' CH. MUHAMMAD MASOOD JAHANGIR, J. --- The facts germane for the disposal of instant civil revision are that respondent No. 1 being consumer of the petitioners/FESCO had been consuming the energy through the connection obtained from the petitioners/FESCO, who issued the bill for the month of September, 2007, amounting to Rs. 13,11,558/- on account of bill adjustment against the respondent/plaintiff. The respondent/plaintiff challenged the vires of the said disputed bill before the learned Trial Court by filing a suit for declaration against the petitioners/FESCO with the assertion that he was regularly paying the bills for the consumption of energy and nothing was due against him, but the petitioners/FESCO mala fidely issued the disputed bill without any prior notice in spite of that not any amount and arrears were payable by him till August, 2007. It was also alleged that no complaint was ever lodged against the respondent/plaintiff and there was no dispute between the parties, but the petitioners/FESCO without assigning any reason, issued the disputed bill while relying upon an alleged audit report and he prayed for the cancellation/correction of the disputed bill.
2. On the other hand, the suit was resisted by the petitioners/FESCO by filing written statement with the assertion that the respondent/plaintiff was not paying the bills according to his consumption; that the respondent/plaintiff and the other consumers manipulated the record of the department in connivance with the officials of the department and when the said fact was revealed to the department, they got lodged an F.I.R./criminal case against the officials; that loss had been caused by the respondent/plaintiff and the bill issued by the petitioners/FESCO was based on exact consumption.
3. The learned Trial Court captured the disputed area of facts by striking the issues keeping in view the divergent pleadings of the parties. Both the parties produce their evidence in pros and cons and after appreciating the same, learned Trial Court decreed the suit filed by the respondent/plaintiff vide judgment and decree dated 21.02.2013. Feeling dissatisfied, the petitioners/FESCO filed an appeal before the learned lower Appellate Court, who dismissed the same vide judgment and decree dated 28.02.2014, hence this civil revision.
4. Learned counsel for the petitioners/FESCO has argued that the impugned judgments and decrees passed by both the learned Courts below are not sustainable on legal as well as factual side of the case; that in fact after observation of less billing by the Revenue Officer and on his request to the Chief Executive FESCO, a high powered committee was constituted, who thoroughly probed the matter and after examination of the record of billing, a detailed report was prepared regarding the less billing amount of the present respondent as well as some other consumers; that the report was verified by the Deputy Chief Auditor, Headquarter FESCO; that both the learned Courts below without adverting to the said substantial and material aspect of the case, decreed the suit filed by the respondent/plaintiff; that both the learned Courts below without appreciating the evidence available on file passed the impugned judgments and decrees, which are not free from any taint misreading and non-reading of evidence; that the learned Trial Court had no jurisdiction to entertain the suit, but both the learned Courts below without adverting to the said legal aspect, passed the impugned judgments and decreed the suit filed by the respondent/plaintiff. He lastly prayed for the acceptance of the instant revision petition, setting aside of the judgments and decrees passed by both the learned Courts below and that the suit be dismissed.
5. Arguments heard. Record perused.
6. It is straightaway noticed that the FESCO while filing written statement did not raise any objection regarding the jurisdiction of the Court. Even during the proceedings of the case, the petitioners/FESCO do not make any application for rejection of the plaint or for striking off the issue regarding the jurisdiction of the said Court. Further the petitioners/FESCO did not raise the same question of jurisdiction in the memorandum of appeal filed before the learned lower Appellate Court. The learned counsel for the petitioners/FESCO has raised the said objection for the first time before this Court by filing the instant civil revision, which cannot be hardly allowed to be agitated at this forum for the first time.
