MUHAMMAD JUNAID GHAFF AR, J.---- Through this civil appeal, the appellant has impugned order dated 22.11.2019 passed by the District Judge, Larkana in Summary Suit No.03/2019, whereby while allowing application under Order VII, Rule 1 1, C.P .C filed by the respondent, the plaint has been rejected.
2. Learned Counsel for the appellant has contended that on default by respondent, the appellant filed F.C. Suit No.112/2018 before 2nd Senior Civil Judge, Larkana; however , vide order dated 22.11.2018 on the basis of notification dated 28.03.2017 the plaint was returned under Order VII, Rule 10, C.P.C., asking the appellant to present the same before the District Judge, Larkana; that thereafter Summary suit No.03/2019 was filed under Gas (Theft Control and Recovery) Act, 2016, ["2016 Act"] which was admitted and summons were issued, whereas no leave to defend application as required under the Act was filed within time; however , thereafter along with the leave to defend application a condonation appli cation as well as an application under Order VII, Rule 11, C.P.C. was filed on behalf of the respondent which has been allowed; that the learned Judge while doing so has observed that no notification was placed on record under Section 3(1) of the 2016 Act, whereas, according to him, the diary sheet dated 08.11.2019 clearly reflects that notification dated 02.05.2017 was placed on record; that the notification has been issued under Section 3 of the 2016 Act and has in fact established Gas Utility Court by conferring such jurisdiction to all the District and Sessions Judges of the Province of Sindh in consultation with the Hon'ble Chief Justice; that under the 2016 Act the Gas Utility Court has both the powers i.e. the civil jurisdiction as well as the criminal jurisdiction; that a suit for recovery against the consumer of a gas utility company can only be filed under the 2016 Act before the Gas Utility Court as Section 4 confers exclusive jurisdict ion; that the judge has erred in rejecting the plaint and instead ought to have proceeded with the recovery suit on merits, and therefore, the impugned order is liable to be set aside, with further directions to the learned District Judge to decide the case on merits.
3. On the other hand, learned Counsel for respondent has conceded that though a notification dated 02.05.2017 was placed on record; however , the same is only in relation to trial of offences under the 2016 Act and does not confer any civil jurisdiction on the District and Sessions Judges of the Province, therefore, the plaint has been correctly rejected,
4. I have heard both the learned Counsel and perused the record.
5. The facts have been stated hereinabove but for the sake of repetition it may be noted that earlier an ordinary suit was filed by the appellant before the Senior Civil Judge, Larkana, for recovery of an amount of Rs.32,750,486.41/- along with markup, who pursuant to notification dated 02.05.2017 returned the plaint under Order VII, Rule 10, C.P.C. for its presentation before the District Judge, Larkana. Thereafter , the appellant filed Summary Suit No.03/2019 before the District and Sessions Judge, Larkana, wherein the plaint has been rejected under Order VII, Rule 11, C.P.C. It appears that the learned Judge passing the impugned order has done so on the ground that that no notification under Section 3(1) of the 2016 Act has been placed on record. The relevant finding in the impugned order reads as under;
7. Admittedly after notice of this application repeated chance had availed by plaintif f but failed to produce the notification as per section 3(1) of the Act.
8. Pursuant to above discussion, without touching merits of the case as well as rest of the grounds urged in the application along with other applications, I am of the humble opinion that without the notification as per provision of section 3(1) of the Act, this court has no jurisdiction to take cognizance of this case. I therefore, reject the plaint of this Suit under Order VII, Rule 1 1(d), C.P .C., with order as to no costs.
5. This Court is totally at a loss to understand the rationale of passing the afores aid order . It is neither here nor there. Besides having no merits, it is also not based on true appreciation of the facts available before the Court.
The observation as above is belied from the record inasmuch as at least i notification dated 02.05.2017 was placed on record as per diary sheet dated 08.11.2019. If the learned Judge was of the opinion that this notification by itself does not confer such jurisdiction; then the learned Judge ought to have given detailed reasons as to why the said notification is not applicable or does not confer jurisdiction on him insofar as civil suit for recovery is concerned.
Instead in a very slip-shod and cursory manner the application has been allowed and the plaint has been rejected.
Such conduct itself is a valid ground to set-aside the impugned order and remand of the case; however , for the discussion to follow there are other reasons as well to set-aside the impugned order .
