2016 Y L R 1321
2016 Y L R 1321
[Sindh]
Before Shahnawaz Tariq, J
SHER MUHAMMAD through Legal Heirs and 9 others---Applicants
Versus
Messrs SUI SOUTHERN GAS COMPANY LTD.---Respondent
Civil Revision No.129 of 2012, decided on 10th March, 2015.
(a) Civil Procedure Code (V of 1908)---
----O.XVII, R.3----Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Dismissal of suit for non-appearance of plaintiff to produce evidence---Concurrent findings---Respondent, a Gas Company having installed new meter, issued bill of Rs. 2,39,979.77/- to petitioners (consumer) without any prior notice on allegations of tampering with previous meter and stealing of gas---Petitioners challenged said bill by filing suit for declaration and permanent injunction---Petitioners having filed their affidavits could not appear for his cross-examination on many dates of hearing, but had filed application for adjournment on ground of sickness---Trial Court dismissed the suit under O.XVII, R. 3, C.P.C. for continuous non-appearance of petitioners to produce evidence, and appellate court declined interference in said order of dismissal---Plea raised by petitioners was that impugned orders of courts below were bad both in law and on fact and their non-appearance was not deliberate, instead was due to unavoidable circumstances---Validity---Final disposal of suit by Trial Court was in accordance with the settled norms of justice as petitioners, with consent of other parties and after getting many opportunities, had been given final chance to lead evidence but they had failed to appear and give evidence---Overall conduct and demeanor of petitioners indicated that they had deliberately, willfully and malafidely prolonged the proceedings and failed to adduce their evidence despite numerous opportunities provided by Trial Court during period of two years and six months---Trial Court had no option but to decline the adjournment application along with dismissing the suit under O.XVII, R.3, C.P.C.---Petitioners failed to show any illegality or material irregularity in the impugned orders to cause interference in concurrent findings of courts below---High Court dismissed the revision petition being devoid of any substance.
Abdul Shakoor and others v. Province of Punjab and 4 others 2005 SCMR 1673 and Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067 rel.
(b) Civil Procedure Code (V of 1908)----
----O. XVII, R.3----Scope---Order XVII, R.3, C.P.C. empowers courts to decide case promptly if party directed by them fails to adduce evidence or bring any required material on record.
(c) Civil Procedure Code (V of 1908)---
----S.115---Revision---Scope--- Concurrent findings, interference with---Jurisdiction of High Court under S. 115, C.P.C. was narrower, and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread evidence or ignored any material piece of evidence or findings were perverse and reflected some jurisdictional error.
Liaquat Ali Hamid for Applicants.
Farmanullah Khan for Respondent.
JUDGMENT
SHAHNAWAZ TARIQ, J.---Through the captioned civil revision application, applicants have agitated order dated 30.04.2012, passed by learned appellate Court of III Additional District Judge, Karachi East, whereby civil appeal filed by applicants was dismissed and judgment dated 08.05.2010, passed in suit No.673 of 2007, passed by learned Trial Court was maintained.
2. The relevant facts narrated in instant revision application are that applicants' father namely Sher Muhammad had filed Suit No.673 of 2007 against respondent Gas company for declaration and permanent injunction. It is further averred that applicant is owner of Muslim Pakistani Hotel, situated at KPT plot No.103, Jiwanjee Street, Jackson Bazzar, Kemari. Applicant obtained Sui-gas connection for his said hotel vide meter No. 00138391, and was paying bills regularly. In the month of June, 1998, said meter was replaced by the officials of respondent without any notice and new meter bearing No.0004857, was installed and bill for the month of July, 1998 was issued which was paid. On 26.05.1999, respondent issued outstanding bill for Rs.2,39,97.77, w.e.f. July, 1996 to June, 1998, on the allegations of tempering the previous meter without issuing any notice. Applicant approached respondent for re-consideration of outstanding bill but of no avail, and applicant filed subject suit.
3. Respondent filed written statement and denied the averments of the plaint being false and also challenged the maintainability of the suit by raising legal pleas. It was further stated that applicant had suppressed true facts of tempering the gas meter and stealing of gas.
4. From the pleadings of the parties following issues were framed by learned trial Court:--
(i) Whether the suit is hit by principle of res-judicata?
(ii) Whether the claim of defendant's company for Rs.2,39,979.77 is illegal?
(iii) Whether the instant suit is maintainable?
(iv) Whether the plaintiff has tempered the gas meter No.00138391?
