ARSHAD MAHMOODTABASSUM, J.---Through the instant petition under Section 115, C.P.C., the petitioners have called in question judgment and decree dated 15.03.2006, passed by a learned Additional District Judge, Attock, whereby he dismissed appeal, preferred by the petitioners against judgment and decree dated 04.07.2005, passed by a learned Civil Judge, Attock, decreeing the suit of the respondent/plaintiff for declaration and permanent injunction.
2. Briefly, the facts of the case arethat Messrs China Petroleum Engineering Construction Corporation, G.T. Road Hatian, Tehsil and District, Attock, respondent herein, on 02.09.2000, instituted a suit for declaration to the effect that the detection bill for the month of July, 2000 for an amount of Rs.1,41,770/- had wrongly been issued and the same was based on mala fide, hence, ineffective upon its right and liable to be set aside. By way of consequential relief, decree for permanent injunction was prayed for directing the petitioners/defendants not to add the amount of detection bill in the future bills as arrears. The said suit was contested by the petitioners/defendants through filing their written statement, wherein they raised several preliminary objections, including that the civil court had no jurisdiction in view of the provisions of Section 54-C of the Electricity Act, 1910. However, it was conceded that the respondent/plaintiff was paying bills as per tariff A-2 and only dispute was that the electricity meter had been tampered.
3. On the basis of divergent pleadings of the parties, the learned trial court framed the following issues:- "ISSUES
(1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the plaintiff is stopped by his words and conduct to file the suit? OPD
(4) Whether this court lacks jurisdiction to try this suit in view of Section 54 of Electricity Act? OPD
(5) Whether the plaintiff is entitled to the decree as prayed for? OPP (6). Relief."
4. Both the parties produced their respective evidence. Ultimately, the learned trial court, after hearing the learned counsel for the parties, decreed the suit vide judgment and decree dated 04.07.2005 as prayed for. Being dissatisfied with theimpugned judgment, the petitioners preferred an appeal, which, as pointed out above, failed as the same was dismissed, hence, this petition.
5. Nobody has turned up on behalf of the respondent, therefore, the respondent has been proceeded against ex-parte.
6. I have heard ex-parte arguments, addressed by the learned counsel for the petitioner and have myself perused the documents annexed with this petition.
7. Learned counsel for the petitioners, at the very outset, has argued that the suit filed by the respondent/plaintiff was not maintainable in view of provisions of Section 54-C of the Electricity Act, 1910 (the Act), as the dispute was refer able to the Electric Inspector and the respondent/ plaintiff, if felt aggrieved, should have approached the said Electric Inspector, as provided under Section 26(6) of the Act and that the jurisdicfion of the learned Civil Court was barred in view of the provision of Section 54-C of the Act.
8. The petitioner, being defendant in the suit had raised preliminary objections to the effect that in view of Section 54-C of the Act, the learned Civil Court lacks jurisdiction in the matter. Keeping in view the said preliminary objection, the learned trial court framed the following issue No.4.
(4) "Whether this court lacks jurisdiction to try this suit in view of Section 54 of Electricity Act? OPD" ' and while rendering its decision, the learned trial court has observed as under : "As I have already held that the provisions of sections 24 and 26-A of the Electricity Act are not observed by the defendants WAPDA the jurisdiction of Civil Court cannot be ousted under Section 54-C of the Electricity Act. The issue is decided against the defendants."
9. In order to properly understand the point in issue, it would be beneficial to reproduce the provisions of Section 54-C, which reads as under:-- "54C-(1) Where a licensee gives a notice referred to in subsection (1) of section 24 or discontinuous supply of energy to a premises under the provisions of this Act no court shall make an order prohibiting the licensee from discontinuing supply of energy to the premises, and any such order made before the commencement ofthe Electric it: (Amendment) Ordinance, 1979, shall cease to have effect: ' Provided that nothing contained herein shall apply to a case in which the plaintiff, applicant or appellant, within a period of thirty days of the aforesaid date of at the time of filing the suit, application or appeal, as the case may be, deposits with the court the amount assessed against him by the licensee and all further charges of the licensee as and when they become due; and in the event of his failing to do so, any order prohibiting the licensee from discontinuing the supply of energy to the premises or requiring him to restore the supply of energy to the premises or requiring him to restore the supply of energy to the premises, if already made, shall cease to have effect.