6. Insofar as order of rejection of plaint under Order VII, Rule 11, C.P.C. is concerned, again the same even otherwise does not have any merits even if one goes with the presumption that the learned Judge had no jurisdiction in the matter . From where does Order VII, Rule 11 (d) [where the suit appears from the statement in the plaint to be barred by any law] comes into effect. Lacking jurisdiction cannot be equated with a plaint being barred in law. It is not for the litigant to confer or establish jurisdiction on a Court. As soon as the notification was placed on record, it was for the Court to see that whether if had jurisdiction or not. But under no circumstances, it could be said by burdening the litigant that his plaint is barred in law. And even it is so, then under what law it is barred?
Both issues are diagonally opposite and cannot be equated as has been done in the impugned order . The impugned order appears to be without proper appreciation of the provisions of Order VII, Rule 10 and Order VII Rule 11, C.P.C. It may be observed that an application under Order VII, Rule 11, C.P.C., can only be entertained by Court having jurisdiction in the matter , as it is only the Court which otherwise has jurisdiction which can reject the plaint on the ground that it is barred in law. If the Court has no jurisdiction to adjudicate a matter on merits, then that Court cannot exercise such jurisdiction to reject the plaint on the ground that it is barred in law. The Court lacking jurisdiction can only exercise the powers under Order VII, Rule 10, C.P.C., for returning the plaint for its presentation before the appropriate Court having jurisdiction and not to exercise powers for rejection of the plaint.
In the case reported as Samsonite IP Holdings S.a.r .l. v. Famous Brands (Pvt.) Limited (2019 CLD 1060 ), I had the occasion to dilate upon this issue and the following observations are relevant: - "Notwithstanding this, at the very outs et, I had also confronted the learned Counsel for the Defendant as to how both these applications under Order VII, Rules 10 and 11, C.P.C. are maintainable simultaneously , to which the learned Counsel for the Defendant failed to respond satisfactorily . It needs to be appreciated that an application under Order VII, Rule 11, C.P.C. can only be entertained by a Court of competent jurisdiction.
It is settled law that a plaint can only be rejected by a Court which otherwis e has jurisdiction to entertain the Suit/plaint and decide the entire lis on its merits, and if during such proceedings, an application has been filed by the Defendant for rejection of the plaint on the grounds so mentioned under Order VII, Rule 11, C.P.C., the Court having such jurisdiction can decide the application either way. However , once it is pleaded on behalf of the defendant that the Court has no jurisdiction and plaint be returned under Order VII, Rule 10, C.P.C., then perhaps, this Court is of the view that no application can be filed and entertained under Order VII, Rule 11, C.P.C. by the same Court. By filing such application, the Defendant submits to the jurisdiction of the Court and waives the objections to that effect, and therefore, cannot press upon an application under Order VII, Rule 10, C.P.C. for return of the plaint in view of these observations, I am of the view that both these applications do not merit any consideration at the present moment and are liable to be dismissed and it is so ordered accordingly ."
Reliance may also be placed on the case of Muhammad Nasir v. Abdul Hakim Khan (2011 CLC 748). Therefore, in view of such position the impugned order is liable to be set aside and the matter has to be remanded to the District Judge, Larkana.
7. However , since the issue is of a larger effect on all proceedings initiated by Gas Utility Companies in the entire Province of Sindh, it needs some further discussion so as to resolve the controversy for future cases as well. It would be advantageous to refer to the relevant provisions of the 2016 Act to have a better understanding of the issue in hand and the implication of notification dated 02.05.2017. Sections 2(i), 3, 4 5 and 6(1) read as under:- "2. Definitions.--(1) In this Act, unless there is anything repugnant in the subject or context,--
(a) .... (b) ..... (c) ...... (d) ...... (e) .......... (f) ...... (g) ......... (h)..........
(i) "Gas Utility Court means a Gas Utility Court established under section 3.
3. Constitution of Gas Utility Courts. ---(1) The Federal Government may, in consultation with Chief Court concerned, and by notification in the official Gazette, establish as many Gas Utility Courts in a district as it may deem necessary for the purposes of this Act and appoint a Judge for each of such Courts from amongst the District and Sessions Judges in that district.
Explanation.---- For the purpose of this sub-section District and Sessions Judge includes Additio nal District and Sessions Judge.
(2) Where more Gas Utility Courts than one have been established to exercise jurisdiction in the same territorial limits the Federal Government shall define the territorial limits of each such Court.
(3) Where more Gas Utility Courts than one have been established in the same or different territorial limits, the High Court may if it considers it expedien t to do so in the interests of justice or for the convenience of parties or of the witnesses, transfer any case from one Gas Utility Court to another .
4. Exclusive Jurisdiction of Gas Utility Courts.----( 1) A Gas Utility Court shall have exclusive jurisdiction with respect to all matters covered by this Act.
