This revision petition arises out of a suit for declaration and injunction filed by the respondent which was decreed by the trial Court on 10th of December, 1977. This decree was maintained by the Additional District Judge, Lahore on 12th of March, 1979 when the appeal filed by the respondent was dismissed.
2. The respondent is the owner of a printing press and for its operation had obtained an electric connection from the petitioner. The respondent applied for the extension of the load as it intended to install some new machinery. This extension was sanctioned but according to the respondent before this extension could be given effect to, the respondent withdrew its request and the additional load was never supplied. The petitioner however, subsequently proceeded to work out its bill on the basis of extended load and demanded a sum of Rs. 68,677.03 by applying Tariff B-2 which was applicable to a consumer having sanctioned load of more than 70 KWs. The validity of this demand was challenged by respondent in the suit by contending that it was only 53 KW and the extension in load though sanctioned was neither provided to nor availed of by it. During the pendency of the suit the amount in question was paid by the respondent to the petitioner in order to save its premises from disconnection.
3. On the basis of the evidence led before it, the trial Court decreed the suit in favour of the respondent on the finding that the petitioner had failed to prove that connection of the respondent had increased from 52 K W to 70 K W and that the extension in load was actually availed of by the respondent. This finding was affirmed by the Additional District Judge in appeal.
4. The question as to whether or not the extension of load sanctioned by the petitioner was actually availed of or made available to the respondent is one of the fact and stands concluded by a concurrent finding recorded by the two Courts below. It has not been shown that this finding suffers from any misreading or non-consideration of evidence. On the other hand as has been noted by the learned Courts below, the petitioner had failed to produce any evidence whatsoever to prove that the actual load was enhanced or the additional load sanctioned was supplied to the respondent. No possible exception can, therefore, be taken to the fording of the two Courts below in this respect.
5. Learned counsel for the petitioner however contended that as the suit was for declaration and injunction only, it was not open to the Courts below to have passed a decree for the recovery of money. It is to be noted that at the time when the suit was filed the amount in dispute had not been paid by the respondent to the petitioner. However, during the pendency of the suit in order to save its premises from being disconnected the respondent was obliged to make this payment. Since the payment was made during pendency of the suit it could not affect' maintainability. See Mian Niaz Hussain and another v. Imdad Hussain (PLD 1965 Lah. 172). Mr. Ahmad Waheed Khan, learned counsel for the respondent has however, conceded that the Courts below could not have passed a decree for recovery of money but should have granted the declaration and an injunction enabling the respondent to have the disputed sum of Rs. 68,677.03 adjusted towards future electricity bills. In these circumstances the decree granted by the two Courts below is liable to be modified to this extent.
HBT./W-74/1,