FAISAL ZAMAN KHAN, J. Through this regular first appeal under Section 13 of the Gas (Theft, Control and Recovery) Act, 2016 order and decree dated 24.06.2021 passed by the learned Additional District Judge/Gas Utility Court, Lahore has been assailed, whereby suit for declaration etc. filed by the appellant has been dismissed being hit by principle of res judicata.
2. Succinctly, the fact of the case are that in order to assail the bill for consumption of gas issued by the respondents for the month of May, 2010 amounting to Rs.18,888,620/-, a suit for declaration with mandatory and permanent injunction was instituted by the appellant against the respondents, in which the latter was granted leave to defend the suit whereafter the issues were framed. During the course of proceedings of the suit, an objection was raised by the respondents that previously on the same subject matter an identical suit was also instituted by the appellant against the respondents, which was dismissed, hence, the subsequent suit is not maintainable, whereupon, both the parties were afforded opportunity of hearing and through the impugned order and decree the suit was dismissed being hit by principle of res judicata, hence, this appeal.
3. Learned counsel for the appellant submits that since the previous suit, was dismissed under Order XVII Rule 3, C.P.C. and no adjudication was made on merits, therefore, a subsequent suit is maintainable. He places reliance on judgments reported as Muhammad Chuttal v. Atta Muhammad through L.Rs. (2007 SCMR 373), Production Engineer PPL, I/C, Kandhkot and 4 others v. Azizullah and 5 others (PLD 2024 Sindh 259) and Gohar Aman v. Shah Nazim (2022 MLD 1583).
Further adds that it was a recurring cause of action, therefore, even otherwise, the subsequent suit was maintainable.
4. Replying to the above, learned counsel for the respondents while relying on a judgment of the Supreme Court of Pakistan reported as Muhammad Afzal Khan v. Muhammad Aslam (deceased) through L.Rs. (2022 SCMR 1275) submits that a subsequent suit on the same subject matter is not maintainable.
5. Arguments heard. Record perused.
6. From the perusal of the available record, it transpires that the bill amounting to Rs.18,888,620/- was issued by the respondents for the month of May, 2010 was challenged by the appellant through the present lis. It is admitted by the parties that on the same subject matter an identical suit was instituted by the appellant, in which on 03.10.2011 leave to defend the suit was granted to the respondents, whereafter, out of divergent pleadings of the parties as many as 04 issues were framed, but despite repeated opportunities, since appellant failed to produce its evidence, therefore, vide judgment and decree 10.05.2017 the suit was dismissed under Order XVII Rule 3 C.P.C.
Instead of challenging the said judgment, appellant on 19.10.2017 opted to file a fresh suit (present lis) and in paragraph No.2 thereof, this fact has been admitted as the dismissal of the previous suit has been attributed to the counsel, who was representing the appellant in the previous suit that he did not inform it, therefore, inadvertently the evidence could not be produced, hence, the fresh/second suit was maintainable.
7. From the above factual matrix it is abundantly clear that on the same subject matter as has been highlighted in the present lis the appellant previously filed an identical suit before the Gas Utility Court, Lahore, which stood dismissed for want of evidence and the said judgment and decree was never assailed by the appellant before anv court or fora, hence, the same has attained finality and since sufficient opportunities were afforded to the appellant for producing his evidence and defending his case in the previous round of litigation and it has miserably failed to do so, hence, the appellant cannot be allowed to re-open a past and closed chapter in a fresh/new suit, hence, the subsequent suit filed by the appellant squarely hit by principle of res judicata as envisaged in Section 11, C.P.C. and as interpreted by the Supreme Court of Pakistan in judgments reported as Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (2023 SCMR 992) and Mustafa Kamal and others v. Daud Khan and others (PLD 2004 SC 178), hence, the court below has rightly passed the impugned order and decree.
8. As regards argument advanced by the learned counsel for the appellant that since the previous suit was dismissed under Order XVII Rule 3, C.P.C. and no adjudication was made on merits, therefore, a subsequent suit is maintainable, the same is not tenable for the reason that it is settled proposition of law that a judgment passed while invoking the provision of Order XVII Rule 3, C.P.C. shall be construed to be a judgment on merits and principle of res judicata shall be squarely applicable to any subsequent/fresh suit. For reference reliance can be placed on judgments reported as Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474), Niaz Ahmad Khan v. Khishwar Begum and 19 others (PLD 2003 Lahore 48), Muhammad Amin and others v.
WAPDA through Chairman and others (2015 MLD 1327), Ghulam Haider v. Mst. Rasoolan and another (2001 MLD 1603) and Shah Muhammad and another v. Hafiza Begum and 2 others (2000 MLD 404).
9. As far as the argument advanced by the learned counsel for the appellant that it is a recurring cause of action, therefore, subsequent suit can be instituted is concerned, the same is not tenable for the reason that initially the bill of May 2010 was issued to the appellant for making payment thereof and since he has failed to make payment, thus, in every subsequent bill the amount, which has been mentioned in the bill for the month of May 2010, shall be reflected as arrears and once the initial bill issued in May 2010 is assailed before the court of competent jurisdiction and the same is upheld (for whatever reasons) subsequent bills reflecting arrears would not give a fresh cause of action to the appellant to assail the same.
10. As regards the judgments referred by the learned counsel for the appellant, the same having different facts and circumstances are not applicable to the case in hand.
11. Be that as it may, since the appellant has failed to prove his case and the learned counsel for the appellant has not been able to point out any substantial error or defect of law in the impugned order and decree passed by the Gas Utility Court, Lahore, therefore, no ground for interference is made out.
12. In view of the above, this appeal being devoid of any merits is dismissed.