SHAKEEL AHMAD. J. This is a petition for revision of concurrent judgments & decrees of the learned Courts below decreeing the suit of the plaintiff for declaration and permanent injunction.
02. The subject of the dispute which has given rise to this revision petition is that respondent/plaintiff is the Chief Executive/ Managing Director of Al-Madina CNG Filling Station near Faqir Abad, Police Station, Charsadda Road, Peshawar. He received excessive bill of Rs.1331180/- (thirteen lacs one thousand one hundred and eighty) and Rs.1499223/- (fourteen lacs ninety nine thousand two hundred and twenty three) issued by the petitioners/defendants for the month of August and September, 2011 respectively. Being aggrieved by the said bills, the respondent/plaintiff brought a suit for declaration asking therein to declare the amount in dispute as incorporated in bill for the month of August and September, 2011, as illegal, malafide, without lawful authority and ineffective upon his rights. As a consequential relief, the respondent/plaintiff sought issuance of permanent injunction restraining the petitioners/defendants from demanding the disputed amount through impugned bills and disconnecting the gas supply of filling station, perpetually. It was averred in the plaint that the respondent/plaintiff is paying the monthly bills of the consumed gas constantly without any default and never committed theft of gas. After service of summons, the petitioners/ defendants put their appearance and contested the suit by way of filing the written statement raising therein many legal and factual objections. From divergent pleadings of the parties, the learned trial Court framed the following issues and directed them to produce their evidence: - ISSUES.
1. Whether the plaintiff has got a cause of action?
2. Whether the plaintiff is estopped to sue?
3. Whether proper court fee has been affixed?
4. Whether the plaintiff is willful defaulter?
5. Whether the meter of the plaintiff had become defective and plaintiff has charged on the basis of average monthly bill consumption?
6. Whether the defendants have lawfully issued toe months charges in the bills for the months of August, September and October 2011?
7. Whether the defendants have lawfully charged the LPS in the bills from the months of September 2011 till date?
8. Whether plaintiff is entitled to the decree as prayed for?
9. Relief?
03. In support of his contention, the respondent/plaintiff produced two witnesses including himself. He also produced documentary evidence and closed his evidence. In rebuttal, the petitioners/defendants produced Muhammad Ishaq, Engineering Billing as DW-1. The defendants also produced documentary evidence in the statement of the said DW and closed their evidence. On the conclusion of trial, the suit was decreed in favour of the respondent/plaintiff vide judgment dated 10.12.2014. Not contented with the judgment & decree of the learned trial Court, the petitioners/defendants went in appeal which was declined vide judgment & decree dated 27.02.2019. Hence this revision.
4. I have heard arguments of the learned counsel for the parties at great length and perused the record with their able assistance.
5. During arguments, learned counsel for the petitioners attempted to raise new points, which were neither raised in the written statement nor before the learned trial Court nor before the appeal Court and went on to say that the civil Court had no jurisdiction to adjudicate upon the matter. In support of his contention, he read out section 11 of the OGRA Ordinance, 2002. He next argued that suit was incompetent as it was not filed against the company. He lastly argued that during checking, gas meter of the respondent/plaintiff, was found sticky and defective, therefore, average bills for the months of August and September, 2011 were sent to him and prayed for setting aside the concurrent findings of the learned Courts below.
6. As against that, the learned counsel for the respondent/plaintiff contended that the instant revision petition has been filed by the official respondents, on behalf of the company, but they were not authorized by means of resolution of the Board of Directors to file the revision petition and went on to say that the instant petition is incompetent and not maintainable for want of resolution. He next argued that there is no specific bar in filing the civil suit against the petitioners/defendants and civil Court had jurisdiction to adjudicate the matter. He further argued that mere mis description of nomenclature in the panel of defendants would not render the suit incompetent. He lastly contended that the concurrent findings of the learned lower Courts are based on proper appreciation of evidence, which needs no interference.
07. The admitted facts of the case are that respondent/plaintiff is the Chief executive of Al-Madina CNG and gas connection was given to his said filling station by the respondents/company through gas meter bearing No.RC20880272. The gas meter of the said premises was removed/disconnected on 19.10.2011 on the allegation that it was found sticky and defective. The respondent/plaintiff received impugned bills of Rs.1331180/- for the month of August and Rs.1499223/- for the month of September, 2011. Being aggrieved by the said bills, the respondent/plaintiff filed suit before the learned civil judge, Peshawar.