(v) Whether the plaintiff has complied with the provisions of contract for the supply of gas entered into between plaintiff and defendant company, If not to what effect?
(vi) Whether the Oil and Gas Regulatory Authority is not the competent forum to adjudicate upon the instant matter, If so, to what effect?
(vii) Whether plaintiff is not entitled for the relief claimed in the plaint?
(viii) What should the decree be?
5. After settlement of issues case was continuously adjourned for applicant's evidence but due to non-appearance of applicant suit was dismissed under Order XVII, Rule 3, C.P.C. Applicant preferred civil appeal against said judgment but said appeal was also declined vide the impugned order.
6. Learned counsel for applicant contended that impugned judgment dated 08.05.2010 and order dated 30.04.2012, passed by both the Courts below are bad in law as well as on facts, hence liable to set aside. He further contended that applicant filed his affidavit in evidence on 12.03.2010, but on 08.05.2010 his suit was dismissed though counsel for applicant had moved application for adjournment due to sickness of applicant. He further contended that learned trial Court as well as learned appellate Court did not consider judiciously the non-appearance of petitioner on 08.05.2010 which was not deliberate but due to unavoidable circumstances.
7. Learned counsel for respondent submitted that applicant learned trial Court framed issues on 17.11.2007 and case was repeatedly adjourned for evidence of applicant, but applicants failed to adduce their evidence for the period of two years and despite filing of affidavit in evidence by applicant Gul Muhammad, he did not appear before trial Court for his cross-examination though final chances were given in this regard. He further contended that applicants deliberately delayed the trial and even by consent of applicant case was adjourned for 08.05.2010, but he again did not appear, therefore, trial Court had rightly dismissed the suit.
8. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties reflect that applicants are running a hotel and filed Suit No.673 of 2007 in the month of April, 2007 against respondent Gas company challenging the bill dated 27.01.2007, for outstanding dues of Rs.2,39,979.77. Thereafter issues were framed by learned trial Court on 15.11.2007 and case was repeatedly adjourned for applicant's evidence on one or another pretext. On 16.08.2008, one Khan Muhammad moved an application under Order XXII Rule 3, C.P.C. to implead the legal heirs of applicant, as applicant had expired, which was allowed and present applicants were directed to lead evidence. On 24.10.2009, applicant was present in trial Court but he refused to come in witness box as his counsel was not present. On 11.01.2010, last chance was given to applicant to lead the evidence on 23.01.2010, but said date applicant was called absent. Even then applicants failed to adduce their evidence and applicant Gul Muhammad filed his affidavit in evidence on 12.03.2010, but he did not appear before trial Court for his cross-examination and case was adjourned to 23.03.2010 but on said date counsel for applicant moved application for adjournment and case was adjourned to 14.04.2010 but again applicant failed to lead his evidence. Thus trial Court adjourned the case as a final chance and by consent of applicant case was fixed on 08.05.2010, but on said date again applicant did not appear before the trial Court and counsel for applicant moved adjournment application that applicant was sick and no proof was furnished along with said application. Perusal of the case dairies of subject suit also reflects that on series of dates of hearing counsel for applicant sought adjournments on one or another pretext, therefore, learned trial Court in view of final chance rejected application for adjournment and simultaneously dismissed the suit under Order XVII Rule 3 C.P.C.
9. It would be advantageous to refer Order XVII, Rule 3, C.P.C. which is reproduced as under:---
"3. Court may proceed notwithstanding either party fails to produce evidence, etc.--where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. "
From bare perusal of the provisions referred supra, it is crystal clear that Order XVII, Rule 3, C.P.C., empowers the Court to decide the case promptly if party directed by the Court failed to adduce the evidence or bring any material on record. Undeniably, by consent of both the parties final chance to produce evidence was given to applicants, but they failed to appear before the trial Court to lead evidence, therefore, final disposal of the suit by trial Court was in accordance with the settled norms of justice.
