioners have not initiated any proceedings against their own employees, who are definitely in league with the respondent-plaintiff. Without the connivance of the officials of the petitioners the respondent- plaintiff would not be in a position to use the tube well in-question, therefore, officials of the petitioners have also committed contributory negligence. Coupled with the fact that official/officer of the petitioner did not initiate criminal proceedings against the respondent-plaintiff under the law qua theft of electricity.
In view of what has been discussed above, this revision petition has no merit. However, keeping in view the special circumstances of this case, the petitioners are directed to constitute a committee to probe into the matter, who is responsible official-officer of the petitioners, who would allow the respondent-plaintiff to utilize the tube well in-question without securing any electricity connection from the petitioners, as per principle laid down by the Honourable Supreme Court in "Syed Yaqoob Shah v. Xen, PECO (WAPDA), Peshawar and another" (PLD 2002 S.C. 667). He is directed to complete this process within four months. In case any official-officer is responsible for any misdeed then he is directed to proceed against that official-officer under Efficiency and Discipline Rules. He is directed to complete this process within four months. He is further directed to submit his report to the Deputy Registrar Judicial of this Court within the stipulated period. Office is directed to provide one copy of this Order to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, who is directed to send the same to the petitioners for necessary action and compliance.
With these observations, the revision petition is disposed of.
Civil .