08. Now adverting to first contention of the learned counsel for the petitioners regarding jurisdiction of the civil Court to entertain and adjudicate upon the matter. It is by now settled that the material for determining jurisdiction is what is pleaded in the plaint presented in the Court. Provisions of section 9 of the CPC vests jurisdiction in civil Court to try all the cases of civil nature unless its cognizance is either expressly or impliedly barred. Civil Court is a Court of ultimate jurisdiction where a litigant claiming grievance of civil nature, can ask for its redressal, while Section 11 of the OGRA Ordinance, 2002 relates to filing of complaint. It will be advantageous to reproduce the same as follows: -
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.
09. It will also be advantageous to reproduce section 2(iv) of the OGRA Ordinance, 2002, which defines consumer and retail consumer differently, as under:- "Consumer. Means a retail consumer for natural gas, retail consumer for oil or wholesale consumer''.
10. Whereas, section 23 of the OGRA Ordinance, 2002 deals with "grant of licenses" to store and sale of the CNG.
11. It was not denied that respondent / plaintiff is not the licensee of the respondents / company under the Ordinance ibid. A plain reading of section 11 of the OGRA Ordinance, 2002 reflects that it does not deal with the type of complaint; which the respondent had impugned against the petitioners/ defendants. Here the dispute relates to the sending of excessive billing. Jurisdiction of civil Court is not barred under the Ordinance of 2002, therefore, in my opinion, civil Court rightly assumed the jurisdiction and decided the controversy between the parties. In the case reported as "Dr, Amanullah Khan versus Province of N.W.F.P through Secretary, Finance, Government of N.WF.P. Peshawar and 2 others" (MLD 1994 2329), it was held that jurisdiction of civil Court is never ousted when matter of malafide is being adjudicated upon despite the provision of a barring clause in a Statute jurisdiction of a civil Court is not ousted to see if particular authority under any Act or Ordinance has acted in accordance with the provisions of such Act or Ordinance or not. In this context further reliance can be placed on the judgment reported as "Abdul Majeed Khan vs. Tawseen Abdul Haleem" (PLD 2012 SC 80), wherein, it was observed that any order passed malafidely in colourable exercise of power cannot be termed as an act done in exercise of power conferred by Act or Rules, but, in fact is an act of abuse of power to which no protection can be extended. In this respect further reliance can be made on the judgments reported as "Gul Shah and others vs. Hafiz Ghulam Muhammad and others" (2009 SCMR 1058) & "Samiullah and another vs. Fazle Malik and another" (PLD 1996 SC 827). In the case reported as "Malik Allah Bakhsh vs. District Judge. Rajanpur and 2 others" (2014 CLC 216), it was held that availability of alternate remedy would not oust the jurisdiction of civil Court. Similar view was followed in the subsequent judgments reported as "Islamic Republic of Pakistan through Secretary. Ministry of Commerce, Islamabad vs. General Traders and Ammunition Manufacturers Ltd. Through Chief Executive" (2008 CLC 1462), "Kali Khan & others vs. Bodlo and others" (2013 CLC 507), "Muhammad Siddique vs. Member. Board of Revenue & others" (2013 YLR 756) and "San tosh Kumar Barwani vs. Electrical Inspector. Karachi & another" (2009 YLR 32).
12. From the discussion made hereinabove, I am of the considered opinion that there is no ouster clause in the OGRA Ordinance, 2002, and by mere implication the jurisdiction of the civil Court cannot be ousted.
13. Coming to the second objection of the learned counsel for the petitioners that plaint was not competently filed against the petitioners/defendants. I noted that this objection was neither raised nor urged before the learned lower fora, however, in the interest of justice, I proceed to examine this objection of the learned counsel for the petitioners. I found that in the instant case, the respondent/plaintiff has raised voice against the specific acts committed by officers/employees of the SNGPL which resulted in excessive billing for the months of August and September, 2011. Hence, in my view, impleading the officials of SNGPL by designation is sufficient to meet requirement of Order 1 Rule 3 CPC, 1908 being "proper parties" if not, "necessary parties". In this context reliance can be placed on the most celebrated judgment of Dhaka High Court reported as "Haji Sheikh Afzal Hossain vs. Bhabani Prosad Saha" (PLD 1963 Dhaka 25) wherein, issue of filing a suit against a company, which was not correctly described in the plaint, has elaborately been dealt with as under:-
6. The next ground relating to maintainability of the suit urged by Mr. B. C. has is that the landlord being a registered company, the suit ought to have been filed by the company, as such, so that the present suit filed not by the company but by one Bhabani Prosad Saha as Managing Director cannot be maintained This objection was raised in the Courts as well, but was over ruled on two grounds. In the first place the Courts below considered the objection as too technical and were of the opinion that suit was really filed in the name of Shaha Estate Ltd. from its Pabna branch, the words "Bhabani Prosad Saha on behalf of the company" being redundant. Secondly they also found that Bhabani Prosad was authorised under the Articles of Association of the plaintiff company to file suits on its behalf and that as such the present suit as filed by him on the basis of that authority was maintainable.
