1. ' GHULAM DASTAGIR A. SHAHANI, J.---1, 2 and 3. Heard Mr. H. Rai Khimani learned counsel for the applicant. As per record on 3-10-2007 and 21-4-2008 application for certified copies of the relevant documents including judgment and decree was submitted by the learned counsel for the appellant, but same was prepared on 21-4-2008 and on a same date stamp was supplied and copy was delivered to him and produced the same with statement on same date before this Court.
2. As decree was framed/ prepared on 21-4-2008 the limitation will start from A the date of the passing of the decree. Reliance is placed in a case of The Government of West Pakistan and others v. Niaz Muhammad (PLD 1967 SC 271) and Muhammad Shafi v. Sirajuddin and 3 others (1985 CLC 1788). However party cannot be penalized for delay if any on the part of the office in respect of preparation B of the decree so late, as such C.M.A. No,1473/2008 is allowed, so also C.M.A.
3. No,1474/2008, as no further orders are required to be passed as compliance is made by supplying a required Court fee stamp worth Rs,15000.
4. Granted for the time being subject to all just exceptions.
4. 5 and 6. Through this II-Appeal, the appellant called in question the judgment dated 28-9-2007 passed by II-Additional District Judge, Karachi East and the judgment and decree passed by Senior Civil Judge dated 8-10-2004 and 13-10-2004 respectively.
5. ' Facts in brief as alleged are that appellant is one of the partner in a Firm comprising three partners, and running their business in the style of "SATTARI GARMENTS" at plot No,1-D, Sector 15, Korangi Industrial Area, Karachi. The said property was purchased by the appellant and other two partners in J.M. No,41 of 1994. The appellant further asserted that, he is a consumer of respondent No,2 in respect of Meter No,AP-70639, A/C No,56115811 and Al-/871298. Account No,5611827, for which 20 and 3 Kilowatt to its previous owner were sanctioned, who was running a Garment Factory. The appellant is regular in payment of electricity bills and consumption of electricity by the appellant is approximately 3000 to 3400 units per month. It is further averted that on 28-2-2001, the respondent No,2 deputed three officers to identify all energy operated and installed equipments in the premises of appellant to determine actual installed load equipments in the premises of appellant to determine actual installed load for their use within one hour and determine load of 63 kilowatts and then reduced to 38 K.W. As against sanctioned load of 20 and 3 K.W. While running load was 19.4. K.W, which evidenced from their own inspection. The respondent No,2 issued notice dated 1-3- 2001 under Electricity Act 1910 alleging that duly sanctioned load of appellant was nil while connected load was found in excess by 10 K.W. And 64 K.W. The appellant duly replied the notice dated 30-3-2001 and asked for sanction the proposed load i.e, 18 K.W. The appellant on 11-4-2001 paid an amount of Rs,162,500 to the respondent No,2 for extension of load 18 and 4 K.W. As a security deposit and system development charges. It is further alleged that the respondent No,2 demanded extra amount of Rs, 70,700 by showing the illegal arrears in the billing month of May 2001 showing load 64 KW but the appellant paid the same on 8-6-2001. The respondent sent bill for the month of June 2001 and illegally demanded Rs,6,73,176 and by inclusive the taxes, bill accumulated to Rs,689,900 to be paid till 7-7-2001 and threatened that non-payment of cited amount on or before 7-7-2001 shall constitute sufficient cause for disconnection of power. It is further alleged that energy cost is charged on the basis of its actual consumption and not on the basis of number of electric appliances installed by consumers, which is evident from the copies of paid bills i.e, Rs,3809 to Rs,30,000 and from Rs,5855 to Rs, 28,598 respectively on both the meters.
6. ' As per record present appellant is one of the partners in a private firm, on the basis of unregistered partnership Deed dated 20-7-2002, comprising three partners namely Gulab Rai, Haresh Perwani and Santosh Kumar (present appellant) and running their business in the style of "SATTARI GARMENTS", plot' No,1-D, Sector 15, Korangi Industrial Area, Karachi. According to appellant, the said property was purchased by them in J.M. No,41 of 1994. The appellant further states that they are consumer of respondent No,2 and not in arrears/dues and are regularly paying electricity charges, but they received excess bill for the month of June 2001, illegally demanded Rs,689,900 to be paid till 7-7-2001. Being aggrieved and dissatisfied one of the partner namely Gulab Rai exhausted remedy by filing a Constitutional petition No,D-1624/2001 by his name and not as a partner/proprietor on 3-7-2001, but on 23-8-2002, same was dismissed as not pressed and following order was passed:-- "Learned counsel holding brief submits that the petitioner will approach the Electrical Inspector, Government of Sindh for resolution of the controversy regarding impugned bill for the months of June 2001 amounting to Rs,689,900 therefore, he does not press this petition. Learned counsel for the respondents undertakes that the Electric supply to the petitioner through the relevant Meter shall not be disconnected for 15 days from today.
