MIAN SAQIB NISAR, J.~ Petitioner filed a suit for recovery of a sum of Rs. 22876/- against the respondent on account of electricity charges which, according to the petitioner, he paid for the tubewell, out of which, respondent has also been consuming water and promised to bear the charges of electricity.
2. This suit was contested by the respondent who denied the allegations made in the plaint.
However, in paragraph No. 3, he states that he did consume the water for sometime and had duly paid his share which he promised with the petitioner.
3. The trial Court framed two issues. Parties produced their evidence and learned Civil Judge, passed a decree in favour of the petitioner and against the respondent on 30.7.1996.
4. Respondent filed an appeal which was accepted by the Appellate Court on 5. 12.1993, by reversing the findings of the trial Court on both the issues.
5. Learned counsel appearing on behalf of the petitioner has strenuously argued that the Appellate Court has misread the record and the judgment passed in appeal, is not only improper but is illegal and unsustainable because of {he evidence produced by the petitioner on issue No. 1.
6. On the other hand, learned counsel for the respondent, has stated that the onus to prove issue No. 1, was on the shoulder of the petitioner who had miserably failed to discharge, that there was no agreement between the parties to share the amount of electricity as alleged by the petitioner.
Besides, this fact has not been proved by him through evidence. He states that the judgment given by the Appellate Court is accurately based upon proper appreciation of evidence and there is no error either of misreading or non-reading.
7. I have myself perused the judgments of both the Courts below and evidence on the record.
8. I feel that the judgment of the Appellate Court is well reasoned as material evidence on the record has been considered and the finding is that the petitioner has miserably failed to prove issue No. 1 in as much as no agreement between the parties to share the amount of electricity as claimed by the petitioner, as also the amount of bill which has been received by petitioners from WAPDA is regarding the water consumed by the respondents, has been proved. The statement of the petitioner's witnesses are assumptions and doesn't meet the requirement of proving of issue No. 1.
9. Learned counsel for the petitioner has also argued that the petitioner has made an offer for special oath under article 163, of the Qanun-e-Shahadat Order, which was declined by the respondent. He states that the trial Court has made reference to this fact, whereas the Appellate Court has totally ignored this aspect of the matter; he admits that no such application was ever made before the trial Court nor any offer in writing was made at the appellate stage. No application has even been filed before this Court.
10. Contentions of learned counsel for respondent is correct; nothing in writing has ever been made by the petitioner for taking special oath under Article 163 At the fag end of the trial, a verbal request was made but subsequently was not agitated before any forum. Therefore, I do not agree with the petitioner's counsel that some adverse inference should be drawn against the respondent for not taking special oath.
11. In view of above, I uphold the findings on issue No. 1. So far as issue No. 2 is concerned, I reverse the findings of the appellate Court, because there is no visible defect in the form of the suit and respondent's counsel also conceded to this effect.
12. Consequently, this petition has no merits. No material irregularity or error in the exercise of jurisdiction has been pointed out in the judgment and decree of the Appellate Court. Accordingly, this petition is dismissed. No order as to costs.