7. Both the learned Courts below while rendering their findings mainly on issue No. 1, decreed the suit filed by the respondent/plaintiff. The said issue is reproduced hereunder for ready reference:- "Whether the plaintiff is entitled to get the decree for declaration as prayed for? OPP"
8. To discharge the onus of said issue, the plaintiff/respondent produced Haji Abdul Aziz as PW1, Muhammad Ilyas as PW2, Sabir Hussain Jafri, Record Keeper/Assistant Manager Operation, SDO, FESCO, Chiniot, as PW3, Muhammad Yousaf Record Keeper, office of XEN, FESCO, Chiniot as PW4, Syed Own Abbas Shah LDC Record Keeper, office of R.D. FESCO, Chiniot, as PW5, Arshad lqbal, Commercial Superintendent/Record Keeper, office of FESCO, Faisalabad as PW.6, Sarfraz Ahmad, Head Constable/Moharrar P.S. City Chiniot, as PW.7, and Muhammad Azim, Addl. Chief Auditor, FESCO, Faisalabad as PW.8. He also produced documentary evidence Ex.P1 to Ex.P9. The petitioners/FESCO produced Muhammad Yasir, Audit Officer (DW1) and Nadeem Sajid, Revenue Officer (DW2) besides the documentary evidence. The statement of Own Abbas PW5 is relevant who deposed in his examination-in-chief that there was no notice in their record which could have been given to the respondent/plaintiff prior to the completion of audit note and that completion of audit note was not given by the audit party. He further deposed that the investigation report was not in his record and it belonged to higher authority and proceedings of audit team were not part of his record. He further admitted that order for audit of department was not on his record. The deposition of said PW makes it clear that no notice was issued by the petitioners/FESCO to their consumer/plaintiff prior to the issuance of the disputed bill. Other witness Muhammad Azim PW.8 Addl. Chief Auditor, FESCO, Faisalabad, deposed in his examination-in-chief that he had brought audit note prepared by the department against the respondent/plaintiff which belonging to the period from July, 2006 to December, 2006. He further deposed that the audit note did not contain any note written by the Revenue Officer, Chiniot, and the same also did not bear the stamp of Revenue Officer. The deposition of the said PW is also of great importance that the alleged audit note neither contained any writing on behalf of Revenue Officer, Chiniot, nor it bore stamp of the officer, who issued the same. The said deposition could not be rebutted by the respondent/defendant, whereas, Sarfraz Ahmad, Moharrar P.S. City Chiniot, was produced as PW.7, who deposed that F.I.R. No. 547/2007 was got registered by the Assistant Manager, Customer Services, FESCO/WAPDA, Chiniot and the case was investigated.
9. The respondent/defendant has produced Nadim Sajid, Revenue Officer, FESCO, Chiniot, as DW.2, who admitted during the cross-examination that F.I.R. Was discharged after investigation. He further deposed that the case was referred to FIA as per direction by the police. The deposition of the above-said DW2 that the culprits of F.I.R. Have been discharged by the Investigating Agency is of great significance.
10. There is no document on file which could prove that the petitioners/FESCO had moved any complaint against respondent/consumer before the Federal Investigating Agency. The evidence available on file makes it clear that the petitioners/FESCO had neither given any notice to the plaintiff/consumer before the issuance of disputed bill nor the consumer was joined in any audit proceedings. Furthermore, the contention of the learned counsel for the petitioners/FESCO that High Powered Committee was constituted, who after investigation made a report and in the light of the same, the disputed bill was issued, has no substance as the petitioners/FESCO failed to produce any of the Inquiry Member before the learned Trial Court to prove the said inquiry report.
The best evidence was available to the petitioners/FESCO which has been with-held by them for the reasons best known to them. Inference under Article 129(g) of Qanoon-e-Shahadat Order, 1984, has to be drawn against the petitioners/FESCO for with-holding the best evidence. Reliance can be placed upon the cases reported as (2004 CLC 1), (1996 SCM R 137), (2007 M LD 1554) and (2009 YLR 1113).
11. The burden to prove the said investigation report of the basis of which the disputed bill was issued to the respondent/plaintiff was on the shoulders of the petitioners/FESCO, but nothing is available on file, whereby, it could be assessed that the petitioners/FESCO had discharged the onus by producing the same. The petitioners/FESCO had set up claim on the basis of said inquiry report conducted by High Powered Committee and also on the audit report allegedly issued by the auditor of the petitioners/FESCO. The evidence available on record has proved the fact that before initiating proceedings against respondent/consumer on the basis of said audit report, neither any show-cause notice was issued to the plaintiff/consumer nor he was joined in the said proceedings to justify the same. The audit objection is neither binding on the plaintiff/consumer nor he can be held responsible due to the fault of the department as out in the audit report. Even the petitioners/FESCO failed to produce any relevant person before the learned Trial Court through which it could be gathered that the said audit report was based on any material. The said material has also not been produced which could be made basis of the said report. It is also viewed from the report that in order to save the skin of its own employee, the amount was added to the account of plaintiff/consumer without any prior notice and without hearing him. Both the Courts below rightly observed that no amount could be recovered from the consumer on the basis of audit report as the audit affair is between the WAPDA and its audit department and no audit report could in any manner make the consumer liable for any amount and the same could not bring about any agreement between the WAPDA and consumer making consumer liable on the basis of audit report. Reliance can be placed upon the case reported as "Water and Power Development Authority, etc. v. Umaid Khan" (1988 CLC 501) and "WAPDA through Chairman and 3 others v. Fazal Karim and 5 others" (2008 YLR 308). The culprits of the F.I.R./officials of the petitioners/FESCO have already been discharged by the Investigating Agency.
