' JAWWAD S. KHAWAJA, J.---This petition filed by Saeed Sultan petitioner/plaintiff impugns the appellate judgment and decree dated 12-2-1999, whereby the decree of the learned trial Court dated 8-3-1997 was set aside and a suit filed by the petitioner/plaintiff seeking declaration, was dismissed.
2. The facts of this case are simple. Telephone connection bearing No,3749 was installed at the premises of the petitioner, but was disconnected somewhere in March, 1990. Thereafter on the petitioner approaching the respondent PTCL, a demand note was issued requiring him to deposit a sum of Rs,500 as restoration charges as Rs,175 being line rent for five months at the rate of Rs,35 per month. It is not in dispute that this amount was, in fact, deposited. The case of the petitioner, however, is that the telephone connection was not restored despite the deposit.
3. Notwithstanding the above position, the plaintiff received a bill for Rs,31,051, dated 16-1-1993 from the respondent. It is in these circumstances that the petitioner filed a suit to assail the aforesaid bill.
The petitioner's brother, who lives with him in the same house in which the telephone No,3749 had been installed, appeared as P.W.1. He deposed that the telephone connection had not been restored after the initial disconnection in 1990.
4. The respondents contended that the connection had been restored, but did not produce the relevant record through which this assertion could have been proved. The only documents produced on record by the respondents/defendants are the deposit challan evidencing payment of Rs,675 by the petitioner with United Bank Limited on 17-6-1990 and a document (Exh.D.2) which is part of the record of the respondents/defendants Exh.D.2 bears a noting of the Assistant Engineer Phones, Qila Sheikhupura that before restoring the aforesaid connection the genuineness of the case by verified. This document does not prove that the connection was actually restored.
5. The respondent PTCL did not produce any record to show that the telephone connection had been restored and had been used by the petitioner. Furthermore, no billing between 1990 and 1993 or other record of use of the telephone has been produced on record.
6. In spite of the above 'situation, the learned trial Court, on its own motion, gave opportunity to the respondents/defendants to produce the relevant record. For this purpose, the learned trial Court also summoned and examined Muhammad Khalid, Assistant Engineer Telephone as court-witness.
The said witness did not produce the record and stated that he was not in a position to do so.
Furthermore, the said witness testified that if a bill was not paid by a consumer, his telephone line was disconnected. This testimony also provides circumstantial evidence in support of the petitioner because a bill amounting to Rs,31,051 could not have arisen if the telephone connection had, in fact, been restored and the petitioner had not paid the monthly bill. It is clear from the procedure, detailed in the testimony of the Assistant Engineer/court-witness, that if the petitioner's telephone connection had, indeed, been restored in 1990, the same would have been disconnected because no amount was paid by the petitioner after June, 1990.
7. The learned trial Court has examined the above aspects of the case while decreeing the suit filed by the petitioner. The learned appellate Court has misdirected itself. I note from the appellate judgment that the learned Court has proceeded on the basis that the petitioner had claimed to have made the payment of the amount of Rs,31,051. This was, in fact, not the case of the petitioner, who had alleged in his plaint and proved through his witness P.W.1 that his telephone connection had not been restored.
8. In the foregoing circumstances, I find the appellate judgment and decree to the contrary to the record. It is, therefore, not sustainable and is set aside. As a result, the decree of the learned trial Court dated 8-3-1997 stands restored.