(2) Where an amount has been deposited under subsection (1), the court shall direct it to be deposited in a scheduled bank in the name of the licensee on an undertaking being furnished by the licensee to the effect that in case the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable return as the court may determine."
It seems from the above reproduced text of Section 54-C that the same applies to a situation, where a notice under Subsection (1) of Section 54-C of the Act, is issued by the licencee to a consumer or the supply of energy is discontinued under the provisions of the Act, but here in this case, the dispute is somewhat different, in that the licencee had issued a detection bill to the consumer/respondent/plaintiff on account of theft of electricity by way of tampering with the meter, thus, the said notice was issued pursuant to the provisions of Section 26-A of the Act and mechanism for resolution of such a dispute has been given in Subsection (6) of Section 26 of the Act, which reads as under:--
(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 not correct the matter shall be decided, upon the application ofeither party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties and opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of an 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, indicator or 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 of the consumer declines to accept the _decision or the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final: Provided that, before either a licensee or a consumer applies tothe Electric Inspector under thissubsection, he shall give to the other party not less than seven days' notice of this intention to doSo.
' Here in this case, the dispute was as to whether the meter installed at the premises of the respondent/plaintiff was or was not correct and thus, the meter was liable to be referred to Electric Inspector. So has been held by the Apex Court in the case titled "WAPDA and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others" (PLD 2012 Supreme Court 371), the relevant portion whereof reads as under:-- ' More recently this Court in the "Colony Textile Mills Ltd. Multan v. Chief Executive, MEPCO (2004 SCM R 1679)" (ibid) while interpreting section 26(6) and section 26-A of the Electricity Act, laid down the circumstances in which the Electric Inspector could still exercise its authority even when there is allegation of theft of electricity. In the context, the following passage from the judgment is instructive:-- "The difference of above statutory provisions is obvious as the jurisdiction of the Electric Inspector is confined to the disputes relating to the matters falling under section 26(6) of the Electricity Act, 1910 and the matter relating the charges on account of dishonest obstruction of energy would not be referable to the Electric Inspector. If the matter relates to the correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity is referable to the Electric Inspector and in case for dishonest obstruction and consumption of energy, the licensee under section 26-A of the Electricity Act, 1910, may charge the consumer on the basis of considerations mentioned therein. The distinction is that in case of defect in the metering equipment or any fault caused by the consumer with the intention to prevent the meter from registering the consumption of energy, the assessm ent made by the licensee of the charges through detection bill can be subject to scrutiny by way of reference made to Electric Inspector by the consumer but if the metering equipment was completely by passed and through a device energy was being supplied by dishonest obstruction of electricity and the question relating to the correctness of metering equipment or the measuring apparatus was not involved, the charge made under section 26-A is not a dispute referable to the Electric Inspector in terms of section 26(6) or any other provision of the Electricity Act, 1910."
8. The above principle laid down in "Colony Textile Mills Ltd. Multan" was cited with approval in the subsequent judgment of this Court in "Multan Electric Power Company Ltd." (ibid). It follows from the above Case-law that where the allegation against the consumer of electrical power is of dishonest consumption of energy through manipulation of, or tampering with, the metering equipment or other similar apparatus, the Electric Inspector would still have the authority to entertain reference under section 26(6). In case the theft alleged is by means other than the tampering or manipulation of the metering equipment etc, the matter would fall exclusively under section 26-A of the Act, outside the scope of powers of the Electric Inspector. Since the Electric Inspector possesses special expertise in examining the working of the metering equipment and other related apparatus, it makes sense that any issue regarding their working, functioning or correctness, whether or not deliberately caused, be examined by him. It may be added that section 26-A is an enabling provision empowering the licensee to charge the consumer fordishonest extraction orconsumption of electricity. It does not provide any procedure for resolving any dispute between consumer and the licensee on a charge of theft. It should, therefore, be read in conjunction with the other relevant provisions, including section 26(6) of the Act."
10. Keeping in view the above dictum laid down by the Apex Court and circumstances of the instant case, it is quite clear that the learned trial court as also the learned first appellate court have failed to consider the objection raised by the petitioners with regard to the maintainability of the suit, thus, the suit was not maintainable and was liable to be dismissed on that score, but the learned trial court illegally assumed the jurisdiction in the matter and passed the impugned judgment and decree without having any lawful authority. Same illegality was perpetuated by the learned first appellate court. The impugned judgment and decree, therefore, cannot sustain under the law, which is hereby set aside by allowing the instant petition.