(2) The Court having jurisdiction under this Act shall be a Gas Utility Court having jurisdiction in the place in which the Gas Utility Company , consumer , gas producer or of fender , as the case may be, is situated.
5. Powers of the Gas Utility Court .----(1) Subject to the provisions of this Act, a Gas Utility Court shall,-
(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the' Code of Civil Procedure, 1908, and
(b) in the exercise of its criminal jurisdiction try offences punishable under this Act and shall, for this purpose have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898),
(2) Notwithstanding anything to the contr ary contained in this Act a Gas Utility Court shall not take cognizance of any offence punishable under this Act except upon a complaint made in writing by a person authorized in this behalf by a Gas Utility Company in respect of which the of fence was committed.
(3) Gas Utility Court shall in all matters with respect to which the procedure has not been provided for in this Act, follow the procedure laid down in. the Code of Civil Procedure, 1908 (Act V of 1908) and the Code of Criminal Procedure, 1898 (Act V of 1898);
(4) All proceedings before a Gas Utility Court shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and Gas Utility Court shall be deemed to be court for the purposes of the Code of Criminal Procedure, 1898 (Act V of 1898) .
(5) Subject to sub-section (6), no court or authority shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Gas Utility Court extends under this Act.
(6) Nothing in subsection (5) shall be deemed to af fect,
(a) the right of a Gas Utility Company to seek any remedy before any other court, tribunal or forum including official liquidator or Receiver that may otherwise be available to it under the law; or
(b) the powers the Gas Utility Company , or jurisdiction of any Gas Utility Court as is referred to in clause (a) to require the transfer to a Gas Utility Court of any proceedings pending before any such court immediately before the coming into force of this Act.
(7) All proceedings pending in any other court, including suits for recovery shall stand transferred to, or be deemed to be transferred to, and heard and disposed of by the Gas Utility Court having jurisdiction under this Act, On transfer of proceedings under this sub-section, the parties shall appear before the Gas Utility Court concerned on the date previously fixed.
(8) In respect of proceedings transferred to a Gas Utility Court under subsection (7), the Gas Utility Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court from which the proceedings were transferred.
(9) The Gas Utility Court may, if it so requires, be assisted in technical aspects of the Natural gas sector involved in any case by an amicus curiae who has at least 10 years experience in the relevant field.
(10) Remuneration of the amicus curiae and the party or parties by whom it will be payable will be determined by the Gas Utility Court keeping in view the circumstances of each case.
6. Procedure for complaints and suits for default before Gas Utility Court----( 1) Where a person is involved in an offence under this Act or where there are sums due or recoverable from any person, or where a consumer has dispute regarding billing or metering against a Gas Utility Company , a consumer or Gas Utility Company , as the case may be, may file a complaint or suit, as the case may be before a Gas Utility Court as prescribed by the Code of Civil Procedure, (Act, V of 1908) or the Code of Criminal Procedure, 1898 (Act V of 1898)."
8. Perusal of the aforesaid relevant provisions of the 2016 Act reflects that under Section 2(i) Gas Utility Court has been defined as a Court established under Section 3, whereas, section 3 provides that the Federal Government may in consultation with the Chief Justice of the High Court concerned through a notification establish as many Gas Utility Courts in a district as it may deem necessary for the purposes of this Act and appoint a judge for each of such courts from amongst the District and Sessions Judges in that district. This clearly reflects that a Gas Utility Court has to be constituted / established and the Judge of that Court has to be from amongst the District and Sessions Judge in that district. Neither a new Court would be set-up so to say, nor a separate Judge would be appointed for the purposes of this Act. This distinction is very pertinent and needs to be noted for the discussion to follow . Section 4 provides that as Utility Court shall have exclusive jurisdiction with respect to all matters covered by this Act. Insofar as Section 5 is concerned, and on which reliance was also placed by the learned Counsel for the respondent, the same provides that subject to the provisions of this Act a Gas Utility Court shall in the exercise of civil jurisdiction have all the powers under the Civil Procedure Code, 1908 and in the exercise of its criminal jurisdiction, try offences punishable under this Act, and shall for this purpose have the same powers as are vested in a Court of Sessions under the Criminal Procedure Code 1898. Subsections (7) and (8) of Section 5 provide that all proceedings pending in any other Court including suits for recovery shall stand transferred to the Gas Utility Court having jurisdiction under this Act and the Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer of jurisdiction and shall not recall and re-hear any witness and so on and so forth. Section 6 provides the procedure for filing a complaint in respect of offences and a suit for recovery , as the case may be, before a Gas Utility Court.