7. ' In view of the above, this petition stands dismissed as not pressed along with listed miscellaneous application...
8. ' Application was submitted with Electric Inspector on 28-3-2003, and matter was finally decided by the Electric Inspector on 26-5-2005 and that order attained finality, as same was not challenged before the Appellate Forum. So far second partner namely Haresh Pewani is concerned, he availed remedy by filing suit on 3-9-2002 with the Court of IV-Senior Civil Judge, Karachi East for declaration and injunction with a prayer that plaintiff (Haresh Perwani) is liable to pay only the actual consumed electricity charges, as per meter reading No,AP-070639 A/C No,56115811 and further that bill issued by the defendant for the month of June 2001 showing an arbitrary figure worth Rs,689,900 is illegal and they may be restrained from recovering the aforesaid amount and be also directed not to disconnect the electric supply of the aforesaid factory. However, injunction application was dismissed, so also a plaint was rejected vide judgment dated 8-3-2003 and Decree prepared on 10-3-2003. Being aggrieved Haresh Perwani filed Civil appeal No,84/2003, which was allowed and matter was remanded in order to decide the same on merits vide judgment dated 24-1-2004 passed by the then learned District Judge Karachi East, whereas, on remand, IV-Senior Civil Judge, Karachi East after framing a preliminary issue dismissed the suit, being not maintainable vide judgment dated 8-10-2004 and decree framed on 13-10-2004. Above named Haresh Perwani preferred a civil appeal No,198/2004, but that was also dismissed vide judgment dated 28-9-2007, though decree was framed on 21-4-2008, by II-Additional District Judge, Karachi East.
9. ' Whereas, third partner namely Santosh Kumar (present appellant) preferred present II-Appeal on 30-1-2008 directly without exhausting remedies available before another forum at the first instance. The question is whether they can exhaust such remedies separately as availed by them from different forums/Courts at a time, on same cause of action and subject matter, though they all are well aware in this respect from very beginning including orders passed on 23-8-2002 in C.P.
10. No, 1426/2001, as well as subsequent order passed by Electric Inspector, dated 26-5-2005 and it attained finality, being not challenged with effect from 26-5-2005 by Gulab Rai.
11. ' They all are also aware in respect of Civil Suit No,827/2008 and order passed thereon time to time, so also in respect of Civil Appeal No,198/2004, which finally dismissed vide judgment dated 28-9- 2007 and decree framed on 21-4-2008, and not challenged by Haresh Perwani. Now at this stage present II-Appeal directly preferred by producing a number of documents which were not produced and challenged/agitated before any forum by other partners, reasons best known to them and they remained silent and present appellant became so active, create doubt in mind that there is something fishy and that is the reason that Trial Court, as well as appellate Court have not extended relief to Haresh said to be a partner of so-called private firm on the basis of unregistered partnership Deed dated 20-7-2002.
12. ' Learned counsel for the appellant was directed to satisfy whether at present who was not a party to the proceedings before the Courts below, could prefer II-Appeal against the judgment and decree and how he is a proper and necessary party and what are the legal issues or any error committed by the Courts below to prefer a II-Appeal. Learned counsel has relied upon 2008 CLC 946, PLD 1982 AJ&K 26, 1982 CLC 513, 1996 CLC 198, 1992 MLD 1257, PLD 1985 SC 345, PLD 1996 Pesh. 32, 1990 CLC 151, 1986 CLC 1033, 1996 CLC 1252, 1987 CLC 1219, PLD 1986 AJK 184, 1988 CLC 25, PLD 1996 Lah. 99, PLD 1987 AJK 49, 1980 CLC 897, 1991 CLC 1616, YLR 2008 Lah 911 And PLD 2004 SC 894. Law submitted by the learned counsel is mostly on Order VI, Rule 17 C.P.C., where application moved for amendment in a pleadings at late stage is allowed, which cannot be denied, as C amendment can be allowed even at the stage of Honourable Supreme Court if by that amendment subject-matter remained same and does not change the nature and character of the suit. Whereas, some of the citations relied upon are in respect of powers of the Court to amend any defect of error at any stage under section 153, C.P.C. Or for additional evidence and on the point of limitation respectively.
