' MUHAMMAD NOOR MESKANZAI, J.---By this common judgment, we propose to dispose of Regular First Appeals Nos.1 and 21 of 2012, as both the appeals have been filed against the same judgment/decree and common questions of facts and law are involved.
2. The brief facts, relevant for the disposal of instant appeals are that the appellant/plaintiff (in R.F.A No.1 of 2012) instituted a suit for Declaration Cancellation of Gas Bills and Permanent Injunction against the respondent in the Court of Senior Civil Judge, Hub. It was averred in the plaint that the plaintiff/appellant is running business of Hotel by the name and style of `Awaran Hotel', situated at RCD Road Hub. The appellant applied for installation of Gas Meter at his Hotel and the respondent installed Meter No.21372378M. On 28th January, .2003 abruptly ' Gas pressure became low and on checking, it transpired that the Meter is not running, whereupon; the plaintiff, on the next day early, in the morning, informed the respondent consumer service department and duly obtained receipt regarding the complaint so made by him. Despite complaint, repeated verbal, telephonic messages and visit of respondent's official at the hotel no efforts were made for the correction of the meter. So much so, in the month of August, 2003, the appellant again approached the respondent and showed earlier/previous receipt, but all in vain. On 9th August, 2003, the appellant received a letter issued by Billing Manager Commercial Department, wherein an estimation of unregistered past gas was sent and total amount of the same was shown Rs.28,134.68. It was clearly mentioned in the letter that the amount of Rs.28,134.68 ,is the amount of ceased meter which could not register the flow of gas due to some mechanical defect. On receipt of said letter, the appellant .Visited the office of respondent with the request that he has such the bill of Rs.28,134.68 is without any justification and liable to be withdrawn. The respondent instead of withdrawing the said bill directed the appellant to pay another amount of Rs.36,000 on the ground that the appellant has tampered the previous Meter No.21372378. According to plaintiff, the meter regarding which he had made complaint, was replaced of after six months and at the time of replacement no allegation of tampering was levelled. In fact, after installation of Meter No.20234023, the officials of respondent visited the hotel of plaintiff and demanded illegal gratification. On refusal by the plaintiff, they threatened the latter for dire consequences and to achieve the object within the month of October, 2003, Meter No.8499611 was installed without any reason and justification. It was further averred in the suit that on failure of respondent to extract illegal gratification from appellant, they issued a false and fictitious bill for the period from January, 2001 up to May,. 2003 and demanded arrears of Rs.51,984.
3. The suit was contested by defendant/respondent by way of filing written statement, wherein besides raising certain preliminary objection the claim of the appellant was resisted on merits.
4. The learned trial Court, out of the pleadings of the parties framed following issues:--
(1) Whether .The suit is not maintainable, in, view of the P.L. Os I, 1.1, 2 and 3 of the written statement?
(2) Whether the impugned bill/notice for payment of the Gas consumption charges, otherwise disconnection of gas supply issued by the defendant-company is baseless and fabricated?
(3) Whether the plaintiff is entitled to the relief claimed for
(4) Relief
5. Thereafter, the parties were directed to adduce evidence in respect of their respective claims.
The plaintiff produced two P.Ws., whereas in rebuttal, the defendant adduced three D.Ws, besides representative of defendant namely Saeed Ahmed recorded his statement.
6. The learned trial Court after hearing the parties and evaluating the evidence vide judgment/decree referred to hereinabove, dismissed the suit and directed the plaintiff to pay gas charges for the period from. July, 2001 to May, 2003 amounting to Rs.310,000 (Rupees Three lacs and Ten thousand) instead of Rs.741,334 (Rupees Seven lacs Forty One Thousand and Three hundred thirty four). The judgment motivated both the parties to challenge the impugned decree, resultantly, instant appeals were filed.
7. Learned counsel for the appellant in R.F.A. No.1 of 2012 and respondent in R.F.A. No.21 of 2012 argued that the learned trial Court, while passing t the judgment/decree impugned violated the provisions of Order XX Rule 5, C.P.C. As it failed to record findings on each issue separately. It was further argued that the learned trial Court failed to take into consideration the documentary evidence relied upon by appellant. Learned counsel stressed that while resolving issue No.2 the learned trial Court failed to record any cogent reason and without any legal justification directed the appellant to deposit Rs.3,10,000 despite of the fact that respondent totally failed to prove the issue. The learned trial Court failed to discuss the evidence produced by the appellant and in a slipshod manner formed opinion that the appellant is liable to pay an amount of Rs.3,10,000.
Learned counsel emphasized that the learned trial Court failed to appreciate the evidence in its true perspective. The respondent absolutely failed to rebut/negate the claim of plaintiff, On the contrary the latter succeeded to prove that the demand of respondent was illegal, unjustified and result of refusal of appellant to pay the illegal gratification but all these important facts escaped notice of the learned trial Court. Lastly the learned counsel argued that as the judgment impugned herein is result of misreading and non-reading of evidence, as such, the same is not sustainable under the law and liable to be interfered with by this Court by way of decreeing the suit filed by plaintiff..
On the other hand, learned counsel for respondent in R.F.A. No.1 of 2012 and appellant in R.F.A. No.21 'of 2012 strenuously argued that the respondent by producing report fully proved that the appellant has tampered the gas meter. He is legally bound to pay Rs.7,41,3341 but the learned trial Court without any rhyme or reason directed the appellant to pay Rs.3,10,000. Learned counsel canvassed* that the respondent proved their claim by producing trustworthy and confidence inspiring oral as well as documentary evidence but the learned trial Court by misappreciating the facts drew conclusions that are neither legal nor factually correct and plausible.
8. We have considered the arguments advanced by the learned counsel for parties and perused record of the case. The perusal of the record reveals that the trial Court resolved the preliminary objections raised by defendant, in a mechanical way. For instance the trial Court while resolving preliminary legal objections Nos.1 and 2, resolved the issue by holding that since the plaintiff is residing within the territorial jurisdiction of this Court and the cause of action also accrued to the plaintiff within the territorial jurisdiction of trial. Court, the Court is competent to adjudicate upon the matter. The court was required to have adhered to the provision of Order XX, C.P.C. And the matter should have been decided in the light of said provisions. As far as crucial issue i.e. Issue No.2 is concerned neither the trial Court referred the gist of the evidence nor discussed the same meaning thereby the trial Court failed to appreciate the evidence. In order to appreciate the evidence, legally the trial Court is required to go through the record independently and reproduce the material portion of the evidence and resolve the issue with reference to the evidence by analyzing the same: Bare perusal of the judgment makes it crystal clear that the trial Court did not bother to reproduce the gist of evidence nor discussed the same. The trial Court neither accepted the evidence of either party nor rejected the same but surprisingly directed the plaintiff to pay Rs.3,10,000 to the defendant instead of Rs.7,41,334. The arbitrary and mechanical conclusions are neither legal and lawful, nor rational, reasonable, plausible and justifiable, as such are liable to be declared illegal, perverse and without legal basis, that is why both the parties are not satisfied with the findings. Thus in such view of the matter, we are of the considered opinion that the judgment/decree dated 29th December, 2011 has been passed by the trial Court in utter violation of mandatory provisions of law; as such are not sustainable.
' For the foregoing reasons, we are inclined to accept both the appeals, set aside the judgment/decree impugned and remand the case to the trial Court with direction to rehear both the parties and decide the matter afresh within one month after receipt of this judgment by specifically adhering the provisions of Order XX, Rule 5, C.P.C. And the observations made hereinabove. Decree sheet be drawn.