' MRS. SYEDA TAHIRA SAFDAR, 1.---The petitioner Sui Southern Gas Company Limited (the Company) assailed the judgment dated 26th April 2010 of Senior Civil Judge-1 Quetta, whereby the suit filed by the respondent Najeebullah was decreed in the terms as prayed, and the judgment dated 15th December 2010 of Additional District Judge-I, Quetta, whereby his appeal against the judgment of the trial court was declined.
2. The respondent Najeebullah, (the plaintiff), filed a suit with the facts that he in occupation of a quarter situated at Railway Colony, Brewery Road, Quetta, having the gas facility for the domestic purposes, but on 28th September 2007 a surveillance team of the Sui Southern Gas Company (the Company) without any justification disconnected the supply of the gas, and issued him a notice for non-recording the gas charges of the even date. It was case of the plaintiff (respondent) that the disconnection was with mala fides, consequent thereto an FIR against him with the allegations that the domestic gas connection was used for commercial purposes was filed. He faced the trial, but stands acquitted vide judgment dated 23rd July 2009 of Additional Sessions Judge-II, Quetta.
Meanwhile, the Company required him to make payment of Rs,110,105/- (Rupees one hundred and ten thousand one hundred five only) as claim of commercial use. The claim was denied in reply submitted through an advocate. It was further his case that on his acquittal he filed an application before the Company for restoration of the and re-installation of the domestic gas meter, but with no response, hence the suit. The suit was with the prayers: "(a) Declaring that defendants had illegally disconnected the domestic gas connection bearing customer No,0917691000-9, meter No,21254137 installed at Arbab Water Supply, Brewery Road, Quetta;
(b) Declaring that defendants had illegally issued notice/bill of Rs,110,105/- to the plaintiff;
(c) by means of mandatory injunction defendants be directed for restoration of domestic gas connection and re-installation of gas meter;
(d) Any other relief which this Hon'ble Court may deem proper in the circumstances of the case may also be awarded; "
3. The defendants (present petitioners) contested the claim in the suit while contending that under the garb of domestic meter, the connection was used for commercial purposes, as three fake, numbers were implanted by the plaintiff (respondent) in the premises. Further, the plaintiff (respondent) being a consumer was bound to comply with the terms and conditions of the contract, executed between him and the Company, but he (plaintiff) failed to abide by the terms.
Further, the violation was traced out by the surveillance team, and on basis thereof an FIR was lodged against the plaintiff (respondent), who on trial was convicted for the offence punishable under Section 379 Pakistan Penal Code (PPC) by the Judicial Magistrate-V, Quetta. It was contended that the plaintiff (respondent) was found guilty of theft and misuse of domestic connection as commercial purposes. They prayed for dismissal of the suit.
4. The trial court framed the issues arising out of the pleadings of the parties, called for the evidence and vides judgment dated 26th April, 2010 arrived to the conclusion that the plaintiff (respondent) succeeded to establish his case. The suit was decreed in the terms: "Since the imperative issues' Nos. 2 and .3 have been resolved in favour of plaintiff, further the plaintiff succeeded to establish his suit. Therefore, the suit of plaintiff is hereby decreed by virtue of which it is declared that the defendants had illegally disconnected the domestic gas connection being customer No,0917691000-9, Meter No,21254137 installed at Arbab Water ' Supply, Brewery Road, Quetta further the defendants had illegally issued notice/bill of Rs,110,105/- to the plaintiff. Therefore, the defendants are directed to restore the domestic gas connection and re-installation of gas meter, however, the plaintiff is bound to pay the actual amount as per rates of domestic connection of the units, he consumed."
5. The appeal against the order was declined vide judgment dated 15th December, 2010 by the Additional Sessions Judge-I, Quetta, but the grievance subsisted, hence the instant petition.
6. The petition was filed on the grounds of misappreciation of facts and law. The facts of committing theft by the, respondent and violation of the terms and conditions of the contract between the parties on part of the respondent were ignored. Further, the act of placing complete reliance on findings recorded in a criminal case, and treating it (findings) as final having binding effect on a court dealing with a case civil in nature, was an error on part of the courts, trial and appellate. It was ignored that the decision must be on basis of the evidence produced before the court in respective case.