13. So far jurisdiction of the Civil Court is concerned, admittedly Civil Court is a Court of ultimate jurisdiction even if jurisdiction is barred civil Court can see any illegality and mala fide done by any Forum, Tribunal or Authority. Reliance is placed in a case of 1974 SCMR 356 and PLD 1970 SC 180 respectively. So far present case is concerned is not a case of amendment or defect or error, but a case of suppression of facts and mala fide, which is not fair on the part of above named partners, though they were fully aware and in knowledge, and feel that they are avoiding from payment of arrears/dues nothing else. Otherwise at the time of filing of the suit matter was admittedly pending and subsequently decided by the competent forum and nobody challenged a particular order passed by the Electric Inspector, but they approached to a different forum, though subject-matter was same and they claim to be partners of a same firm and suppressed the facts and not produced a copy of application moved to Electric Inspector in the Court of IV-Senior Civil Judge, Karachi East (as observed by the Additional District Judge (E) Karachi) and produced the same at appellate stage whereas, order was passed by the Electric Inspector on 26-5-2005, but a copy of said order was not produced in appeal, though appeal decided subsequently on 28-9-2007, by II- Additional District Judge Karachi East and copy of the order passed by Electric Inspector is produced by Santosh Kumar (present appellant) and order passed by Electric Inspector attained finality being unchallenged. As such at a time on same cause of action and on same subject- matter individually remedy cannot be availed, as settled principles are that once jurisdiction is invoked party will be stopped to challenge subsequently.
14. ' On perusal of record, it further reveals that present appellant was not a party of previous C.P.
15. No,14256/2001, nor approached to the Electric Inspector and order was passed on an application submitted by one Gulab Rai. So far suit No,827/2002 and subsequent proceedings upto the dismissal of Civil Appeal No,198/2004, one Haresh Perwani was a party and first time present appellant has preferred II-Appeal, though Second Appeal shall lie from every decree passed in appeal by a court when decision was contrary to law or courts below failed to determine some material issue of law or a substantial error or defect in the procedure provided by C.P.C. Or by any other law for the time being in force. Second Appeal will also lie against the decree disallowing the respondents cross objections or decision is not based on a judicial consideration same would not lie on the question of facts and is to be summarily rejected. However reliance is placed in a case reported as Razi Begum v. Iqbal Begum and 7 others PLD 1957 Writ Petition Lah. 1040), wherein, it was observed that no person unless he is a party to the suit is entitled to appeal. Further it is G very surprising to note that from very beginning respondents have never taken a plea that proceedings were barred under Order XXX, Rule 1, C.P.C. Which provides that any two or more persons claiming or being liable as partners and! Carrying on business in Pakistan may sue or be sued in the name of firm (if any) of which such persons were partners at the H time of occurring of the cause of action. From record, prima facie it appears that electricity bills were being issued to Messrs. Sheir Enterprises and not in the name of any individual partner and cause of action if any on same subject-matter and partner of the firm of Sattari Garments cannot chose different forum of their choice. I have gone through the judgment and decree passed by two Courts below and relied upon the order dated 23-8-2002 passed by this Court in C.P. No,1426/2001. Which was disposed of as not pressed. Admittedly Constitutional petition was filed by Gulab Rai so also application with Election Inspector and Haresh Perwani availed remedy by filing a Civil Suit so also civil appeal though subject-matter and cause of action is same and all claims to be partners of a firm known as Sattari Garments comprising of three partners named above. As such suit and appeal filed by Haresh Perwani were rightly dismissed and there is no justification when there is no substantial error or defect in the procedure provided under the law to file a II appeal by the present appellant who was not a party at any stage with effect from 2001 upto the dismissal of Civil Appeal No,198/2004.
16. ' In view of above facts and circumstances there is no justification to interference at this stage. As such present appeal is dismissed in limine.