1. JUDGMENT MUHAMMAD MOOSA K. LEGHARI, J.- This is a suit for declaration, mandatory injunction and damages.
2. As per pleadings the plaintiff was in occupation of premises No. 456, Khalidabad, Firdous Colony, Gulbahar, Karachi, and was running a hotel therein since 21.9.1985 in the name and style of M/s. Safina Hotel. The plaintiff claims to have purchased the premises through registered sale-deed, In the said premises amenities like water, electricity and gas were provided. A gas connection was provided therein in they ear 1979 vide meter No. M-226761 9,. A/C. No. 54/9111/01, the charges and bills thereof were being regularly paid by the plaintiff. The monthly bills were ranging from Rs.
2. 4000/- to Rs.5000/-. However, in case of increase the plaintiff was billed at the range of Rs. 12000/- to Rs. 14000/-. It was pleaded that during the couple of years the hotel remained closed during strikes and curfew in the city as it was situated the troubled area. The monthly reading was being taken by the meter reader/inspector of the defendant and bills were issued, accordingly which was paid and that there was no report of any misuse or any act of tempering with the Suit Gas line.
3. According to the pleadings plaintiff constructed first floor above the hotel for residence of his employees and workers and obtained a gas connection for residential purpose to be charged on the domestic rate through meter No. M-0808434, A/C. No. 54/07934/6. The bill of the domestic use fell within the range of Rs.60/- to Rs. 200/- per month and was regularly paid, It was alleged that in the months of May and June, 1997 officials of the defendant started demanding monthly Bhatta from the plaintiff far and above the monthly bills to ensure uninterrupted flow of the gas for running the hotel business, failing which the threatened to disconnect the gas supply. The plaintiff however did not pay any head to the demands and this tug of war went on for about two months. During this period various teams comprising of Engineers, and other staff of the defendant made several unsuccessful efforts to involve the plaintiff on false grounds. An Engineer namely Aurangzeb alongwith three persons visited the hotel on 10.7.1997 and checked the gas meter connection but could not find any fault. His visit was followed by another Engineer namely Zulqarnain accompanied by three/four staff members who also checked the gas connection but failed to detect any fault. Subsequently one Engineer named Hafiz alongwith his team visited the plaintiff's hotel and straight away demanded Rs.200,000/- (Rupees Two Lacs) from the plaintiff and threatened to disconnect the gas supply if his demand was not met. On 17.7.1997 the staff of the defendant disconnected the domestic meter on frivolous ground that a generator was being operated from the gas through the said meter which was infact lying on the first floor for emergency use in case of load, shedding of the electricity in the area. According to the plaintiff the said generator was only operated through commercial meter installed on the ground floor in the motel in emergency else it was never put to use. It is alleged that after removal of said domestic meter again a demand of illegal gratification was made but this time the officials were agreeable to an amount lesser then Rs.2,00,000/- but according to the plaintiff their demand was turned down, It was averred that from 17.7.1997 till 22.7.1997 almost after every one or two hours,, defendant's officials visited the hotel of the plaintiff and tried to persuade him to pay them a handsome amount on regular basis in order to avoid complications and disconnection, but the plaintiff refused. On 22.7.1997 one Engineer Mr. Liaquat alongwith his staff visited the hotel premises at 10.00 a.m. And after making demand of Rs.2,00,000A as Bhatta and on refusal of the plaintiff to make payment thereof, removed the Sui Gas meter alongwith service regulator and took away the same while issuing threats of further complications. The plaintiff however, did not approach the defendant for restoration of the commercial connection of the gas and after few days the officials of the defendant closed the main service line of the gas leading to his hotel and took away the service valves alongwith them.
4. The plaintiff then visited the higher officers of the defendant but he was once again advised to fulfil the illegal demand. However, on his visited the plaintiff was found to be using un-metered gas through by passing the main line and as such was involved in the theft of gas which in violation of the gas supply contract. The plaintiff was accordingly required to make payment of a sum of Rs.
5. 3,78,662.07 on account of revised gas consumption bill from July, 1994 to June, 1007 which was payable by 18.8.1997. The plaintiff submitted the reply of the said letter through his Advocate under a registered letter dated 27.11.1997. It was alleged that because of illegal disconnection the plaintiff suffers losses of business, respect and goodwill on account of false and manufactured ground of theft of gas, his prestige was lowered down in the eyes of his customers, friends, relatives and as such he was entitled to the,damages. According to the plaintiff the cause of action arose when the defendants officials started illegally demanding the monthly Bhatta from the plaintiff for the supply of the gas end when defendant sent vigilance teams for inspection of use of un-metered . Gas in the sai'd premises and finally on 22.7.1997 when the defendant took away/removed illegally the commercial and domestic meters installed in the said premises. The plaintiff valued his suit for the purpose of Court-fee and jurisdiction at Rs. 13,00,000/- and for mandatory injunction at Rs.10,000/-. f. .