10. In case of Abdul Shakoor and others v. Province of Punjab and 4 others (2005 SCMR 1673), the honourable Supreme Court has observed as under:--
"Heard Ch. M Ashraf, learned Advocate Supreme Court on behalf of petitioners and Mr. Abdul Wahid Chaudhry, learned Advocate Supreme Court for respondents and perused the chequered history of the case vigilantly and examined the record with the assistance of learned counsel for the parties. It is worth-mentioning that after framing of issues petitioners/ plaintiffs were asked to lead evidence but in spite of various opportunities provided on 7.6.1980, 4.11.1980, 17.11.1980, 24.12.1980, 18.1.1981, 10.2.1981, 30.3.1981, 13.4.1981, 12.9.1981, 2.1.1982, 3.5.1982, 28.9.1982, 2.10.1982 and 23.1.1983, needful could not be done and ultimately the suit of petitioners/plaintiff was dismissed in view of the provisions as contemplated in Order XVII, Rule 3, C.P.C. which was affirmed by learned District Judge. It is reflective from record that in spite of numerous opportunities given on various occasions the petitioners/ plaintiff failed to produce any evidence to substantiate their claim and thus, the order passed by learned trial Court under Order XVII Rule 3, C.P.C. does not warrant any interference."
11. Likewise, in case of Munawar Hussain v. Additional District Judge, Jhelum and 3 others (1998 SCMR 1067), the honourable Supreme Court has observed as follows:--
"We have carefully perused the record and considered above arguments. The entire record speaks for itself Admittedly, petitioner after filing eviction application on 10.6.1992, despite several opportunities neither furnished the list of witnesses nor was able to produce evidence to substantiate his stand till 20.7.1993, when Trial Court directed dismissal of the eviction application by closing the evidence of his side. Bare perusal of order sheets indicates that even petitioner or his authorized attorney had not appeared before the Court on any of the dates of hearing. Record speaks volumes about petitioner's extraordinary negligence in pursuing the case. It was obligatory for the petitioner to have taken effective steps either for producing or summoning the evidence to support his claim of being landlord of the house in occupation of the respondents. Trial Court had shown sufficient indulgence and there does not appear any impropriety or defect for ultimately closing side of the petitioner on account of his consistent failure to produce evidence despite seeking repeated adjournments. The trial Court could not be deemed at the mercy of petitioner or totally helpless to await till petitioner chooses to comply with repeated direction of producing evidence. Thus, conclusion drawn by the High Court and two forums below in rejection of petitioner for the eviction of respondents filed by the petitioner are substantial, sufficiently convincing and based on sound reasonings. There is hardly any ground which may warrant interference in the impugned judgments."
12. It is significant to mention that the overall conduct and demeanor of applicants undoubtedly indicate that they deliberately, wilfully and malafidely prolonged the proceedings and failed to adduce their evidence despite numerous opportunities provided by the trial Court during the period of about 2 years and 6 months, therefore, learned trial Court having no option to decline the adjournment application moved on behalf of applicant and simultaneously dismissed the suit under Order XVII, Rule 3, C.P.C. Learned counsel for applicants has failed to show any illegality or material irregularity committed by learned trial Court as well as learned appellate Court to cause interference in the concurrent findings passed by both the Courts below. The honourable Supreme Court has observed in plethora of judgments that jurisdiction of the High Court under S.115, C.P.C., was narrower and concurrent findings of fact could not be disturbed in revisional jurisdiction unless Courts below while recording findings of fact either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdiction error.
13. Consequently, in view of the above mentioned facts, circumstances and case law, I am clear in my mind that applicants have failed to show any good ground for consideration. Resultantly, the concurrent findings passed by both the Courts below do not call for any interference, hence maintained and instant revision application being devoid of any legal substance stands dismissed.
SL/S-29/Sindh Petition dismissed.
[Sindh]
Before Shahnawaz Tariq, J
SHER MUHAMMAD through Legal Heirs and 9 others---Applicants
Versus
Messrs SUI SOUTHERN GAS COMPANY LTD.---Respondent
Civil Revision No.129 of 2012, decided on 10th March, 2015.
(a) Civil Procedure Code (V of 1908)---
----O.XVII, R.3----Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Dismissal of suit for non-appearance of plaintiff to produce evidence---Concurrent findings---Respondent, a Gas Company having installed new meter, issued bill of Rs. 2,39,979.77/- to petitioners (consumer) without any prior notice on allegations of tampering with previous meter and stealing of gas---Petitioners challenged said bill by filing suit for declaration and permanent injunction---Petitioners having filed their affidavits could not appear for his cross-examination on many dates of hearing, but had filed application for adjournment on ground of sickness---Trial Court dismissed the suit under O.XVII, R. 3, C.P.C. for continuous non-appearance of petitioners to produce evidence, and appellate court declined interference in said order of dismissal---Plea raised by petitioners was that impugned orders of courts below were bad both in law and on fact and their non-appearance was not deliberate, instead was due to unavoidable circumstances---Validity---Final disposal of suit by Trial Court was in accordance with the settled norms of justice as petitioners, with consent of other parties and after getting many opportunities, had been given final chance to lead evidence but they had failed to appear and give evidence---Overall conduct and demeanor of petitioners indicated that they had deliberately, willfully and malafidely prolonged the proceedings and failed to adduce their evidence despite numerous opportunities provided by Trial Court during period of two years and six months---Trial Court had no option but to decline the adjournment application along with dismissing the suit under O.XVII, R.3, C.P.C.---Petitioners failed to show any illegality or material irregularity in the impugned orders to cause interference in concurrent findings of courts below---High Court dismissed the revision petition being devoid of any substance.