After perusal of the aforesaid provisions in juxtaposition it clearly reflects that first and foremost is the establishment of Gas Utility Courts under Section 3(1) of the 2016 Act. If the Court is not supposedly established under the said provision, then no further acts of the Court could be within the jurisdiction conferred by law. Be it civil or criminal. In the notification dated 02.05.2017 [at page 133], it reflects that copy of said notification was sent to the Registrar , High Court of Sindh, Karachi, with reference to his letter dated 28.03.2017, which was not placed on record. Therefore, office was directed to call copy of such letter from the office of Registrar and the same has been placed before me. The said letter reads as under:- "From: Registrar , High Court of Sindh, Karachi.
To, The Secretary , Government of Pakistan, Ministry of Law and Justice, Islamabad.
SUBJECT : ESTABLISHMENT OF GAS UTILITY COUR TS.
I am directed to invite your kind attention towards the fact that pursuant to promulgation of the Gas (Theft Control and Recovery) Act, 2016 the Courts prescribed under section 3 of the Act ibid have not been established. The complaints/ criminal cases lodged under the above mentioned Act are being furnished to the ordinary Courts of law despite lacking jurisdiction to adjudicate upon such cases, particularly , pre-arrest and post arrest bail application which involve liberty of person and require urgent consideration/adjudication by the court of law .
I am further directed to state that in order to avoid chaotic situation, the Hon'ble Chief Justice has authorized the District and Sessions Judges in Sindh, as an stop-gap arrangement, to deal with the cases registered under the above mentioned newly promulgated statute within their territorial, limits and assign jurisdiction to the Judicial Magistrates in their respective districts for carrying out day to day criminal proceedings and trial till establishment of Courts enunciated under the Act ibid. You are, therefore, requested to take immediate steps on top priority basis, in this behalf and forthwith establish sufficient number of Courts in Sindh, after completing process of consultation with this Court, as required by section 3 of the Gas (Theft Control and Recovery) Act, 2016, within three days.
The receipt hereof may please be acknowledged.
Sd/- (GHULAM MUST AFA. MEMON)
REGISTRAR"
9. Perusal of the aforesaid letter reflects that after promulgation of the 2016 Act, the Federal Government had failed to establish Gas Utility Courts under Section 3 of the said Act, and matters were being brought before ordinary Courts in respect of offences and complaints including the pre-arrest and post arrest bail and therefore, a stop-gap arrangement was made by the Hon'ble Chief Justice. Thereafter , Federal Gover nment was approached to take immediate steps for establishing sufficient number of Courts under Section 3 of the 2016 Act. Pursuant to this letter , notification dated 2.5.2017 has been issued and the preamble of the said notification conferring jurisdiction on the 27 District and Sessions Judges of the Province of Sindh, reads as under: - "NOTIFICA TION Islamabad, the 2nd May , 2017 S.R.O. 293(I)/2017 .----In pursuance of section (3) of the Gas (Theft Control and Recovery) Act, 2016 (XI of 2016), the Federal Government, in consultation with the Chief Justice of the High Court of Sindh is pleased to confer the powers of the Judge of Gas Utility Courts under the said Act to exercise the powers for trial of offences under the said Act in their respective districts, namely:- S No. District and Sessions Judges
(1) (2)