3. On the basis of above pleadings the plaintiff has prayed for judgment and decree in his favour and against the defendants in the following terms:-
(a) That.It be declared that the plaintiff is lawful user of the Sui Gas supply on commercial basis vide A/C No. 54/9111/0/0 through Meter No. M-2267619-M and Sui gas supply on domestic basis vide A/C No. 54/07934/6 through Meter No. 0608434 installed on first floor and ground of the premises No. K-456, Khalidabad, Firdous Colony, Gulbahar, Karachi,- respectively and removal by the defendant on false, frivolous, mala fide ground is illegal and unlawful and the plaintiff is entitled for restoration of the same through the above Account Number and Meter Numbers or through any other account or meter numbers, t in the suit premises.
(b) That it be declared that the demand raised vide letter No. B-54/9111/0/0, dated '1.8.1997 amounting to Rs.3,78,772.07 or any other amount along with revised bill is illegal, unlawful, unwarranted, manufactured, excessive and against the record and as such is liable to ignored and quashed. ' -
(c) That it be declared that the letter of the defendant No. B-54/9111/0/0, dated 17.11.1997 under headings of "Up-dating of gas supply deposit", demand therein for deposit of p2- Rs.13,800/- more in cash is also illegal, unlawful and ineffective for all purposes as the plaintiff has already deposited Rs.22,000/- as security which is lying with the defendant, who is not liable to deposit any more amount of alleged security.
(d) Judgement and decree be passed in favour of the plaintiff and against the defendant for a sum of Rs. 1300,000/- as actual damages and for compensation ,of mental torture and harassm ent and business loss alongwith future damages alongwith mark-up at 16% due to non- supply/restoration of gas in the suit premises till its realization.
(e) Mandatory injunction directing the defendant to restore/install Sui gas meters for supply of gas on commercial as well as domestic basis in the hotel at premises No. K-456, Khalidabad, Firdous Colony, Gulbahar, Karachi, .Without any changes or any other amount.
(f) Grant of costs of the proceedings.
(g) Special compensatory costs under Section 35- A, C.P.C.
(h) Any other relief (s) Hon'ble Court may deem fit and proper under the circumstances of this case.
4. After service the defendant filed their written statement whereby following preliminary legal objections were taken. *
(1) That the suit under reference as framed is not maintainable in law under the provisions of Section 42 of Specific Relief Act.
(2) That the present suit is not maintainable in law as admittedly/manifestly the rights and obligations created between the plaintiff and the defendant company by contract and not by law and as such no suit for declaration U/S 42 of Specific Relief would lie during the subsistence of contract but only suit for Specific Performance of Contract is a proper remedy for the plaintiff.
(3) That the relief of damages is also not maintainable in law during the subsistence of contract.
(4) That the present suit is also barred by Sections 55 and 56 of Specific Relief Act as the plaintiff has not come with clean hands.
5. Without prejudice to the legal objections in their written statement defendant submitted that on .3.7.1997 during routine vigilance inspection plaintiff/consumer was found suspected thus for further inspection Senior Engineers with Vigilance Team inspected the plaintiff's premises an found that the consumer/plaintiff was suing gas through by pass by connecting a Tee from inlet line to the outlet house line and as such was committed theft of the gas. The General Manager, Vigilence according informed General Manager, Marketing of the case of theft and request to arrange disconnection of the gas* of the plaintiff's premises' and to sent revised bill to the plaintiff. The meter was accordingly kept under constant surveillance by Special Investing Cell and day today reading was being recorded and eventually the gas supply was disconnected on 22.7.1997 on the ground that special meter reading obtained by the defendant indicated daily consumption of 3,5 M.C.F. Per day whereas as per sale survey estimated gas consumption per day ought to have about 6 M.C.F. Per day. According to sale survey the estimated monthly gas load was worked out to 186 M.C.F. Per month as the hotel of the plaintiff started early in the morning till late in night at about 1.00 to 2.00 a.m. With huge rush and as such the defendant worked out gas bill from July, 1994 to 1996 for three years as follows:- Estimated gas bill from Rs.6,25,053.38 July, 1994 to June, 1997- Loss: Already Paid: Rs. 2,53,857.38 Net Payable: Rs.3,78,722.07 The bill was accordingly sent to the plaintiff on 1.8.1997 for making payment by-due date which was not paid with the result the gas was not restored. The defendant however showed his readiness to restore the gas of the plaintiff on payment of the revised gas bill, It was alleged that the gas supply of the plaintiff was disconnected as plaintiff was unlawfully using unmetered gas through by-paSs by connecting a tee from inlet line to the outlet house line which un-metered use of gas was shown to the plaintiff by senior staff of the answering, defendant. The allegation with regard to demanding.Illegal Bhatta was vehemently denied, It was further asserted that the gas supply was disconnected rightly, legally and under the terms of the contract the plaintiff has committed theft of gas. The grant of prayers made by the plaintiff in the prayer clause of the suit were opposed and it was pleaded that the suit of the plaintiff was not maintainable and was liable to be dismissed with compensatory Cost.
