MUHAMMAD NAEEM ANWAR, J.--- By invoking the constitutional jurisdiction of this, court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has question the legality and correctness of the orders dated 3rd of April 2020 and 9th April 2020 of the learned Additional District Judge-IX / Duty Judge and learned Additional District Judge IX, Peshawar, whereby both learned Additional District Judges while performing duties as a "Duty Judge" have declined the extension of time for depositing the disputed amount before the Additional District Judge I/Gas Utility Court in term of order dated 5th of March 2020 of the Learned Judge, Utility.
Court, Peshawar, by which the petitioner was directed to deposit the amount assessed/fine etc. against him in the court within (30) days and, consequently, the respondents were restrained from disconnecting the gas supply to the premises of the petitioner 'in accordance with section 29 of Gas (Theft Control and Recovery) Act, 2016.
2. Learned counsel for the petitioner contended That the petitioner, no doubt, was directed to deposit the disputed amount within a period of thirty (30) days but due to "Corona virus Crisis" the business of the petitioner became standstill due to which he could not deposit the amount within the stipulated time, for which an application was submitted for extension of time but the learned Duty Judge did not entertain the application and, vide the impugned orders turned down the petitioner's prayer. He further added that in addition to the original bill, the petitioner is not in a position to pay the disputed amount with late payment surcharge (LPG). He next contended that vide notification dated 1st of January, 2013 and 23rd of August2013, the price of natural gas for industrial sectors for financial year, 2013-14 were increased from Rupees 488 to Rupees 600 per MMBTU and for captive power sector were increased from 573 to 600 MMBTU. The said Notification dated 31st August, 2015 was assailed before this Court through different petitions and this Court vide judgment dated 31st of May, 2019 rendered in Writ Petition No 3915-P of 2015, dismissed the same being not maintainable, however, the Sindh High Court has set aside the said Notification, which matter is still pending before the apex court. He went on to say that for the financial year 2016-2017, once again new prices were notified by Notification bearing No. SRO(I)/2016 dated 30th December 2016, which was assailed before the this court, however, the petition was dismissed being not maintainable and now the Civil petition for leave to appeal is pending before the august Supreme Court. He argued that that increase in price is still sub judice before the apex Court if four petitions, i.e., CPLA No. 1215; CPLA No. 1216, CPLA No. 1217 and CPL No. 1448 all of year 2019 in which leave has been granted by the honorable Supreme Court, vide order dated 8th August 2019. Lastly contended that now when the petitioner was served with another notice dated 28th February 2020 for recovery, the petitioner has filed Civil Suit. No. 78/1 before Gas Utility Court and his prayer for ad- interim injunction that the respondents be restrained from disconnecting the gas supply, the learning Judge,' Utility Court, vide order dated 5th of March 2020, passed an interim injunction, however, subject to the payment of disputed amount within a period, of thirty (30) days and the case was adjourned for 19th of March 2020 and before the expiry of thirty (30) days period, the petitioner has filed an application before the Duty Judge on 3rd of April 2020, who directed the petitioner to appear before the concerned court, but on the date fixed, once again the learned Presiding Officer of the Gas Utility Court was on leave and the matter was placed before Duty Judge, who simply adjourned the case and posted it for 23rd April, 2020 and, thus, petitioner assailed both the orders through this petition.
3. Arguments heard and record perused.
4. We, without entering into the merits of the case as the matter is still pending before Gas Utility Court, would confine ourselves to the extent of impugned orders dated 5th of March 2020, 3rd of April 2020 and 9th April 2020. Admittedly, the Gas Utility Courts, were constituted under section 3 of Gas (Theft Control and Recovery)' Act, 2016, having got the Exclusive jurisdiction in the matter pertaining to the disputes of gas utility amongst (i) consumer gas utility company, (ii) main pipeline, (iii) meter, (iv) successor in interest (v) Sui Northern Gas Pipeline Limited Company, (vi)
Tempering and (vi) "sum due" as provided in section 2 of the Act, 2016.
The record transpires that after institution of the suit, the. learned Judge, Gas Utility Court, has passed a conditional order by restraining the respondents from disconnecting the gas supply and directing the petitioner to deposit the disputed amount within the period of 30 days as per section 20 of the Ibid Act. It is not disputed that the amount was not paid within the stipulated period, in which respect the petitioner prayed for the extension of time by filing an application, however, the orders impugned herein reflects that no specific, order either allowing or rejecting the prayer has been passed because on both the occasions the petitioner approached the Duty Judge, firstly, when he appeared for antedate on 3rd of April 2020, as the matter was already fixed for 9th of April 2020 and, secondly, when on 9th April 2020, he appeared, he was directed to appear before the concerned Court on 23rd of April 2020. He should have to approach before the concerned court for, the same prayer and when there is no specific order either for the extent of time or otherwise, then the aggrieved party can certainly file a constitutional petition under section 13 of the ibid Act.