7. There appears to be nothing wrong in the above view taken by the learned Courts below. It is no doubt the general rule that a company must sue or be sued, not in the names of its agents or servants but in its own corporate name but where, however relief is really sought by or against the company and the error g is, merely one of mis description a suit, though nominally by or against the agent, may be treated in substance to be one by or against the company.
14. The above referred judgment has elaborately explained the effect of mere mis description of a party in the suit, where the same has been filed against the agent of the company. In such cases, it is to be treated in substance to be one by or against the said company.
15. In the present case, the record reflects that wakalatnama, which was signed by the Manager of SNGPL & others officials had their signatures and their official stamps, it clearly suggests that company was duly represented by its agents/officials.
16. The objection of the learned counsel for the petitioners is of no help to him as description of the defendants were as under: -
1. General Manager, SNGPL office situated at 33, Sector-B-2, Phase-5, Hayatabad, Peshawar.
2. Senior Engineer, SNGPL office situated at 33, Sector-B-2, Phase-5, Hayatabad, Peshawar
3. Metering In charge, SNGPL office situated at 33, Sector-B-2, Phase-5, Hayatabad, Peshawar.
4. Billing In charge, SNGPL office situated at 33, Sector-B-2, Phase-5, Hayatabad, Peshawar.
5. Area Accountant, SNGPL office situated at 33, Sector-B-2, Phase-5, Hayatabad, Peshawar.
17. And the correct description ought to be as follows: -
(i) SNGPL through Manager.
18. Certainly, this is a hyper-technical objection, raised by the learned counsel for the petitioners at a belated stage which has been laid to eternal peace by the judgment referred to above.
19. The important thing is to be noted that in substance, the SNGPL had notice of the suit, which was filed against it, and that it was duly represented by its officers to fulfill the principle of natural justice. In my view, the record of the present case depicts that these requirement of law was substantially fulfilled. In the case reported as "Imtiaz Ahmad vs. Ghulam All & others" (PLD 1963 SC 382), it was observed by the Apex Court that technicalities of law, whether of procedural or substantial in nature, shall not be allowed to defeat substantial justice or on that account to let unjust order to remain.
20. Even, otherwise, misjoinder or non-joinder of parties could not result in dismissal of suits as held in the case reported as "Sardar Muhammad Kazim Zia-Uddin Durrani & others vs. Sardar Muhammad Asim Fakhr - uddin Durrani & others" (2001 SCMR 148).
21. Turning to objection of learned counsel for the respondent regarding maintainability of the revision petition in the absence of resolution of Board of Directors of the company. Admittedly, the suit was filed against the Manager & others officials of SNGPL not with the description as SNGPL through its manager, therefore, even in the absence of resolution of the Board of Directors of the company, I hold that the revision petition has competently been filed.
22. Coming to merits of the case, I found that it was pleaded by the petitioners that gas supply of the Filling Station/CNG of the respondent was cut off and meter was removed on 19.10.2011 on the allegation that it was found sticky and defective and that the same was not registering the gas supply from August to September, 2011 and in support of their contention they placed reliance on the meter reading book and meter replacement register, which were produced before the learned trial Court as EX.PW-1/4 & Ex.PW-1/5. However, in support of their contention, the petitioners failed to produce any laboratory report. No evidence could be brought by them that the meter in question was either sticky or defective or tampered with. Representative of the petitioners was produced as DW-1, during cross-examination admitted that the petitioners/defendants have not enclosed any laboratory report in respect of meter in question. He further admitted that at the time of replacement of gas meter No.DR00030514 & meter No.RC 2080272, it were neither tampered with nor suspected one, he self-stated that the meter was found sticky, however, in the absence of laboratory report, this stance of the petitioners could not be proved. It seems to be based on surmises and conjectures. More interestingly, the meter was removed on 19.10.2011 and excessive bills were sent to the respondent/plaintiff for the months of August and September, 2011, which were sent prior to removal of meter. Therefore, in my view, it was rightly held by the Courts below that the impugned bills were sent to the respondent/plaintiff without any legal justification.
23. It is by now settled that concurrent findings of facts of Courts below, if based on proper appreciation of evidence, could not be interfered with in revisional jurisdiction because such jurisdiction is meant only to rectify jurisdictional and material irregularities resulting in miscarriage of justice.
24. The learned counsel for the petitioners has not been able to point out any misreading or non-reading of evidence or illegality or jurisdictional defect in the impugned judgments of the learned lower fora calling for interference.
25. In the result, this revision petition is dismissed with no order as to costs.