MUHAMMAD RAZA QURESHI, J. The instant Regular First Appeal calls into question the legality and propriety of ex-parte Judgment and Decree dated 27.10.2021 (hereinafter referred to as the "Impugned Judgment and Decree") and Order dated 26.01.2022 passed by learned Additional District Judge, Gas Utility Court, Depalpur (hereinafter referred to as the "Impugned Order" ) in exercise of his power under Gas (Theft Control and Recovery) Act, 2016 (hereinafter referred to as the "Act" )
2. As per record, summons were issued to the Appellant being Defendant under Section 6(4) of the Act and Order dated 15.01.2020 reflects that despite personal service, the Appellant did not appear . Though in terms of Section 6(4) of the Act the service was to be affected through all modes duly described in the provisions of law, but the learned Court below upon non-appearance of the Appellant directed issuance of substituted service through publication in the newspaper and consequently , due to non-appearance of the Appellant, the learned Court below through Order dated 19.02.2020 proceeded ex-parte against the Appellant. Though under the mandate of law contained in Section 7(12), the learned Gas Utility Court could have passed judgment and decree forthwith yet to satisfy itself, the learned Court below recorded ex-parte evidence and passed Impugned Judgment and Decree.
3. On 16.12.2021 the Appellant filed an Application for setting aside of Order dated 19.02.2020 (directing ex-parte proceedings) and Impugned Judgment and Decree. Alongwith his Application for setting aside ex-parte proceedings, the Appellant simultaneously filed an Application for leave to defend the Suit. The learned Gas Utility Court being dissatisfied with the reaso ns and justifications contained in the Application dismissed the said Application through the Impugned Order . Hence, the instant Regular First Appeal.
4. Learned counsel for the Appellant submits that the Impugned Judgment and Decree as well as Impugned Order is illegal and unlawful as the Appellant substantiated the reason of his absence justifying for setting aside the Order for ex-parte proceedings and Impugned Judgment and Decree. According to the learned counsel, under Section 8 of the Act, the learned Gas Utility Court had ample power to set aside the Impugned Judgment and Decree.
Additionally , learned counsel has argued that his Application for leave to defend raised substantial questions of law and facts, which necessitated recording of evidence in the matter as the Respondent, SNGPL failed to exhibit any cogent documentary material to support the claim raised before learned Gas Utility Court. According to learned counsel, even the fundamental document justifying tampering of meter was not annexed with the Suit. Therefore, learned counsel contends that the Impugned Judgment and Decree as well as Impugned Order suffer from material illegality and same are liable to be set aside.
5. Conversely , learned counsel for the Respondents has ably assisted this Court and supported the Impugned Judgment and Decree and Impugned Order . Learned counsel has demonstrated from the record of the case file that the Suit bearing No.213/ADJ of 2019 was instituted on 11.12.2019 for recovery of an amount of Rs.1,358,632/- against recovery of sui gas bill as UFG Team of SNGPL had detected that meter of the Appellant was tampered. In support of their claim, the Respondents filed Form under Order VII rule 14 CPC and list of reliance under Order XIII rule 1 CPC enlisting all the documents in support of the Suit. Additionally , SNGPL annexed list of witnesses as required by law. According to learned counsel the Appellant has misled this Court by contending that tampering documents as well as other material documents were not annexed with the Suit, whereas, all these documents were not only placed before the learned Gas Utility Court but have also been anne xed by the Appellant along with instant Appeal. According to learned counsel, despite having proceeded ex-parte against the Appellant, the learned Gas Utility Court did not pass the decree forthwith, rather recorded ex-parte evidence, wherein PW-1 namely Muhammad Iqbal, Superintendent Revenue, SNGPL appeared and deposed before the Court and exhibited all crucial and material documents, therefore, according to the learned counsel, the learned Gas Utility Court went a step ahead to satisfy itself and passed Impugned Judgment and Decree. Accordin g to learned counsel, so far as Application of the Appellant seeking setting aside of ex-parte Order and Impugned Judgment and Decree is concerned that Application itself was evasive, bald and silent about the knowledge of the proceedings and learned Court below rightly rejected the said Application and passed the Impugned Order .
6. Arguments of respective parties have been heard and with their able assistance record in the case has been perused minutely .
7. Upon examination of the Application of the Appellant seeking setting aside of ex-parte Order and Impugned Judgment and Decree, it appears that it is bereft of any substantiation, rather it attempts to justify his absence without adverting to the fact that Order dated 15.01.2020 to whom presumption of truth is attached, marked that notices have been served upon the Appellant, but he did not appear , but the Application throughout remained silent to rebut the presumption attached to the said Order of the Court. Likewise, the Appellant nowhere challenged that notices issued to him were not in accordance with Section 6(4) of the Act or failed to justify that the said Application was filed disclosing potent claim aimed to set aside the ex-parte Order or Impugned Judgment and Decree.
8. Under Section 8 of the Act, the said Application was to be filed within 30 days of the date of the Decree.
Admittedly , the instant Application has been filed with lapse of 49 days. The Application even fails to satisfy that summons in the matter were not duly served and onus in this regard was on the Appellant that the Order dated 15.01.2020 was recorded by mistake of law or fact. According to Section 8 even if the summons were not served upon the Appellant, he had to file this Application within a period of 30 days from the date of knowledge of the decree. In the instant case, the Application is completely silent that how and when the Appellant received knowledge of the decree.
