1. MRS. SYEDA TAHIRA SAFDAR, J.---Above titled both the petitions are filed against same judgment made on 24-12-2002 by Senior Civil Judge-I, Quetta and 17-10-2003 by Additional District Judge-V, Quetta, in order to avoid any sort of contradictory orders both the petitions are decided through this order.
2. ' In petition No, 15 of 2004 the petitioners assailed both the judgments dated 24-12-2002 and 17-10- 2003 by trial and appellate Courts, whereby the suit has been decreed in favour of respondent (Daily Meezan) and appeal was partially accepted, while decree was partially maintained. It is their contention that the Courts below failed to appreciate the evidence produced by them, further presumption of truth is attached with their record, which was not rebutted. The admissions made by the respondents thereby accepting the liability are not appreciated by the Courts below. They have prayed for setting aside of impugned judgments and dismissal of suit filed by the respondents.
3. The petitioners (Daily Meezan) in Revision Petition No, 17 of 2004 being aggrieved of judgment dated 17-10-2003 of Additional District Judge-V, Quetta, whereby the judgment passed by Senior Civil Judge-1, Quetta was partially set aside, preferred instant petition on grounds that the impugned order is contrary to law and facts. Further, the appellate Court only heard arguments in respect of application under section 5/14 of Limitation Act, while without hearing arguments on main appeal decided the appeal, without considering the oral and documentary evidence arrived to wrong conclusion. He prayed for setting aside of impugned judgment and upholding the judgment of the trial Court.
4. ' As per record the petitioner Daily Meezan filed a suit seeking declaration and permanent injunction against the respondent (PTCL). He being aggrieved of two notices issued by the respondent under section 81 of Land Revenue Act 1967, whereby he (the petitioner) was directed to deposit an amount of Rs.5,71,814 within 15 days being arrears of Telephone connection bearing No,75089. It is his case that the old number 75089 was changed into new number 828142. Despite the fact that the dues were already paid up-to-date, notice B was illegally issued and the phone was disconnected. He was further threatened, while a post-dated cheque amounting to Rs.1,00,000 of date 30-8-2000 was obtained from him by help of Levies. Thereafter, he approached the Authorities for return of cheque, which was refused. He prayed for declaring him lawful subscriber of Telephone No,828142, while respondents have no right to disconnect the same, further prayed for restoration of it. The respondents/defendants in reply strongly contested the contentions raised by the petitioner/plaintiff. But admitted that the petitioner was subscriber of PTCL having telephone No, 828142 which was converted from old No,75089 due to installation of digital exchange. Further, asserted that petitioner was bad paymaster while usually adopted delaying tactics for payment.
5. Though on several occasions he was allowed to make payment of dues in instalments. Due to this conduct notice under section 81 of the Land Revenue Act was issued, but the petitioner defrauded by issuing Cheque No,50832901, dated 30-8-2000 amounting to Rs.100,000, which was dishonoured. It is their contention that the telephone No,75089 remained intact with Daily Meezan till 3-8-1995 vide advice note No, J-2739 dated 3-8-1995, as such outstanding dues were of Rs.5,71,814 against the telephone. He filed instant suit to get rid off the legal action taken against him. Prayed for dismissal of suit.
6. ' Out of the pleadings of the parties issues were framed. Four witnesses appeared from side of the petitioner, while Jamil-urRehman recorded his own statement as plaintiff, in rebuttal the respondents only recorded statement of their representative. On conclusion of trial the suit was decreed in favour of the plaintiff through judgment dated 24-12-2002 by trial Court. Feeling aggrieved of the same the respondents (PTCL) preferred appeal, which was decided through judgment made c on 16-10-2003 by Additional District Judge-V, Quetta, whereby the appeal was partially allowed. The petitioner still not satisfied with the order preferred present petition for setting aside of appellate order and upholding of order and decree of the trial Court.
7. ' The main contention in instant petition is that the appellate Court only heard the application submitted under sections 5/14 of Limitation Act, instead of deciding this point the main appeal was disposed of without hearing them. The petitioner placed on record the order sheets maintained by the appellate Court. The perusal of the same reveals that through order dated 8-5-2003 the case was fixed for arguments on appeal, which were heard on 8-8-2003 and appeal was reserved for order. The appellate Court while deciding the main appeal at first instance gave findings on point of limitation, whereafter, decided the matter on merits. The petitioner has failed to produce anything contrary to the same to establish his contention. The record shows that the counsel for the parties were heard by the appellate Court. The contention raised by the petitioner has no force.
8. Keeping in view the pleadings of the parties the matter in issue are the two notices issued by the respondents under section 81 of Land Revenue Act for recovery of Rs.5,71,814 as outstanding dues in respect of Telephone No,75089.