1. District and Sessions Judge, Karachi (South).
2. District and Sessions Judge, Karachi (Central).
3. District and Sessions Judge, Karachi (East).
4. District and Sessions Judge, Karachi (W est).
5. District and Sessions Judge, Dadu.
6. District and Sessions Judge, Hyderabad.
7. District and Sessions Judge, Jamshoro.
8. District and Sessions Judge, Kashmore.
9. District and Sessions Judge, Larkana.
10. District and Sessions Judge, Mirpur Khas.
11. District and Sessions Judge, Shaheed Benazirabad (Nawab Shah).
12. District and Sessions Judge, Sanghar .
13. District and Sessions Judge, Sukkur .
14. District and Sessions Judge, Tando Mohammad Khan.
15. District and Sessions Judge, Thatta.
16. District and Sessions Judge, Malir .
17. District and Sessions Judge, Badin.
18. District and Sessions Judge, Ghotki.
19. District and Sessions Judge, Jacobabad.
20. District and Sessions Judge, Khairpur .
21. District and Sessions Judge, Matiari.
22. District and Sessions Judge, Naushahro Firoz.
23. District and Sessions Judge, Kamber at Shandadkot.
24. District and Sessions Judge, Shikarpur .
25. District and Sessions Judge, Tando Allafi Yar.
26. District and Sessions Judge, Tharparkar .
27. District and Sessions Judge, Umer Kot.
10. Perusal of the aforesaid notification reflects that it has been issued under Section 3 of the 2016 Act in consultation with the Chief Justice of the High. Court of Sindh and the Federal Government is pleased to confer the powers of the Judge of the Gas Utility Court under the said Act to exercise the powers for trial of offences under the said Act in their respective districts. The use of the word "trial of offences" was relied upon by the learned Counsel for the respondent to establish that it is only the criminal jurisdiction, which has been conferred on the District Judge and not the civil jurisdiction. Though, apparently , on the face of it, this contention appears to be attractive; however , one must not lose sight of the fact that it is Section 3 of the 2016 Act which has to prevail. Under Section 3, first a Gas Utility Court has to be established and once a Court is established, then the Court itself has been conferred jurisdiction, both civil and criminal by the Act itself under Section 5 ibid. A Court already established under Section 3 does not require any notification for conferring powers for civil or for that matter criminal jurisdiction / matters. The Federal Government does not have the authority to bifurcate Section 3 ibid. Neither it has any power to make any stop-gap arrangements for conferring powers only for trial of offences; nor for any other purposes.
Moreover , as noted hereinabove, it is only required to establish the Court by a Notification under S.3 ibid, and that is to be done by appointing a Judge for each such Court from amongst the District and Sessions Judges. It does not require any other effort on the part of the Federal Government as it is not the intention of the legislature that some separate Courts would be established for or under the 2016 Act and separate and independent Judges would also be appointed. For all legal and practical purposes, the notification by itself can only be validated if it is issued under Section 3 by establishing the Gas Utility Courts. In fact, this is what the learned Registrar , High Court of Sindh had requested to the Secretary , Ministry of Law and Justice through his letter dated 28.03.2017; however , it seems that the since the immediate worry for the Registrar was continuance of stop gap arrangement in respect of offences, bails and remand issue, therefore, the Ministry while issuing the notification dated 2.5.2017 has lost sight of the very explicit provision of Section 3 of the 2016 Act. If the intention of the Ministry is to confer jurisdiction only for trial of offences i.e. criminal jurisdiction, then the notification itself would be held to be illegal and without lawful authority as Section 3 does not confer any such powers upon the Federal Governm ent to bifurcate the jurisdiction.
The only power it has, is to establish Gas Utility Courts and since this is a special law, a Gas Utility Court once established has both the jurisdictions i.e. civil as well as criminal and so also has the exclusive jurisdiction to try all such matters as are mentioned in the Act. The jurisdiction as mentioned in section 5 ibid is independent and inherent of the Court once is it establishe d under Section 3 and is not to be confused with the establishment of the Court under Section 3 of the 2016 Act. In fact, it even provides for transfer of all pending cases regarding recovery of the amount pursuant to alleged theft of gas.
11. The harmonious interpretation of the notification in question would be to save it; rather than setting it aside. It is a matter of jurisdiction conferred on the Court(s) which have already taken cognizance in criminal matters relating to offences under the 2016 Act. At the same time a litigant is not to be punished for it has no say or power in establishing a Court. It is a matter solely lying with the Federal Government and it is a sorry state of affairs that even after passing of almost 4 years, the Court(s) have not been established and notified with clarity . This Court could have held that the notification by itself has to be read (under the doctrine of reading down a statute ) as a notification under Section 3 by establishing the Gas Utility Courts, but since this is a civil appeal in respect of an order under Order VII, Rule 11, C.P.C. and not under the Constitutional jurisdiction, therefore, while showing restraint the impugned order is set aside and the matter is remanded to the learne d District Judge, Larkana, who, before finally considering the implication of notification dated 2.5.2017 as above, shall first approach the office of the Registrar and seek proper clarificati on, whereas, the Registrar of Sindh High Court, as well, is directed to approach the Ministry of Law and seek proper clarification in view of the observations as above. Let such exercise be finally completed preferably within 60 days from the date of this order . After completion of such exercise, the learned District Judge shall proceed accordingly .
12. With these observations, the appeal is allowed, the impugned order is set aside and the matter is remanded as above. Of fice to send copy of this order to the Registrar of this Court at the Principal Seat forthwith. {{Foot Note}} 1 Haroon-ur-Rashid v. Lahore Development Authority [2016 SCMR 931] and Rauf Baksh Kadri v. The State and other ( 2003 MLD 777 ) {{Foot Note}}