7. Learned counsel for the petitioner, only narrated the facts as noted down in the petition and added nothing except that civil and criminal liabilities are independent of each other. While in reply the learned counsel for the respondent only stated that as the respondent was absolved from his criminal liability, thus he was not bound to pay the amount claimed by the Company, further the order of acquittal made him entitled for restoration of the domestic gas connection and installation of the gas meter.
8. The matter in hand pertains to the use of Natural Gas, while the plaintiff, (respondent) approached the court in capacity of retail consumer for natural gas, for redress of his grievance.
The status of the plaintiff (respondent) as of consumer of the Company was not denied, while filing of a criminal case against him for the offence punishable under section 379, P.P.C. Was also a fact.
The papers available in the case file described that the respondent was booked in the criminal case, which remained pending before the court of Judicial Magistrate-V, Quetta, and he was convicted for the offence along with co-accused Ghulam Mustafa and Illahi Bakhsh vide order dated 31st August, 2008. The respondent appealed against his conviction, and succeeded to obtain an order of acquittal vide judgment dated 17th March 2009 of Additional Sessions Judge-II, Quetta.
Astonishingly the petitioner showed ignorance of this order. The plaintiff (respondent) in fact was aggrieved of the notice dated 3rd March 2008 issued to him by the Company for payment of an amount of Rs,110,105/-, determined to be the value of the gas consumed on account of its commercial use for the period 29th September 2006 to 8th September 2007. The suit was filed in August 2009 with .No explanation of delay. It was his case that despite his acquittal the Company had not restored the connection, nor installed the gas meter, instead thereof claimed the amount, to penalize him for the offence not committed by him.
9. The facts as apparent from the record that the Company (petitioners) sued the respondent initially for a criminal liability, and on finalization of the matter the respondent approached the civil court for redressal of his grievance. Thus the facts of the criminal case and the acquittal recorded in favour of the respondent (plaintiff) were in knowledge of the courts, trial and appellate, and while dealing with the case complete reliance was made by them on the findings recorded in the criminal case. In addition undue weight was given to the fact that the prosecution was not able to establish its case, which resulted in acquittal of the plaintiff (respondent). Both the courts, trial and appellate, were under some misconception, therefore, erred. The standard of appreciation of evidence in cases, criminal and civil, are quite distinct. In criminal cases an accused is always presumed to be innocent unless his guilt is proved beyond any shadow of doubt. Contrary to it in cases civil in nature the court has to reach at the basis of the matter, and during course the minor contradictions or omissions are to be ignored. Further, it is an established principle that evidence recorded in one case cannot be read in another case unless same is produced and exhibited in accordance with the rules of evidence. In addition a person when approaches a court to establish his civil liability, has to establish his case independently on basis of the evidence produced during course of trial of respective case. Above all each case has to be decided on its own merit. This basic principle was ignored by the courts, trial and appellate, while dealing with the case in hand.
10. Before going into further merit of the case it is to be kept in sight that the matter in hand pertained to issuance of claim for commercial use of gas, and the respondent (plaintiff) was required to pay an amount of Rs,110,105/- as value of the gas consumed within the described period. The dispute was between a consumer and a licensee of natural gas, thus the, matter was to be governed by the Oil and Gas B Regulatory Authority Ordinance, 2002 (Ordinance XVII of 2002). It is noted with concern that the learned counsel for the petitioner though before this court, to challenge the decree in favour of the plaintiff (respondent), but was unable to quote the Law, Rules and Regulations, which govern the matter. Ordinance XVII of 2002 comprehensive enough to regulate the matters connected with the Petroleum Industry and matters related thereto, but sections 41 and 42 of the Ordinance XVII of 2002 are in addition, which confer powers of making Rules and Regulations for carrying out the purpose of the Ordinance. Sub- section (2) clause (e) of Section 42 includes making of Regulations to provide procedure for resolving dispute amongst the licensees, consumers and licensees, and users of open access facilities. Thus, the Authority on strength of the referred power framed the Complaint Resolution Procedure (for Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) and refined oil products)
Regulations 2003 (Regulations 2003). It contained the procedure for filing of a complaint and the procedure to be adopted by the Authority for redressal of the grievances on receiving of the complaint. Para-2 of the Regulations defined the Designated Officer Committee, i,e, the Authority, while Para-3 enumerate nature of the complaints submitted to the Authority by any person to be dealt under the Regulations, reproduction would be beneficial: "3. Nature of complaints.---Any person may submit an application with the Registrar for--;
(a) any act or thing done or omitted to be done by a licensee or dealer in violation or alleged violation of the Ordinance, rules, regulations, order of the Authority or terms and conditions of the license; ' non-compliance by the licensee or dealer with the service standards in the area including but not limited to;
(i) billing;
(ii) connection and disconnection of service;
(iii) metering;
(iv) undue delay in providing service;
(v) safety practices; or
(vi) quantity and quality of natural gas, LPG or CNG being supplied; or
(c) discriminatory practices of the licensee or dealer.