5. In fact, the matter for extension of time for deposit of the disputed amount is clogged with interim injunction against the respondents by which they were -restrained from disconnecting the. gas supply, which was an interlocutory order. Likewise, vide the impugned orders neither the extension was granted nor it was refused but simply the matter was adjourned. The term interlocutory has been derived from Latin as "Medieval Latin interlocutorius, from Late Latin interloqui" and defined as "Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to, provide a temporary or provisional decision on an issue. Thus, an interlocutory order is not final and is not subject to immediate appeal" In Legal dictionary; it has also been defined as "This word is applied to signify something which is done between the commencement and the end of a suit or action which decides some point or matter, which, however, is not a final decision of the matter in issue as, interlocutory judgments, or decrees or orders, Provisional; temporary; not final, Something intervening between the commencement and the end of a suit; which decides some point or matter, but is not a final decision of the whole. controversy",' as such, it is interim in nature As per Black's, Law Dictionary by HENRY CAMPBELL BLACK MA fourth edition Interim order as defined as "one made in the meantime, and until something is done," similarly it explains interlocutory as "an order which decides not the cause, but only settles some intervening matter relating to it; as when an order is made, on a motion in chancery, for the plaintiff to have an injunction to quiet his possession till the hearing of the cause" and "an order made by a court, at the instance of one of the parties to the suit, commanding the ministerial officer, or opposite party, to do some act, or to show cause why some act, should not be done".
6. The legislature while promulgating the Act under the provision of section 13(6) intentionally has not provided the right of appeal against interlocutory order which reads as; "13(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the gas utility court which does not dispose of the entire case before the gas utility court."
It is an established principle of law that interim order cannot be challenged in the constitutional petition. It has been enunciated by the honorable Supreme Court in case titled Mst. Seema Begum v. Muhammad Ishaq (PLD 2009 SC 45) the principle that: "7. The most important aspect of the case is that respondent. Muhammad [shag had challenged the interim order passed by learned Rent Controller in the Constitution Petition: As such the same was not maintainable and impugned order is liable to be set aside on this score alone."
This court in case titled Muhammad Dad v. Suriya Iqbal (PLD 2000 Peshawar 54) has held that:--- "The petitioner has challenged the interim orders dated 6-3- 1999 and 21-7-1999 through the Constitutional petition in hand. His Constitutional petition is nit maintainable because the appeals against interim order are barred 'under section 15 of the Urban Rent Restriction Ordinance, 1959 which clearly indicated that there was ouster clause specifically barring appeal against interim order of the Rent Controller as only final order was amenable to appeal. The impugned orders being interim orders are not appealable under the relevant law, in such circumstances, question would arise whether such orders could be assailed in Constitutional jurisdiction? Where the law itself has not given the right of appeal against certain orders then same cannot be challenged in any other forum to gain similar object which has been barred by statute itself. It was well settled principle that the remedy which is not directly available cannot be sought indirectly through indirect means. In this respect reliance is placed on "Syed Sagheer Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" 1996 SCM R 1165 wherein it was ruled in the following words: --"The statute excluding a right of appeal from the interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose for examining such orders."
Likewise, this court in case titled Main Muhammad Zia through General Attorney and 6 others v.
Navid Abrar and 3 others (PLD 2005 Pesh. 153), has held that:--- "5. We have heard learned counsel for the parties and have perused the record. There is no denial of the fact that a suit for specific performance of agreement to sell dated 20-9-1993, as amended by agreement dated 7-9-1994 (Annexures D and E) is pending before a competent Court of law for adjudication and in view of the application made by the respondents, the proceedings before Additional Controller of Rents, Peshawar Cantt have been stayed by virtue of order dated 11-9-2001. We find force in the submissions of learned counsel for the respondents that writ petition challenging an interlocutory order is not maintainable for the reason that where law itself had not given right of appeal against certain orders, there the same could not be challenged in any of the forums to gain similar object which had been barred by statute itself. If the Constitutional jurisdiction was allowed to be invoked in cases where appeal is specifically barred, it would negate the very purpose of the statute and render the provision meaningless, as held by this Court in cases titled Zar Faroosh v. Sikandar Aziz and 5 others PLD 1997 Pesh. 64."
7. There is no cavil with the proposition that interim order could not be challenged in constitutional petition and that too when no specific order has been made by the court in which the matter is pending. Another important aspect of the matter is that the restraining (ad interim injunction) was subject to deposit of the disputed amount in accordance with section 29 of the ibid Act.
8. For the reason discussed above, we see no force in the arguments of the learned counsel for the petitioner, thus, the petition in hand is dismissed being without any substance in limine.