Abdul Shakoor and others v. Province of Punjab and 4 others 2005 SCMR 1673 and Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067 rel.
(b) Civil Procedure Code (V of 1908)----
----O. XVII, R.3----Scope---Order XVII, R.3, C.P.C. empowers courts to decide case promptly if party directed by them fails to adduce evidence or bring any required material on record.
(c) Civil Procedure Code (V of 1908)---
----S.115---Revision---Scope--- Concurrent findings, interference with---Jurisdiction of High Court under S. 115, C.P.C. was narrower, and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread evidence or ignored any material piece of evidence or findings were perverse and reflected some jurisdictional error.
Liaquat Ali Hamid for Applicants.
Farmanullah Khan for Respondent.
JUDGMENT
SHAHNAWAZ TARIQ, J.---Through the captioned civil revision application, applicants have agitated order dated 30.04.2012, passed by learned appellate Court of III Additional District Judge, Karachi East, whereby civil appeal filed by applicants was dismissed and judgment dated 08.05.2010, passed in suit No.673 of 2007, passed by learned Trial Court was maintained.
2. The relevant facts narrated in instant revision application are that applicants' father namely Sher Muhammad had filed Suit No.673 of 2007 against respondent Gas company for declaration and permanent injunction. It is further averred that applicant is owner of Muslim Pakistani Hotel, situated at KPT plot No.103, Jiwanjee Street, Jackson Bazzar, Kemari. Applicant obtained Sui-gas connection for his said hotel vide meter No. 00138391, and was paying bills regularly. In the month of June, 1998, said meter was replaced by the officials of respondent without any notice and new meter bearing No.0004857, was installed and bill for the month of July, 1998 was issued which was paid. On 26.05.1999, respondent issued outstanding bill for Rs.2,39,97.77, w.e.f. July, 1996 to June, 1998, on the allegations of tempering the previous meter without issuing any notice. Applicant approached respondent for re-consideration of outstanding bill but of no avail, and applicant filed subject suit.
3. Respondent filed written statement and denied the averments of the plaint being false and also challenged the maintainability of the suit by raising legal pleas. It was further stated that applicant had suppressed true facts of tempering the gas meter and stealing of gas.
4. From the pleadings of the parties following issues were framed by learned trial Court:--
(i) Whether the suit is hit by principle of res-judicata?
(ii) Whether the claim of defendant's company for Rs.2,39,979.77 is illegal?
(iii) Whether the instant suit is maintainable?
(iv) Whether the plaintiff has tempered the gas meter No.00138391?
(v) Whether the plaintiff has complied with the provisions of contract for the supply of gas entered into between plaintiff and defendant company, If not to what effect?
(vi) Whether the Oil and Gas Regulatory Authority is not the competent forum to adjudicate upon the instant matter, If so, to what effect?
(vii) Whether plaintiff is not entitled for the relief claimed in the plaint?
(viii) What should the decree be?
5. After settlement of issues case was continuously adjourned for applicant's evidence but due to non-appearance of applicant suit was dismissed under Order XVII, Rule 3, C.P.C. Applicant preferred civil appeal against said judgment but said appeal was also declined vide the impugned order.
6. Learned counsel for applicant contended that impugned judgment dated 08.05.2010 and order dated 30.04.2012, passed by both the Courts below are bad in law as well as on facts, hence liable to set aside. He further contended that applicant filed his affidavit in evidence on 12.03.2010, but on 08.05.2010 his suit was dismissed though counsel for applicant had moved application for adjournment due to sickness of applicant. He further contended that learned trial Court as well as learned appellate Court did not consider judiciously the non-appearance of petitioner on 08.05.2010 which was not deliberate but due to unavoidable circumstances.