9. ' According to the petitioner as he was regularly paying the dues thus nothing is outstanding against him. Further, the old Telephone No,75089 was changed in new number 828142. As such he was no more subscriber of old number after August, 1993, thus not liable to pay the amount in question. The respondent on the other hand admitted the fact that previously the petitioner was subscriber of PTCL having Telephone No,75089 which was later on converted to number 828142 due to installation of Digital Exchange. , It is further an admitted position that no dues are outstanding in respect of new number, which is admittedly paid up-to-date. The dispute is only to the extent of dues of old Telephone number. The second part of the matter in issue is disconnection of telephone No,828142 which is claimed to be illegal by the petitioner, as no dues are outstanding in respect of new number.
10. ' Keeping in view the above mentioned admitted fact's the findings arrived by both the Courts below are not proper nor based on material present on record. Despite admission of the respondent that old number was converted into new number being digital the appellate Court comes to the conclusion that both the numbers are separate while having no connection with each other. While the trial Court also comes to the conclusion that after 1993 the old number was not in use of the petitioner. Both the views are erroneous. A fact which is specifically admitted in pleadings by the parties is not required to be proved through oral evidence and on contrary evidence that too oral, no reliance can be made.
11. ' Apart from the same though the petitioner in his plaint and through evidence tried to establish that nothing is outstanding against him in respect of dues of telephone charges. But perusal of documents placed on record reveals that the petitioner made clear admission about outstanding dues and requested for payment in instalments, further made request for not disconnecting the telephone No, 828142 and also for restoration of the same in his letters issued on different dates addressed to the respondents. The letter produced and exhibited as Exh.D/3, Exh.D/5, Exh.D/6, Exh.D/10, Exh.D/11 & Exh.D/12 are the relevant letters issued by the petitioner seeking time for payment of dues, avoiding of disconnection and also in some for restoration of the Telephone connection. Though the petitioner while admitting contended that the said letters/writings were obtained from him forcibly. But he failed to establish his contention, as he never approached Authorities or even any Court complaining the coercive methods adopted by the respondent at relevant time. Even in present suit he sought no relief to same extent. As far as issuance of cheque is concerned, the petitioner while admitting the same asserted that the cheque was forcibly obtained from him being threatened him for arrest. No evidence or material in same respect has been produced by him in order to establish the same. His contention to this extent also remained unproved. But this fact has come on record that said cheque was issued by the petitioner in respect of payment of outstanding dues, which was dishonoured. This shows that nothing was paid by the petitioner in respect of outstanding dues, which were otherwise admitted.
12. ' In addition to the same certain other documents are placed on record, which are not considered by both the Courts. Exh.D/17 is letter issued by General Manager, Western Telecommunication Region Quetta to Senior Accounts Officer, Telephone Revenue Quetta for recovery of outstanding dues amounting to Rs.4,14,365 in instalments of Rs.10,000 per month in respect of Telephone No,75089 from subscriber of the phone i,e, Daily Meezan. This letter bears date 7-7-1993. Exh.D/22 is the manual Telephone bill of Rs.5,71,814, dated 26-2-2000, while Ex:D/25 and Exh.D/28 are orders for disconnection of working telephone against defaulter connection, both are issued on 28-6-2000 and 4-9-2000. As per contents of the same new Telephone No,828142 is working against the defaulted No,75089 in defaulter premises/in the name of defaulter, thus to make the defaulter to pay arrears of Rs.5,71,814 his working Telephone No,828142 be disconnected. The existing telephone connection was disconnected by the respondent, it is also an admitted position. These documents are not rebutted by the petitioner.
13. In view of above discussion it has been established that the petitioner was subscriber of both the Telephone numbers/connections, while as per his own admissions made in the letters issued by him amount in respect of dues are outstanding against him, which was not paid despite undertakings given by him time and again. The amount which is claimed by the respondent as dues of Telephone No,75089 is also not denied by the petitioner in his letters admittedly issued by him, as such, thereafter, he cannot take any adverse plea before the Courts, only in order to avoid the amount for which he is surely liable to pay. The petitioner being the defaulter, thus not entitled for any concession. As surely the new telephone No,828142 is working against the defaulted telephone No,75089, therefore, without payment of outstanding dues the present number i,e, 828142 cannot be restored. The fact that the dues in respect of new number has been paid make less difference in the circumstances. Both the Courts below misappreciated the material present on record and come to the wrong conclusion which are liable to be set aside.
14. ' In view of above discussion the petitioner (Daily Meezan) has completely E failed to make out any case in his favour, while on the other hand the respondents/petitioners in Civil Revision Petition No,15 of 2004 have established their contention, therefore, the Revision Petition bearing No 15 of 2004 is hereby accepted, while revision petition bearing No,17 of 2004 is dismissed being without merits. Thus judgment dated 24-12-2002 of Senior Civil Judge-I, Quetta and judgment dated 17-10- 2003 of Additional District Judge-V, Quetta are hereby set aside. The suit filed by the petitioner/plaintiff (Messrs Daily Meezan) is hereby dismissed being devoid of merits. No orders as to costs.