9. In such a situation, the Application seek ing setting aside of ex-parte Order or Impugned Judgment and Decree is declared to be flimsy and bereft of satisfying the test laid down by the applicable provisions of law, therefore, learned Court below rightly dismissed the Application. As the Appellant failed to rebut the presumption of facts as well as law, therefore, it is established that the Appellant was served in accord ance with the mandate of law contained in Section 6(4) of the Act. Reliance in this regard is placed upon "Messrs Ahmad Autos and another vs. Allied Bank of Pakistan Limited" (PLD 1990 S.C 497), "Messrs Waris Steel Mills through Proprietor and another vs. Silk Bank Limited" (2015 CLD 818) and "Abdul Sattar vs. The Bank of Punjab" (2017 CLD 1247 ), wherein the learned Divisional Court of this Bench held as under: "A publication which is one of the modes of service is also considered as a valid service and it is not necessary to prove service through all three modes simultaneously and any of them should be sufficient in this regard."
10. Since this is an Appellate Court before whom under the principles of law, the whole matter reopens, therefore, assuming that the Application for setting aside ex-parte Order or Impugned Judgment and Decree was validly and lawfully filed (which the Appellant has failed to satisfy this Court), the Application for leave to defend annexed with the file fails to canvass the fundamental requirements of law and demonstrate a defence that may have persuaded the Court leading to recording of evidence.
11. In this regard provisions applicable to Application for leave to defend are governed by Section 7(3) of the Act mandating an Applicant to file an Application for leave to defend (i) in the form of written statement; (ii) containing summary of substantial questions of law as well as facts in respect of which in the opinion of the Applicant evidence needs to be recorded; Section 7(4) of the Act mandatorily directs the Applicant to specifically state; (i) the amount of gas supplied by gas utility company and consumption by the Defendant; (ii) the amount paid by the Defendant to the gas utility company for such consumption and dates of payment up to the date of institution of the Suit; (iii) the amount of outstanding dues and other amounts relating to the supply and consumption of gas by the Defendant;
(iv) amount, if any which the Defendant disputes as payable to the gas utility company; (v) a statement specifically admitting or denying the documents relied upon in the plaint; Section 7(5) of the Act commands that Application for leave to defend shall be accompanied by all the documents which in the opinio n of the Defendant support the substantial questions of law and facts raised by the Applicant.
12. In the opinion of this Court, the provisions of section 7(3)(4)(5) are mandatory in their nature, scope and ambit.
The object of the law is to simplify the defence so that the Gas Utility Court can reach to a just conclusion as expeditiously as possible. Declaring these provisions as mandatory has two reaso ns, firstly , all these subsections use the term 'shall' and secondly pursuant to Section 7(6) a penal consequence has been provided for non- compliance of the provisions of section 7(3)(4)(5) in the following manner: "(6) An application for leave to defend which does not comply with the requireme nts of sub-sections (3), (4) and, where applicable, sub-section (5) shall be rejected, unless the defendant disclose s therein sufficient cause for his inability to comply with any such requirement."
13. The ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the legislative intent. While the use of the word 'shall' is not the sole factor which determines the mandatory or directory nature and effect of provision, it is certainly one of the indicators of the legislative intent. Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question. It is the duty of the Court to gather the real intent of the legislature as expressed in the law itself. One of the important tests that must always be implied in order to determine whether provision was mandatory or directory in character was to consider whether the non-compliance of a particular provision caused inconvenience or injustice and, if it did, the Court would say the provision must be complied with and that it was obligatory in its character .
14. There are three fundamental tests which are often applied with remarkable success in the determination of this question. They are based on consideration of the scope, object and purpose of the enactment in question, on consideration of justice and balance of convenience and on a consideration of the nature of the particular provision, namely , whether it affected the performan ce of a public duty or related to a right, privilege or power . In the opinion of this Court, in latter case, it is mandatory . Since the ultimate test is the intent of the legislature and the provision provided a strong and clear indicator for ascertaining such intent of the legislature. A provision in the statute is mandatory if the omission to follow it rendered the proceedings to which it related illegal and void. In the instant case by virtue of Section 7(6) the intent of legislature clothed with the consequence is very much clear and consequently , the provision of section 7(3)(4)(5) are held to be mandatory . Reliance in this regard is placed upon "Apollo textile Mills Ltd and others vs. Soneri Bank Ltd." (PLD 2012 Supreme Court 268) and "The Collector of Sales Tax, Gujranwala and others vs. Messrs Super Asia Mohammad Din and Sons and others"
(2017 SCMR 1427 ).
15. From the contents of Application for leave to defend, it is clear that it fails to (i) tabulate the questions of law as well as facts that may require recording of evidence; (ii) it fails to satisfy the tests laid down in Section 7(4) of the Act; and (iii) it fails to annex all those documents which may support the defence of the Appellant. Therefore, even if the Application seeking setting aside of ex-parte Order and Impugned Judgment and Decree is presumed to be acceptable, the Appellant fails on the test envisaged by law for passing in institution of an Application for leave to defend.
16. In view of what has been discusse d above, this Court considers that the learned Gas Utility Court had committed no illegality by passing the Impugned Judgment and Decree and Impug ned Order and both necessitate and warrant no interference.
17. Consequently , this Appeal is dismissed with no order as to cost.