12. Both the learned Courts below after appreciating the evidence available on file have rightly concluded that the disputed bill was issued to the respondent/plaintiff without providing him an opportunity to be heard and he was not liable to pay the said amount as the audit report as well as High Powered Committee report could not be proved. The findings of both the learned Courts below on issue No. 1 are affirmed. The findings of other issues need not to be discussed as those have already been decided in negative against the petitioners/FESCO.
13. The learned counsel for the petitioners/FESCO has not been able to point out any misreading and non-reading of evidence available of file or material irregularity and illegality in the judgments and decrees passed by both the learned Courts below which having been passed keeping in view the material on record as well as the relevant law, cannot be interfered with in the revisional jurisdiction by this Court the scope whereof is narrower and restricted only to correct errors of law committed by the subordinates Courts. Safe reliance can be placed on the judgments passed by august Supreme Court of Pakistan reported as "Aurangzeb through L.Rs. And others v. Muhammad Jaffar and another" (2007 SCM R 236) and "Bashir Ahmed v. Ghulam RasooP' (2011 SCM R 762)'.
14. For the foregoing discussion, the instant revision petition having no merit and substance is hereby dismissed in limine.
Civil revision petition dismissed.
2015 P.L.R. 595 [D.I. Khan] Present: IKRAMULLAH KHAN, J.
Gulab Shah Versus Ghulam Yaseen and others Civil Revision No. 13-D of 2012, decided on 5th November, 2014.
CONCLUSION
(1) Mechanically remand of the case without reasonable grounds is not permissible.
(a) Limitation Act (IX of 1908)--- ---Art. 152---Appeal---Limitation---Limitation in regard to filing appeal, beyond the prescribed period of limitation provided under said provision is not procedural one---Once a person acquired vested right due to non-filing of an appeal by the adverse party within the prescribed period provided by law, without reasonable explanation, a person, who had accrued vested right could not be deprived of his rights on whims and wishes of the other body.
(Para 10)
REMAND OF CASE --- (Non-framing of issues) (b) Civil Procedure Code (V of 1908)--- ---S. 115, 0. XIV, R. 1, 0. XLI, R. 24---Transfer of Property Act, 1882, S. 41---Limitation Act, 1908, Art. 152, S. 5---Specific Relief Act, 1877, S. 42---Suit for declaration-cumperpetual injunction and as an alternate relief, for possession---Pleadings and evidence---Trial Court partially decreed suit--- Time-barred appeal---Case was remanded by Appellate Court below to Trial Court with direction to frame proper issues---Validity---No doubt framing of the required issues is compulsory and mandate of law, but in case, even if same issues, which do not reflect the merits of the case were not framed by the Trial Court and both parties led their evidence, without any protest or objection over already framed issues or non-framing of some of the issues, it would not be a valid ground for remand of the case---In such state of affairs when grievance of newly added respondents were redressed by Trial Court and petitioners had not filed either appeal or cross-objection against impugned judgment of Trial Court, the remand of case by Appellate Court below was not legally justified---What were the issues which ought to be framed and decided by Trial Court, had not been explained by Appellate Court below---Mechanical remand of case without reasonable grounds was not permissible---Besides, respondents were bound to explain each and every day for condonation of delay but they had also failed to fulfill their legal responsibility---Such delay in filing appeal could not be ignored---Impugned appellate judgment was set aside---Civil revision /case remanded.
(Paras 7, 8, 9, 11, 12)
Ref. 2003 SCM R 1334, 1998 SCM R 1863, 1989 MLD 1313 La h.
[Appellate Court below could not remand the case merely on basis of non-framing of issues. High Court allowed civil revision].
For the Petitioners: Muhammad Jehangir Awan, Advocate.
For the Respondents: Noor Gul Khan Marwat, Advocate. Date of hearing: 5th November, 2014.
' IKRAMULLAH KHAN, J. --- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 17.10.2011 rendered by the learned Additional District Judge-VI, D.I. Khan, whereby the appeal filed by respondents No. 1 to 15 was accepted, impugned judgment and decree dated 23.12.2010 of learned Civil Judge-VII, D.I. Khan was set aside and the suit was remanded to the Trial Court with the directions to frame proper issues in accordance with pleadings of parties.
2. The brief facts giving rise to the instant revision petition are that respondents No. 1 to 15 filed a suit against the petitioners and proforma respondents for declarationcum-perpetual injunction and as an alternate relief, for possession of landed property fully detailed in the heading of the plaint.