6. On the pleadings of the parties following consent issues were framed/adopted on 4.5.1998:-
(1) Whether the suit is not maintainable under the v law?
(2) Whether the plaintiff was using the gas [Vol.XXIlI Aurangzeb V. Sui Southern Gas Co. Ltd. C.C. 95 (Muhammad Moosa K. Leghari, J.) illegally by installing 'T' in the out-going pipe through the Meter No. M-2267619, A/C 54/9111 provided/fixed at the suit premises?
(3) Whether the defendants illegally removed the commercial gas meter on manufactured ground and willfully caused damages to the plaintiff as claimed in the suit? . *
(4) Whether the defendant illegally removed residential gas meter No. 080434 A/C 54/07934/6 on the ground of using for commercial purpose?
(5) What are the effects of re-installation of domestic meter without providing the allegation of commercial use?
(6) Whether the defendants are entitled to recover Rs.3,78,772.07 or any other amount from the plaintiff?
(7) Whether the defendants are liable for the damages claimed in the suit?
(8) What should the decree be?
6. It will be noted that even these issues do not clearly set out the case of the parties. The parties however proceeded to trial.
7. The plaintiff examined himself as PW-2 and produced sale agreement as Ex.P/1, Original PT-1 as Ex.P/2, photostat copy of tease as Ex.P/3, Gas Bills as Ex.P/4 to P/6-A, tetter dated 1.8.1937 as Ex.P/7, Gas Bills as Ex.P/8 to P/1V, receipt dated 1.12.1997 as Ex.P/12, tetter dated 17,11.1997 as Ex.P/13, letter dated 31.10.1997 as Ex.P/14, TCS receipts as Ex.P/15 to P/15-A, photostat copy of tetter dated 27.11.1997 as Ex.P/16. The plaintiff also examined Roohul Amin as PW-1 and Shoukat Ali Khan as PW-3, in support of his case.
8. The defendant tendered Syed Zulqarnain in defence as DW-1 who produced photo-state copy of certain documents, Aurangzeb was examined as DW-2, Afeef Ahmed as DW-3, Muhammad Moiz as DWr4 and Liaquat Ali as DW-5.
9. I have heard Choudhry Muhammad Iqbal, learned, counsel on behalf of the plaintiff and Mr. Raja Sikandar Khan Yasir', learned counsel for the defendants. No case-law was however referred by either of the party.
10. My findings are as under:- ISSUES NO. 1: Under this issue the maintainability of the Suit u/S. 42 of the Specific Relief Act, 1877 has been questioned.
11. Under Section 42 of the Specific Relief Act, 1877 a person can come to the Court for the declaratory relief with regard to his legal character or any right to property. The maintainability of a suit for declaration was discussed in detail in the case of Alavi Sons Ltd. Reported in PLD 1968 Kar. 222, wherein inter alia it was observed as under:- "A further objection to the maintainability of the suit is that the declaration sought by the plaintiff is neither with respect to the plaintiffs' legal character, nor with regard to any right to the property.
12. Under Section 42 of the Specific Relief Act, 1877, it is only with regard to these matter that a person can come to the Court for declaratory relief. The phrase "legal character" has been used, as held in K.P. Ramakrishna Patter v. K.P. Naryana Pattar and others (ILR 39 Mad. 80) in the sense of "status", which is constituted by the attributes which the law attaches to a person in his individual and .
