' RAJA MUHAMMAD SABIR, J.--- This appeal under section 3 of the Law Reforms Ordinance, 1972 is directed against the order of learned Single Judge in Chamber dated 22-5-2002 whereby he dismissed the appellant's Writ Petition No,3197 of 2002 seeking a direction to the respondents to act in accordance with order dated 31-5-2D01 of the Supreme Court of Pakistan passed in Civil Appeal No,1647 of 1997, declare all other proceedings being conducted by them beyond the scope of aforesaid order and in the meantime respondent No,1 be restrained from further proceeding in the matter.
2 brief facts of the case are that appellant-mill was raided by a committee constituted by. WAPDA Authorities on 23-9-1997 consisting of Muhammad Ali XEN, Muhammad Ali Ghuman, S.E., Ahmad Din, Deputy Director Technical and Talib Hussain Malik XEN. Electricity of the mill was disconnected and the detection bill in the sum of Rs,3,60,77,676 was issued. A criminal case under section 39-A of the Electricity Act, 1910 for theft of electricity vide F.I.R. No,254 of 1997 was got registered against the management of the mill on 24-9-1997. Appellant challenged the detection bill in Writ Petitions Nos.7555 of 1997 and 7835.Of 1997, the first one was withdrawn and the second was disposed of with certain directions to appear before the Electric Inspector. Electric Inspector dismissed the appellant's application holding that he has no jurisdiction in the matter as the dispute relates to theft of electricity and under section 26-A of the Electricity Act he was not competent to resolve said issue. Appellant thereafter filed Writ Petition No,7835 of 1997 which was dismissed by this Court on 9-10-1997 and same was further challenged in the Honourable Supreme Court. The appeal was disposed of in accordance to the agreement of the parties in the following terms:- "During arguments it was agreed between the counsel for the parties that the appellants would be afforded opportunity to join the process of checking/examination of the electric meters and other relevant apparatus and then the matter will be resolved in accordance with law.
' Consequently, we dispose of these appeals in the above terms and direct the parties to appear before the Chief Executive concerned on 8-6-2001 who shall determine the dispute in accordance with law after associating both the sides with the process of checking the meter and other disputed apparatus and also giving opportunity of hearing to both the sides. Any party feeling aggrieved from the decision made by the Chief Executive, can redress his grievance in accordance with law."
' Pursuant to the order of the Honourable Supreme Court the proceedings remained pending adjudication with the Chief Executive, MEPCO for a considerable long period. Appellant was associated in the proceedings who submitted written comments and ultimately case was decided by the Chief Executive, MEPCO on 29-4-2002.
3. Precise grievance of the appellant agitated in the writ petition filed on 29-4-2602 and fixed before the Court' on 30-4-2002 was that respondent No,1 was not proceeding in the matter in accordance with the direction contained in the order of the Honourable Supreme Court dated 31- 5-2001 and prayed as under:--
(i) Respondents be directed to act in accordance with the order dated 31-5-2001 of the Supreme Court of Pakistan passed in Civil Appeal No,1647 of 1997.
(ii) Declare all other proceedings being conducted by the respondents beyond the scope of the order dated 31-5-2001 without lawful authority and of no legal effect.
(iii) In the meantime an interim direction may kindly be made restraining respondent No,1 not to proceed further in the matter."
4. Appellant's writ petition was fixed in Court on 30-4-2002 and a restraint order directing the respondent No,1 not to pass any final order was made on the said date but according to appellant respondent No,1 in violation of the restraint order decided the case subsequently but put the date as 29-4-2002 to frustrate the order of this Court dated 30-4-2002. Appellant contends that no order was passed till 30-4-2002. Reference is made to the postal envelope to substantiate the contention that the envelope contained the seal-dated 3-5-2002 meaning thereby that the order was dispatched from the office of respondent No,3 on 3-5-2002 and not on 29-4-2002. It is further asserted with reference to letter dated 4-6-2002 addressed to the Manager of the appellant-mill that the time for submission of the requisite comments by the appellant was extended up to 30-4- 2002, therefore till 30-4-2002 no decision could have been given. Appellant added that in terms of the order of the Honourable Supreme Court respondents were required to associate the appellant for checking up of the meter and other apparatus but no one from the appellant's side was associated, therefore, the proceedings held and conducted are in violation of the order of the apex Court. In the end it was submitted that the Electric Inspector or Board of Elector Inspectors be deputed at their cost to examine the disputed meter.