3. The suit was contested by petitioners and proforma respondents through submitting their written statement. The learned Trial Court framed issues arising out of the pleadings of parties. The parties produced their respective evidence as they wished to adduce. After hearing, the arguments of learned counsel for the parties, the learned Civil Judge-VII, D.I. Khan partially decreed the suit of respondents No. 1 to 15, vide judgment and decree dated 23.12.2010.
4. Dissatisfied with the judgment and decree dated 23.12.2010, respondents No. 1 to 15 preferred an appeal. The learned Additional District Judge-VI, D.I. Khan, vide impugned judgment and decree dated 17.10.2011, accepted the appeal, set aside the impugned judgment and decree dated 23.12.2010 and remanded the case to the Trial Court with the directions to frame proper issues in accordance with pleadings of parties.
5. The learned counsel for the petitioners contended that the impugned judgment is against law and facts on record; that a time-barred appeal filed by respondents had accepted without any plausible reason; that the impugned judgment is result of misreading and non-reading of evidence, which has adversely affected the petitioners, while patent irregularity is floating on the surface of record which has caused gross miscarriage of justice.
6. On the other hand, the learned counsel for the respondents argued that essential issues were not framed by the Trial Court which had affected the merit of the case, therefore, the impugned judgment is based on proper appreciation of law and appraisal of evidence. I have heard both the learned counsel for parties and carefully gone through the record.
7. The learned Appellate Court had set aside the impugned judgment of the learned Civil Judge on the sole ground that the learned Civil Judge had not framed the required issues, out of the pleadings of the parties. No doubt framing of the required issues in a suit is compulsory and mandate of law, but in case, even if same issues, which do not affect the merit of the case, were not framed by the Trial Court and both parties led their evidence, without any protest or objection over already framed issues or non-framing of some of the issues, it would be not a valid ground for remand of the case. The provision contained in Rule 1 of Order XIV, C.P.C. Contemplates that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other, while material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. In case in hand, the material proposition which was to be framed was "whether the inheritance mutation No. 895, dated 12.01.1959 and mutation No. 1071, dated 21.9.1967 were void, fictitious and its effect."
Likewise, no issue in regard to the newly impleaded defendants, who had alleged to be bona fide vendees, was framed, but thereafter at the conclusion of trial, the learned Trial Court had secured and saved their rights of ownership in view of the provision contained in Section 41 of the Transfer of Property Act. In such state of affairs when the grievance of the newly impleaded defendants were redressed by the learned Trial Court and the petitioners had not filed either appeal or cross- objection against the impugned judgment of the learned Civil Judge, D.I. Khan, the remand of case by the learned Appellate Court below through the impugned judgment, is not legally justified.
9. It is established principle of law in view of Rule 24 of Order 41, C.P.C., where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after re-settling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeded. The record is bereft of the fact that what were the issues, which ought to be framed and decided by the Trial Court, had not explained by the Appellate Court, which constrained him to remand the case. The purpose of provisions of C.P.C. Is meant to advance cause of justice and not to hinder justice. Mechanical remand of the case without reasonable grounds is not permissible in view of the case Muhammad Bakhsh v. Mst. Lqbal Begum and 6 others (1989 M LD 313 Lahore).
10. Insofar the question of limitation in regard to filing appeal, beyond the prescribed period of limitation provided thereunder the provisions contained in Article 152 of the Limitation Act, is not procedural one. Once a person acquired vested right due to non-filing of an appeal by the adverse party within the prescribed period provided by law, without reasonable explanation, a person, who had accrued vested right could not be deprived of his rights on whims and wishes of the other party. In case of Aftab Shahban Mirani v. President of Pakistan and others (1998 SCM R 1863), the apex Court had held as:--- "The petitioner has not filed any application for condonation of the above delay though it is a well- settled proposition of law that delay of each day is to be explained in filing of a petition for leave to appeal beyond the limitation period."
' The same view is re-agitated by the apex Court in case Muhammad Zubair v. Haji Muhammad Tufail and another (2003 SCM R 1334).
11. The respondents were bound to explain each and every day by filing an application for condonation of delay under Section 5 of the Limitation Act, but they had also failed to fulfill their legal responsibility of filing the same for condonation of delay in filing appeal beyond the prescribed period provided under Section 152 of the Limitation Act. Such delay in filing of appeal could not be condoned.
12. For the reasons given hereinabove, this revision petition is partly allowed, the impugned judgment of the learned Appellate Court below is set aside and the case is remanded to the learned Appellate Court below to decide the appeal on available evidence in accordance with law on merits.