ABDUL LAT1F KHAN, J.-- This revision petition has been preferred against the judgment and decree dated 28.06.2008, passed by learned Additional District Judge-I, Abbottabad, whereby First Regular Appeal of the appellants/petitioners was dismissed and the decree of trial Court dated 18.9.2004, was maintained.
' Arguments heard and record perused.
2. A perusal of record reveals that respondents/plaintiffs filed a suit for declaration to the effect that they are not liable to pay the amount of Rs,408,845/- as fixed charges/minimum charges recovered by the defendants Nos.1 and 2, for the period 10.86 to 1/88 (sixteen months) and 1/90 to 9/91 (21 months) and the amount so recovered is illegal, against the law and is liable to be refunded to the plaintiffs. Declaration for fuel adjustment charges and surcharge being charged from the plaintiff by the defendants is illegal and against the basic contract between the parties.
Recovery of the referred amount was also sought along with recovery of entire amount of fuel surcharge from defendants Nos.1 to 3 as charge upto date until finalization of the suit and finally recovery along with interest/ markup mentioned in Para C of the title and Rs,5,00,000/- as damages along with perpetual injunction was sought. The defendants contested the suit by filing written statement. After evidence of the parties produced in support of their respective stance, the learned trial Court decreed the suit to the extent of relief 'A' and 'C' i.e,, declaration and recovery of amount of Rs,4,08,845/- while the rest of the suit of the plaintiff was dismissed. Deputy Manager, Operations PESCO, City Division Abbottabad, along with Assistant Manager, Sub Division Havelian and Assistant Manager, PESCO, Abbottabad preferred an appeal which was dismissed on 28.6.2008 both on merit as well as on maintainability of appeal on the ground that Chairman WAPDA has not challenged the judgment and decree impugned before Court of Appeal who was a necessary party and on this score to the appeal was defective in nature, hence the instant petition.
3. The claim of the plaintiff Private Ltd. Company who is consumer of electricity supplied by the defendant which was disconnected during the disputed period as the unit remained close. The defendant charged the petitioner for sum of Rs,2,54,231/- as fixed charges/minimum charges for 21 months which was paid under protest. After reconnection of the supply of electricity to the factory owned by plaintiff there was no outstanding arrear against the plaintiff, however vide letter dated 17.11.1992 and audit dated 14.9.1992 a demand of Rs,1,54,614/- as minimum charges with effect from January, 1990 to June 1990 was also made which is illegal. Both these amounts come out Rs,4,08,845/- recovered as minimum/ fixed charge from the plaintiff which is violative of circular dated 6.'4.1989 and liable to be refunded along with 2% interest above State Bank rate from the date of recovery. PW.3 deposed on behalf of plaintiff in support of his stance taken in the plaint, who has also produced Memorandum in Article of Association Ex.PW.3/2 and reiterated the stance taken in the plaint. The relevant record including audit note was produced by PW.1, who admitted in cross examination that as per audit para the demand was made against plaintiff who has deposited all the amounts. SDO, WAPDA, Havelian was examined as PW.2, who produced record as Ex.PW.2/1 to Ex.PW.2/6 however was unable to produce record, regarding connection, disconnection notice and reconnection order of the premises from 1991. The defendants produced DW.1 Assistant Revenue Officer, who produced the record regarding disconnection and reconnection which shows that no fixed/ minimum charges or charge in case of connection or reconnection for temporary, permanent disconnection of supply of electricity of particular industry nor could be claimed from the plaintiff. The evidence produced by the plaintiff was confidence inspiring and the demand made by the defendants from the plaintiff was without legal backing and as such the Courts below have rightly decreed the suit of the plaintiff/respondent.
4. Learned counsel for petitioner referred to the observations made by the trial Court in its finding on page 7 of the judgment regarding entitlement of plaintiff for the recovery of amount in original without any interest as per relief 'C' however the decree was granted to the extent of relief 'A and 'C' wherein compound interest at the rate of 2% above the State Bank rate or markup at the rate declared by the State Bank at the time of finalization of suit has been sought and as such the findings arrived at and the relief granted are contrary and to this extent necessary modification is required. A look of relief 'C' of the plaint shows that compound interest at the rate of 2% above Bank rate has been sought by the plaintiff which has not been allowed by the trial Court as finding arrived at by trial Court on issue Nos.1 and 11, relief at pages 7 and 8, shows that the decree for the said amount in original without any interest has been granted as per relief 'C' however in relief 'C' in toto has been allowed which is contrary to the conclusion arrived at by the trial Court in its discussion on the referred issues and as such to this extent modification is made in the judgment of trial Court whereby relief 'C' is granted without any interest instead of compound interest as per prayer of the plaintiff. Needless to mention that these findings have not been challenged by respondents and have attained finality. Moreover the learned Court of appeal has not given any findings to this effect and have upheld the judgment of trial Court has been merged in the judgment of appellate Court therefore judgment of Court of appeal is modified.
5. Quite apart from this, petition was filed by petitioner on 29.11.2008 which was listed before this Court on 22.12.2008 and was admitted to regular hearing however subject to objection as to period of limitation. On 12.6.2009 a preliminary objection on the ground of maintainability of this petition was raised on the ground that the petition has not been filed by the PESCO, which was Body Corporate/ Company. Learned counsel for petitioner sought adjournment in order to assist the Court on the preliminary objection. On 27.6.2011, learned counsel for petitioner stated that he has filed a CM for amendment of original revision petition which has not been filed with the instant petition and case was adjourned. On 1.8.2012 through CM, petitioner sought the amendment of instant petition which was allowed as the learned counsel for respondent No,1 had no objection subject to all legal objections and petitioner was directed to do the needful within 7 days. Amended petition was filed on 10.8.2012 wherein Chairman WAPDA arrayed as proforma respondent. On 23.2.2015 learned counsel for petitioner was directed to file articles of Memorandum of Association of PESCO as WAPDA has succeeded by PESCO and maintainability of the instant petition filed by the local authority in view of the changed administrative structure, especially in the light of relevant provision of law, authorizing a designatory authority to file appeal or revision on behalf of successive authority. The case was listed for 6.4.2015 and on the next date, it was observed that the order dated 23.2.2015 was not complied with by the XEN concerned and was again directed to comply with the order of the Court and case was listed to 10.4.2015. It has been informed that till date the petitioner failed to comply with the orders passed by this Court on 23.2.2015, wherein directions were made to them for filing Memorandum of Association of PESCO. Learned counsel for petitioner was handicapped to meet the query as there exists any article in Memorandum of Association of PESCO to file instant petition through which the petitioner has been authorized to file the instant petition and due to lack of which the instant petition is not maintainable and on this score too, it is liable to be dismissed. In case of "Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore reported in PLD 1971 SC 550, it was held by the august Supreme Court of Pakistan that the proceedings on behalf of a company even a person (Incharge of Company) is not competent unless authorized by resolution passed by the Board of Directors in a meeting of Directors duly convened. Non-placing of any resolution or authorization on record by the petitioner, necessary for initiation or defend the proceeding by or against the company/ Corporate Body did not deserve any consideration of the petition on legal plane and as such the instant petition being filed by unauthorized persons is not maintainable and on this score too, it is liable to be dismissed.
' For the aforesaid reasons, with the above observations, the instant petition is disposed of accordingly.