13. Personal capacity and which, according to Holland is referable to such legal conditions as- -(1) sex,
(2) minority, (3) ' patria potestas' and 'manus', (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death, (120) illegitimacy, (13) heresy, (14) foreign nationality, and (15) hostile nationality. According to Salmond the term "status" is usually confined to personal legal condition or, personal capacities and incapacities, or compulsory as opposed to conventional personal conditions, In this sense, the expression will include persohal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities, or legal conditions imposed upon a person by law without his on consent as opposed to the condition which he has acquired himself by agreement such as the position of a slave. A declaration that the plaintiff has not committed breach of the terms of a contract is a declaration neither regard, to any legal character, nor any right to or in any property. This point is now conclusively settled by the decision of the Supreme Court in M.A. Nasir v. Chairman, Pakistan Eastern Railway and others .(PLD 1965 S.C. 83) from which I would, with respect, reproduce the following observations of Fazle-Akbar, J.:- % "In the suit there was also a prayer for declaration under Section 42, of the Specific Relief Act that the contract in question was till subsisting. The learned counsel has not pressed this point before us. Under the provisions of Section 42 of the Specific Relief Act a person entitled to * 'any legal character' or to 'any right to property can institute a suit for a declaration relief in respect of his title to such legal character or right to property, It will, therefore, suffice to say that Section 42 does not contemplate a suit like the present one."
14. This pronouncement should effectively dispose of doubts, if any, with regard to the maintainability of the present suit, which I hold accordingly to be misconceived and incompetent. The plaintiffs remedy could have been either a suit for recession of the contract, or for specific performance is so permitted, or for damages for its breach but none of these course has pursed by the plaintiffs."
15. In the case of Pakistan International Airlines Corporation and 5 others v. M. Izharul Aahsan Qureshi (PLD 1979 Kar. 640) it was held by this Court that the term legal character or status as mentioned in Section 42 of the Specific Relief Act denotes a character or status conferred by law and not one conferred by contract. This view was further reiterated in the case of Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi (PLD 1982 Kar. 313), wherein it was held, inter alia, that Section 42 applies only to a legal character or status apart from a contract. Reference can also be made to PLD 199$ Kar. 59, PLD 1978 Lah. 113, 1998 CLC 165 and 1999 CLC 1719.
16. Adverting to the grant of injunctions, it was observed as under in Alavi Sons Ltd. (ibid): "The relief of injunction sought by the plaintiffs to restrain the defendant No. 3 from making payment of the guaranteed amount to the Government of East Pakistan also cannot be granted, because firstly an injunction of this nature does not come within the scope of Chapter X of the Specific Relief Apt, under which alone the plaintiffs could come for preventive relief, arid, secondly the reliefs which the plaintiffs seek to obtain I this suit can be effectively obtained in other usual proceedings. Under Section 54, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication, in cases where the defendant invades the plaintiff's right to, or enjoyment, of property. Obligation here means any duty enforceable at law. Under Section 56(i), the Court would not grant injunction when equally efficacious relief can be obtained by any other usual mode of proceedings."
17. Relying upon the above-cited case-law, I am of the considered view that the plaintiff has no legal character and was not competent to maintain suit under Section 42 of the Specific Relief Act.
18. Consequently, the plaintiff is not entitled to the relief of injunction as it does not fall within the scope of Chapter X of the Specific Relief Act.
19. Though in view of findings on Issue No. 1" to the effect of maintainability of suit, findings on other issues were not necessary, yet I proceeded to discuss Issue No. 2, as the evidence was already on the record.
20. ISSUE NO. 2: As a matter of fact this issue is relevant for deciding the entfre controversy. The gas connection of the plaintiff was disconnected on the allegation that he was using unmetered gas by installing a Tea in the Commercial Meter No. M-2267619 fixed at the suit premises. The plaintiff has alleged that the supply was illegal disconnected as he had refused to pay Bhatta to the personnel of defendants. Very serious allegations were levelled in the plaint in so many words by the plaintiff.
21. Almost similar allegations were levelled in the Affidavit in evidence filed by Aurangzeb, the plaintiff, In support of the case, the plaintiff also examined two other witnesses namely Rooral Amin who was the employee of the hotel and one Shoukat Ali Khan. None of these witnesses were able to prove the allegations with regard demand of Bhatta by any of the staff members of the defendant.
22. Strangely enough the name of any particular person/staff member was neither mentioned in the plaintiff nor in the affidavit in evidence. The two witnesses examined by the plaintiff in support of his case did not say anything about the demand of Bhatta by any specific employees of the defendants.
23. However, the burden of proving the fact to the effect that the plaintiff was using the gas illegal was upon the defendants. The defendants examined Zulqarnain Who stated that he was asked by Muhammad Moiz, D.W.4 to visit the hotel and thoroughly check.The meter and other equipments.