5. The case of the respondents is that the theft is evident from registration of a criminal case F.I.R.
No,254 of 1997 and dispute is not covered under subsection (6) of section 26 of the Electricity Act 1910 and it falls under the provisions of section 26-A of the said Act and the reference to the Electric Inspector is neither necessary nor required in the instant case. They further asserted that the Honourable Supreme Court specifically referred the parties to the Chief Executive, MEPCO. He was to hear both the parties i,e,, appellant and the WAPDA Authorities and render the decision in accordance with law and, as such, the question of referring the matter or involving the Electric Inspector was unwarranted. Respondents specifically Executive, MEPCO on 29-4-2002 decided the case in accordance to direction of the Honourable Supreme Court. Vide letter dated 16-4-2002 Manager of the mill was intimated that time for submission of comments has been extended to 30-4-2002 but the comments having been received on 27-4-2002 without any further delay the case was decided on 29-4-2002. The meter in question was examined on the direction of Chief Executive, MEPCO in presence of the parties particularly Sardar Ali Shah, Farid Ahmad Sheikh and Muhammad Iqbal from the appellant's side on 12-12-2001 and 13-12-2001. He also submitted that the case is covered under section 26-A of the Electricity Act and it is the only functionaries of the licensee i,e,, the respondents who were entitled to examine the meter/apparatus, therefore, the appellant's request for reference to the Electric Inspector is not only illegal but is also unacceptable to the respondents. After hearing the arguments of the parties at length learned Single Judge dismissed the petition mainly on the ground that the prayer of the appellant in the writ petition could not be granted as the case had already been decided on 29-4-2002 and the writ petition came up for hearing before the Court on 30-4-2002.
6. The appellant's application (C.M. No,868 of 2002) seeking amendment in the writ petition for the purposes of challenging the order dated 29-4-2002 was also dismissed on the strength of the Full Bench judgment of this Court reported in PLD 1995 Lahore 56 holding that the petitioner may approach the Civil Court to challenge the aforesaid order. He further observed that the case is not covered by section 26(6) of the Electricity Act and falls within the purview of section 26-A of the Electricity Act. Appellant aggrieved against the dismissal of their writ petition have instituted the instant appeal.
7. Raja Muhammad Akram learned counsel for the appellant submits that the Chief Executive, MEPCO has not passed order on 29-4-2002. The date has been forged to avoid the consequences of the restraint order passed by the learned Single Judge in Chamber on 30-4-2002. He submits that the post office seal dated 3-5-2002 clearly shows that the order was passed some time subsequent to 30-4-2002 in violation of the order of the High Court dated 30-4-2002. It is also violative of direction of the Honourable Supreme Court of Pakistan dated' 31-5-2001. He further submits that Civil Miscellaneous No,868 of 2002 was erroneously dismissed. Appellant came to know about said the order of Chief Executive, MEPCO on 4-5-2002 and an application for amendment in the writ petition was submitted on 6-5-2002 which was unlawfully declined. He has lastly argued that the dispute between the parties falls within the purview of section 26(6) of the Electricity Act and only Electric Inspector is competent to resolve it.
8. Malik Muhammad Qasim Khan, Assistant Advocate-General, counsel for respondents on the other hand submits that the Chief Executive, MEPCO decided the case on 29-4-2002 in accordance to the. Order of Honourable Supreme Court dated 31-5-2001. He has substantiated the arguments on the strength of the original record produced before us and the order conveyed through fax. He further submits that the case is covered by section 26-A of the Electricity Act, 1910 and referred Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 in support of his contention.
