' IKRAMULLAH KHAN, J.---Through the instant civil revision petitioners have challoged the impugned judgment of learned Additional District Judge-VII, Mardan dated 29-5-2012, whereby the appeal against the judgment of learned Civil Judge, Mardan, dated 28-10-2011 was dismissed.
2. The facts leading to this petition for revision are that respondent instituted a declaratory suit against the petitioners, whereof, challenged the validity of the detection bills sent to respondent by petitioners for the month of May, 2009, wherein Rs, 303311 for consumed units 32384 was demanded thereof to be paid by the respondent within a stipulated time, well mentioned therein the impugned detection bills.
3. The respondent, while contesting the suit, apart from many other legal and factual objections, particularly raised the plea that the meter installed thereof for the purpose of detecting the units of energy consumed by the petitioners flour mills, was found defective and as such, the respondent has committed theft of energy, and civil Court had got no jurisdiction to adjudicate upon such nature of dispute.
4. The learned Civil Judge, there out from the divergent pleadings of the parties, casted the respective issues and parties were put to substantiate their respective stance, alleged and denied therein their pleadings by adducing their respective evidence.
5. On the conclusion of the required trial in the suit, the learned trial Court decreed the suit in favour of the respondent as prayed for.
6. The petitioners, being aggrieved by the judgment passed by the learned Civil Judge-XI, Mardan, preferred an appeal before the learned District Judge, Mardan, which was dismissed, thereafter considering the arguments on behalf of both the parties through its impugned judgment.
7. The petitioners' main grievance, which has also been seriously raised throughout their pleadings, memorandum of appeal and revision, that as the matter exclusively pertains to defect, detected through by the petitioners in the meter, which had been confirmed by the laboratory report too, the impugned judgment is without jurisdiction, coram non judice, not maintainable and sustainable.
8. The learned counsel for the respondent was given a patient hearing, who supported with vehemence the impugned judgment and contended that civil Courts are Courts of plenary jurisdiction, while section 9 of the C.P.C., 1908, invest the civil Court to adjudicate upon all kind of civil nature cases; that the dispute is not of the nature to be referred to the Electric Inspector, thereunder section 26(6) of the Electricity Act, 1910, therefore, the civil Court has rightly assumed the jurisdiction in the subject-matter.
9. I heard the representative of the petitioners and the learned counsel for the respondent and carefully gone through the record.
10. The records reveals that the detection bill was issued to the respondent; on the basis of the laboratory report whereas, it was opined that the meter was defective, which had been checked in presence of the respondent by a duly constituted committee on the direction of the XEN concerned. The respondent was charged for the corresponding months for its consumption as per electricity rules, due to theft of the energy by respondent.
11. As the dispute is not an extraneous one, but pertains to theft of energy allegedly committed by the respondent, thereby manipulating with the meter B supplied and installed in the respondent premises for the detection of the units of energy, likely to be consumed.
12. The respondent had challenged thereof through its suit the validity and correctness of the detection bills issued to him, wherein, the respondent was charged for an aggregate units, corresponding to the previous months, being found manipulated the meter.
13. Prior to give any finding on the merit of the case, this Court deem it appropriate and necessary to first advert to the question of jurisdiction.
14. The provisions of the Electricity Act, 1910, contained thereunder subsection (6) of section 26, envisaged as under:- [26(6); Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or in not correct, the matter shall be decided, upon the, application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, maximum demand indicator or,measuring apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where either the licensee or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final: ' Provided that, before either a licensee or consumer applied to the Electric Inspector under this subsection, he shall give to the other party not less than seven days' notice of his intention so to do.]
15. The petitioners in such a case, when, the meter was found .To be defective and the consumer had have through this defect, had consumed energy, more than, detectable through the defective meter, may take recourse to the provisions of the Electricity Act, 1910, contained there under section 26-A, as;-- Section 26-A.....Dishonest abstraction of consumption of energy. Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or use, for the period during which the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, Remained connected, dis-connected, injured, altered or prevented from registering the amount of energy supplied or the electrical quantity contained in the supply-consumer's connected load or maximum, demand in kilowatt hours during any period;
(a) consumer's maximum, consumption of energy in kilowatt hours during any period;
(b) consumer's load factor;
(c) the power of consumer's load;
(d) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and
(e) the purposes for which the energy is deemed to have been abstracted, consumed or used by the consumer.
16. The question of jurisdiction, which remained sub judice before various Hon'ble Superior Courts since long, it would be not out of context to give reference thereof to the three judgments of significance placing construction on the above statutory provisions on the extent to which the Electric Inspector or the Advisory Board constituted in the Electricity Act, can exercise powers regarding allegation by the license of theft by the consumer.
17. The first judgment is that of the Hon'ble Lahore High Court which was delivered in case of "Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56). The 2nd one was delivered by the Hon'ble Apex Court in case of "Colony Textile Mills Limited, Multan v. Chief Executive MEPCO (2004 SCMR 1679) and the 3rd one rendered thereof by the Hon'ble Supreme Court of Pakistan in case of "Multan Electric Power Company Limited v.
Muhammad Ashiq" (PLD 2006 SC 328).
18. The learned counsel for the respondent mainly relied on the judgment of the Hon'ble Lahore High Court, ibid and on the strength of this judgment supported the impugned judgment, also relied on another judgment reported as PLD 2006 Lahore 555, given therein case of "WAPDA and others v. Muhammad Javid and others" .
19. No doubt the Hon'ble Lahore High Court had held in the above two judgments that in case the theft of energy has been committed through any other means, not involving the metering equipment, in such a situation the provisions contained thereunder section 26(6) of the Act, would not be applied, but as per the judgments of the Hon'ble Apex Court, in case the meter is either manipulated or tampered and the energy is stolen through using the meter, such a dispute, where arises between the License and consumer, shall be referred to the Electric Inspector or to the Board under the provisions contained thereunder section 26(6) of the Electricity Act.
20. The jurisdiction of the Electric Inspector is confined to the controversy relating to the matters falling under section 26(6) of the Electricity Act, 1910, whereas the dispute or the matters relates to the correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity shall be referred to the Electric Inspector.
21. In present situation, the dispute between the parties obviously pertains to the defect caused therein the meter, which was detected by the test of laboratory, certainly was a dispute of the kind, which attract the provisions of section 26(6) of the Electricity Act, 1910 and as such, the civil Courts was out of jurisdiction to give findings on a matter exclusive determinable by the Electric Inspector.
22. Both the learned lower Courts assumed and exercise jurisdictions not vested in them as such have rendered the impugned judgments without jurisdiction.
23. In view of the reasons given hereinabove, this revision petition is allowed and consequently both the impugned judgments passed by both the learned lower Courts are accordingly set aside.
24. The suit is returned to the respondent, with direction to seek its remedy, therein any competent forum if he so advised, subject to all legal and valid objections by the order party.