11. The matter in issue between the parties is covered by Para-3 of the Regulations 2003; therefore, the procedure provided in the Regulations was to be set in motion by the respondent (plaintiff) as his status was of consumer, defined by Section 2 (1) (iv) of the Ordinance XVII of 2002.
12. The Regulations 2003 contained complete procedure to be adopted not only by a complainant for submitting a complaint, but also by the Authority on receiving thereof to redress the grievances of the complainant against a licensee or a dealer. Paras-4 to 8 of the Regulations 2003 are relevant. Para-9 is with the right of appeal pursuant to Section 12 of the Ordinance. XVII 2002. While a power to recall a complainant case also lies with the Authority as contained in Para-10 of the Regulations. In addition thereto Section-11 of the Ordinance XVII of 2002 provides a right of filing a written complaint to the Authority against a licensee for contravention of any provision of the Ordinance XVII of 2002 or of any Rule or Regulation by an interested person and a right of appeal available under section 12 of the Ordinance XVII of 2002. It is to remind that the right of filing of a complaint only becomes available when a person aggrieved has already sought redress from the licensee pursuant to Complaint Resolution System. Para 5 of the Regulations is clear enough to the effect.
13. In view of the quoted provisions an alternative remedy was available to the respondent (plaintiff) in his status as of consumer of natural gas against the Company (present petitioners), but he avoided. In addition it was also not denied that the plaintiff (respondent) was a consumer of natural gas and was in contract with the Company (present petitioners) for supply of gas for domestic use. The meter was also installed on the premises, which was admittedly removed and the connection was disconnected on the allegation of tampering. The execution of contract between the parties for the purpose was admitted by the parties, but none of them (parties) placed on the record the original or copy of the contract. Only a pro forma of the contract was produced before this court for perusal. The perusal thereof reveals that clause No, 21 is with the title dispute resolution, and reads as under: "21. Dispute Resolution.--In the event of any difference of dispute arising out of or in connection with the contract between the company and the consumer which cannot be amicably resolved, it shall be referred on the date of commissioning of gas supply shall apply.
' The clause failed to convey any meaning. It seems that there was some misprinting which was never corrected. Thus the matter is to be dealt with the procedure provided in the Regulations 2003 for the purpose.
14. The outcome of the discussion is that the Statute provides a proper procedure for resolution of dispute between a consumer and a licensee and the Regulation framed thereunder are in addition thereto. Thus the provisions of law and Regulations were to be adhered to by the parties. The respondent (plaintiff) required to set into motion the relevant provisions and to avail the provided remedy, but he directly approached court of civil jurisdiction for declaration to the effect which was an error. The matter pertains to natural gas, thus to be governed by the Ordinance XVII of 2002, raid by the Rules and Regulations framed there under. The alternate remedy provided by the law and the Regulations was to be availed at the first instance by the respondent (plaintiff), while a civil suit would be the last resort, but it was other way round. In presence of the Regulations 2003, a civil suit was not maintainable without availing of the remedy provided therein for redressed of the grievances of a consumer against a licensee.
15. In view of the above discussion the petition is allowed. The judgment dated 25th April 2010 of Senior Civil Judge-I Quetta and judgment dated 15th December 2010 of Additional. District Judge-I, Quetta are hereby set aside. Resultantly the suit filed by the plaintiff Najeebullah stands dismissed being not maintainable. There shall be no order as to costs.
' Decree sheet be prepared.