9. Heard. Record perused. On 23-5-2002 we wanted to hear the respondents at limine stage and notice was issued to them for 18-6-2002 and the order dated 29-4-2002 of respondent No,1 was suspended subject to furnishing of bank guarantee by the appellant of the disputed amount of Rs,3,10,77,676 within a fortnight and the claim of the respondents with regard to the other amount was ordered to be considered in the presence of respondents. The matter could not be taken up to the aforesaid date. However, finally the case was argued by both the sides on 9-7-2002 and the judgment was postponed for today. The pivotal question involved in the appeal is whether Chief Executive, MEPCO decided the case on 29-4-2002 or on any subsequent date and back dated it for 29-4-2002. The writ petition was filed on 29-4-2002 and fixed before the Court on 30-4-2002. The learned Single Judge in Chamber directed that meanwhile no final order shall be passed while directing respondent No,3 to enter appearance with record and comments on 21-5-2002 in the main petition. If the proceedings were pending on 30th of April, 2002 the final order could not be passed in view of the restraint order passed by the learned Single Judge in Chamber on 30-4- 2002. In order to ascertain the seriously con-tested contentions of the parties on the issue of date of passing of the order by Chief Executive, MEPCO the original record was produced by the respondents before us. Chief Executive, MEPCO has put his signatures. And date at the end of order with the same ink. There is no tampering with the record or the date i,e,, 29th of April, 2002. It is also evident from the receipt of fax dated 29-4-2002 at 5-29 p.m. Dispatched to Fax No,061-539509. The order was faxed to the fax number of the mill. The fax number of the mill is not disputed by the appellant meaning thereby that the order was received through fax by the appellant on 29-4- 2002. The original receipts have also been shown to us by the respondents during hearing of the arguments. Moreover Chief Executive, MEPCO is an independent responsible serving Brigadier of Pakistan Army and is not expected to tamper with the record to favour any party. The sealed envelope under the direction of Chief Executive was sent through Abdul Hameed Steno' Grade-II through WAPDA Vehicle No,MNT-5605 driven by Gulsher driver who reached at the gate of Colony, Textile Mill, Islamabad. They were stopped at the gate by the staff of CTM. When they informed that Chief Executive, MEPCO office sealed envelope is to be delivered to concerned officer, they stopped him, through telephone got the order from the superior officers who directed them not to receive any letter, therefore, the staff of the Colony Textile Mill told them that they will not permit any body to enter the gate. The said envelope was brought back and a report was submitted to the Chief Executive who ordered to the DD Legal MEPCO on same date i,e,, 29-4-2002 to fax the decision and also send through post, consequently the order was faxed on the number of the mill. The aforesaid documents produced before us clearly indicate that Chief Executive, MEPCO decided the case on 29-4-2002. The denial of the appellant of the aforesaid date of decision is baseless. We are clearly of the view that the matter was decided by the Chief Executive, MEPCO on 29-4-2002 after he received the comments of the mill on 27-4-2002. The mere fact that the appellant was given time for submission of the comments till 30-4-2002 does not mean that case could not be decided on 29-4-2002. Since the comments had been received on 27-4-2002, the case was mature for decision and accordingly decided on 29-4-2002. Respondent No,1 after having received the comments was competent to decide the matter as the appellant was already associated with the checking of meter and apparatus on 12-12-2001 and 13-12-2001. Since the case had already been decided by the respondent No,1 the direction sought for in the writ petition could not be issued.
10. Appellant's contention regarding dismissal of his application for amendment by the learned Single Judge has no force . The order dated 29-4-2002 was faxed to the mill on the same day, appellant instituted the writ petition on 29-4-2002 and was fixed in the Court on 30-4-2002. These facts indicate that appellant was aware of the order of the Chief Executive, MEPCO and same could be challenged before appropriate forum in independent proceedings. It is settled law that amendment in pleading is only permissible when same does not change character of original petition. The Honorable Supreme Court in the case of A.R. Niazi, Advocate and others v. Pakistan and others PLD 1968 SC 119 has observed that an amendment sought being contradictory of basic position adopted in the writ petition was rightly refused by the High Court. In the writ petition a direction was sought for restraining the respondents from proceeding with the case and in the amendment sought for the order dated 29-4-2002 was sought to be challenged. This could only be done through independent proceedings as prayer in the writ petition and the application for amendment were contrary to each other changing the nature of the proceedings, as such not permissible under the law. The amendment was rightly refused.
11. So far as the validity of the order of respondent No,1 dated 29-4-2002 and increase of liability of appellant from Rs,3,60,77,676 to Rs,12,23,30,881 concerned, same cannot be examined in this appeal. The afore-referred order was not under challenge out of which the instant appeal has arisen. In these circumstances we need not dilate upon the vires of the afore-referred order.
Appellant could challenge the aforesaid order through independent proceedings before appropriate forum in terms of the order of Honourable Supreme Court dated 31-5-2001. The observation made in relation to the merits of aforesaid order by the learned Single Judge in Chamber with reference to disposal of the application for amendment of the appellant cannot be deemed to be the decision on merits of aforesaid order.
12. For the reasons stated above the appeal has no merit and is dismissed with no order as to costs.