IJAZ ANWAR, J.---Through the instant Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seek to set aside the order and judgment dated 10.11.2016 passed by the learned Additional District Judge-I, Karak in Civil Revision Petition No,30/CR of 2016 and to restore the order and judgment dated 25.7.2016 passed by the learned Senior Civil Judge, Karak in Civil Suit No,124-/1 of 2016.
2. Brief facts of the case are that petitioners/ plaintiffs filed a suit for declaration cum perpetual mandatory injunction to the effect that the respondents are not entitled to reduce the pressure of natural gas to the CNG stations of the petitioners at the pressure @ of 15 pounds per square inch and the respondents have illegally reduced the pressure of gas supply to the CNG stations of the petitioners in violation of the agreement.
3. During pendency of the suit, the petitioners filed an application for grant of temporary injunction till decision of the suit and the respondents submitted an application for rejection of the plaint under Order VII Rule 11, C.P.C. Both the applications of each other were contested by the parties by filing their written replies. The learned trial Court after hearing arguments of learned counsel for the parties, dismissed the application of respondents for rejection of the plaint under Order VII, Rule 11, C.P.C. while application of the petitioners for grant of temporary injunction was accepted vide order dated 25.7.2016.
4. Feeling aggrieved by the order of learned trial Court dated 25.7.2016, the respondents preferred Civil Revision Petition before the Court of learned Additional District Judge, Karak. The learned revisional Court after hearing both the parties, accepted the revision petition vide order and judgment dated 10.11.2016, set aside the order dated 25.7.2016 of the learned Senior Civil Judge, Karak and by allowing the application of respondents filed under Order VII, Rule 11, C.P.C, the plaint of the petitioners was rejected, hence the present writ petition.
5. Learned counsel for the petitioners argued that even in cases where there is ouster clause in the statute the civil Courts still have the jurisdiction, the superior Courts have held that such exclusion shall not be readily inferred. He placed reliance on 2009 CLC 659(PHC), 2002 CLC 34(KHC). 2003 CLC 1922 and 2001 CLC 1618.
6. Learned counsel for the respondents on his turn, referred to the definition clause of OGRA Ordinance, 2002, that defines Authority. He then referred to section 11 about filing of complaint for contravention of any of the provision of the OGRA Ordinance, 2002. Learned counsel also referred to section 43 of the OGRA Ordinance, 2002 and contended that it has been given overriding effect, thus availability of remedy of complaint and overriding 'effect of section 43 made an ouster clause in approaching civil Court without first availing the remedy of complaint. He also referred to complaint Resolution Procedure for Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) Regulations 2003, providing a full mechanism for dealing with any such complaints. He argued that appellate Court has rightly rejected the plaint in view of the availability of alternate remedy.
7. Arguments heard and record perused.
8. The main grievance of the petitioners in their suit for declarataion and permanent injunction was for fulfilling the contract executed with the respondents for provision of gas pressure of 14.62 pound per square inch and temperature of 60 Fahrenheit as agreed.
9. Perusal of record reveals that the petitioners have approached the respondents by submitting different applications and complaints against low gas pressure. It seems that when no response was received, the petitioners have approached the civil Court.
10. The main stress of the respondents was on Article 20 of the contract executed with the petitioners, that provides:- "20 DISPUTE RESOLUTION.
In the event of any difference or 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 to the Authority for resolution."
11. Section 11 of the OGRA Ordinance 2002 relates to filing of complaint. It is also reproduced for convenience:- "11. Complaints.-(1) Any interested person may file a written complaint with the Authority against the licensee for contravention of any provision of this Ordinance or of any rule or regulation.
(2) The Authority shall on receipt of a complaint, provide an opportunity to the complainant as well as to the licensee, or any other person ,against whom such complaint has been made to state its case before taking action thereon."
12. In the OGRA Ordinance, 2002 Consumer and retail consumer has been defined differently.
Similarly licence and licensee have been assigned separate definitions. These are also reproduced as follows:-- Section.2.
(iv) "Consumer" means a retail consumer for natural gas, retail consumer for oil or wholesale consumer.
(xxxiv)"Retail consumer for natural gas" means a person who purchases or receives natural gas for consumption and not for delivery or resale other than resale for vehicular use or self- consumption by a licensee in connection with its regulated activity.
(xi) "Licence" means a licence granted under this Ordinance.
(xii) "Licensee" means the grantee or holder of a licence."
Section 23 of the OGRA Ordinance, 2002 deals with grant of license about permission to store and sale of the CNG.
13. Admittedly the petitioners are licensee under the Ordinance ibid. While scrutinizing section 11 of the OGRA Ordinance 2002, it transpire that it has not dealt with the type of complaint which the petitioners have against the respondents, because the petitioners are also licensee under the OGRA Ordinance, 2002. Similarly under the Complaint Resolution Procedure for Natural Gas Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) Regulations 2003, complainant has been defined as retail consumer while as referred above the petitioners are themselves licensee under the Ordinance, ibid.
14. Similarly under the Complaint Resolution Procedure Regulations, 2003 only the complainant or the licensee if not satisfied with the order can file appeal to the Authority within thirty days.
Regulation 9 is reproduced below:-
9. Appeal.---If the complainant or the licensee is not satisfied with the decision under these regulations, within thirty days of the decision, either party may appeal against the decision to the Authority pursuant to section 12 of the Ordinance. The memorandum of appeal shall be filed along with fee prescribed in the rules.
It thus transpires that petitioners being licensee will be aggrieved only if any order is passed against them and under the Regulations will have no remedy of filing complaint or appeal as required under sections 11 and 12 of the OGRA Ordinance, 2002 read with the Complaint Resolution Procedure for Natural Gas Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG)
Regulations, 2003.
15. On searching the case law only one judgment of the Balochistan jurisdiction was found reported in PLD 2015 Balochistan 110, wherein it was held that before filling a civil suit a complaint has to be filed. However, that judgment is distinguishable because it was a case between a retail consumer and the SNGPL. This was not relevant to the facts of the present case. The petitioners considering themselves aggrieved cannot be left remedy-less and they have rightly approached the civil Court for the resolution of their dispute with the respondents.
16. In 2009 SCMR 1058, the august Supreme Court of Pakistan held that despite bar contained in a statute, the civil Courts are Courts of ultimate jurisdiction and can decide a matter where malice or mala fide is alleged. In PLD 1996 SC 827, the apex Court refused leave against the judgment of this Court, that has set aside the orders of lower forums and allowed the party to substantiate its claim by producing evidence to determine the alleged ouster clause in terms of section 21 of the Waqf Properties Ordinance, 1979. In 2014 CLC page 216, the Hon'ble Lahore High Court held that availability of alternate remedy would not oust the Jurisdiction of civil Court. Similar views are expressed in 2013 YLR 756, 2013 CLC 764 (LHC), 2013 CLC 507 (KHC), 2009 YLR 32 (KHC) and 2008 CLC 1462 (KHC). Thus when there is no ouster clause in the OGRA Ordinance. 2002 or the Compliant Resolution Procedure, Regulations, 2003 then by mere implication the jurisdiction of the civil Court cannot be ousted. The civil Court being Court of ultimate jurisdiction can entertain any suit of civil nature.
17. The learned Revisional Court has thus misdirected itself in setting aside the order dated 25.7.2016 of the learned Senior Civil Judge, Karak and rejected the plaint of the plaintiffs/petitioners.
18. In view of the aforesaid reasons, this writ petition is allowed, the impugned judgment and order of the learned Revisional Court dated 10.11.2016 is set aside. The Revision Petition shall be deemed to have been pending and be decided on merit.