24. He visited the hotel on 15.7.1997 and thoroughly checked the meter and other equipments. He switched off the meter and lit.The burners which started burning. He prepared such sketch of the line as he doubted that the gas was coming from the source other than the matter. He, therefore, deposed to have submitted a report showing the reading. He deposed that in his remarks he stated that the consumer was using unmetered gas also, In his cross-examination he stated that he checked the lines and found that the line of the defendant was fitted by "T" which was connected to the line of the plaintiff's residence. He, therefore, deposed that the gas was being consumed by the plaintiff 'unmetered'. He was subjected to lengthy cross-examination and the defence taken was that he had no Letter of Authority to give evidence and that he was not competent to inspect or visit the site. He Was not given any order in writing to visit Safina Hotel. To say the least, this defence was sham and was of little consequence as nothing was brought on record in rebuttal. This witness deposed that he has submitted a report stating the use of unmetered gas also and affirmed that the report contained in Ex.D-3 to D-5 to be correct. He further deposed that he was asked by D.W. Muhammad Moiz to submit a written report after his final visit with Mr. Afif, Engineer Industrial probably on 16.7.1997. He denied the suggestion that he prepared such false report in order to compel the plaintiff to pay Bhatta of Rs.2,00,000/-. He deposed that on his visit he found that by pass "T" was fitted to use unmetered gas on both the meters.
25. D.W.2 Aurengzeb supporting the evidence of D.W.l Zulqarnain, stated that one dimension of "T" was burried in the wall which was crossing the wall. He also deposed that it was correct to suggest that from the meter of the plaintiff gas is supplied by affixing "T" to the other meter of the plaintiff. This D.W. Was also given a suggestion for demanding Bhatta which was denied by him.
26. D.W. Afif Ahmed in his examination-in-chief deposed that on 16.7.1997 he visited Safina Hotel alongwith Zulqarnain as the case was referred on the report of Mr. Zulqarnain having suspected use of unmetered gas by the said hotel. He deposed that both of them checked the gas piping installation, gas meters, regulators and gas house lines. They saw "T" connected from the inlet connection of meter to the outlet house line which was not connected by the defendants. He further deposed that this "T" could be used to use the unmetered gas. Seeing this, according to this witness, they closed the meter and started/lit the gas burners and saw burners started burning. He affirmed that when the said "T" is fixed, gas can also be used unmetered without passing through the meter. He further deposed that "T" was found installed in the inlet connection of the meter and unmetered gas can be used. He was confronted with Ex.D/5 to which he affirmed that the words, "using un-metered gas also" mentioned therein were correct, In cross-examination also he affirmed that he visited Safina Hotel after lunch hours alongwith Zulqarnain on 16.7.1997. Hfe further affirmed that a "T" was fixed at the line from where gas on the first floor is supplied. A suggestion was made to him to which he replied that though it was correct to suggest that there was no "T" in- between the service valve and meter lock cock, however there was a "T" in- between the two locks.
27. He denied a suggestion was also made about the demand of Bhatta through a plan conceived by him with D.W. Muhammad Moiz and D.W. Zulqarnain, which was denied by him.
28. D.W. Muhammad Moiz, who was at the relevant time Deputy Chief Manager, deposed that D.W.
29. Zulqarnain visited the site alongwith Afif Ahmed who submitted their report whereupon action of disconnection was taken. He denied a suggestion that he sent Zulqarnain alongwith Afif Ahmed for extortion of Bhgtta. In the cross-examination suggestion were made that after disconnection, the brother of the plaintiff namely Maroof Sultan repeatedly visited D.W. Muhammad Moiz who demanded illegal gratification fori re-connection of the gas supply to which he denied. No suggestion whatsoever has been put to this witness with regard to approaching the plaintiff Aurangzebj himself, It will not be out of place to mention here thatj Maroof Sultan was not examined by the plaintiff in thisj case in order to prove this allegation. All the D.Ws, were subjected to stringent and lengthy cross- examination but their evidence could not be shattered on this point.
30. The above evidence leaves no doubt in reaching th4 definite conclusion that the plaintiff was consuming th< gas in an illegal manner by using unfair means and ha also levelled vexatious allegations against th defendants for demanding 'Bhatta' which could not b [Vol.XXIlI Piastiscans (gvt.) Ltd. V. ICI Pakistan Ltd. C.C. 103 (Ch. Ljaz Ahmad, J.) \ . .
31. Substantiated by him. Since the plaintiff has approached the Court with unclean hands, he is not entitled to discretionary relief of declaration and injunction.
32. In this view of the matter, no finding is necessary on the rest of the Issues, and the suit is liable to be dismissed.
33. The upshot of the above discussion is that the,suit of the plaintiff is dismissed with costs. .