7. Learned counsel for respondent submitted that applicant learned trial Court framed issues on 17.11.2007 and case was repeatedly adjourned for evidence of applicant, but applicants failed to adduce their evidence for the period of two years and despite filing of affidavit in evidence by applicant Gul Muhammad, he did not appear before trial Court for his cross-examination though final chances were given in this regard. He further contended that applicants deliberately delayed the trial and even by consent of applicant case was adjourned for 08.05.2010, but he again did not appear, therefore, trial Court had rightly dismissed the suit.
8. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties reflect that applicants are running a hotel and filed Suit No.673 of 2007 in the month of April, 2007 against respondent Gas company challenging the bill dated 27.01.2007, for outstanding dues of Rs.2,39,979.77. Thereafter issues were framed by learned trial Court on 15.11.2007 and case was repeatedly adjourned for applicant's evidence on one or another pretext. On 16.08.2008, one Khan Muhammad moved an application under Order XXII Rule 3, C.P.C. to implead the legal heirs of applicant, as applicant had expired, which was allowed and present applicants were directed to lead evidence. On 24.10.2009, applicant was present in trial Court but he refused to come in witness box as his counsel was not present. On 11.01.2010, last chance was given to applicant to lead the evidence on 23.01.2010, but said date applicant was called absent. Even then applicants failed to adduce their evidence and applicant Gul Muhammad filed his affidavit in evidence on 12.03.2010, but he did not appear before trial Court for his cross-examination and case was adjourned to 23.03.2010 but on said date counsel for applicant moved application for adjournment and case was adjourned to 14.04.2010 but again applicant failed to lead his evidence. Thus trial Court adjourned the case as a final chance and by consent of applicant case was fixed on 08.05.2010, but on said date again applicant did not appear before the trial Court and counsel for applicant moved adjournment application that applicant was sick and no proof was furnished along with said application. Perusal of the case dairies of subject suit also reflects that on series of dates of hearing counsel for applicant sought adjournments on one or another pretext, therefore, learned trial Court in view of final chance rejected application for adjournment and simultaneously dismissed the suit under Order XVII Rule 3 C.P.C.
9. It would be advantageous to refer Order XVII, Rule 3, C.P.C. which is reproduced as under:---
"3. Court may proceed notwithstanding either party fails to produce evidence, etc.--where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. "
From bare perusal of the provisions referred supra, it is crystal clear that Order XVII, Rule 3, C.P.C., empowers the Court to decide the case promptly if party directed by the Court failed to adduce the evidence or bring any material on record. Undeniably, by consent of both the parties final chance to produce evidence was given to applicants, but they failed to appear before the trial Court to lead evidence, therefore, final disposal of the suit by trial Court was in accordance with the settled norms of justice.
10. In case of Abdul Shakoor and others v. Province of Punjab and 4 others (2005 SCMR 1673), the honourable Supreme Court has observed as under:--
"Heard Ch. M Ashraf, learned Advocate Supreme Court on behalf of petitioners and Mr. Abdul Wahid Chaudhry, learned Advocate Supreme Court for respondents and perused the chequered history of the case vigilantly and examined the record with the assistance of learned counsel for the parties. It is worth-mentioning that after framing of issues petitioners/ plaintiffs were asked to lead evidence but in spite of various opportunities provided on 7.6.1980, 4.11.1980, 17.11.1980, 24.12.1980, 18.1.1981, 10.2.1981, 30.3.1981, 13.4.1981, 12.9.1981, 2.1.1982, 3.5.1982, 28.9.1982, 2.10.1982 and 23.1.1983, needful could not be done and ultimately the suit of petitioners/plaintiff was dismissed in view of the provisions as contemplated in Order XVII, Rule 3, C.P.C. which was affirmed by learned District Judge. It is reflective from record that in spite of numerous opportunities given on various occasions the petitioners/ plaintiff failed to produce any evidence to substantiate their claim and thus, the order passed by learned trial Court under Order XVII Rule 3, C.P.C. does not warrant any interference."
11. Likewise, in case of Munawar Hussain v. Additional District Judge, Jhelum and 3 others (1998 SCMR 1067), the honourable Supreme Court has observed as follows:--
"We have carefully perused the record and considered above arguments. The entire record speaks for itself Admittedly, petitioner after filing eviction application on 10.6.1992, despite several opportunities neither furnished the list of witnesses nor was able to produce evidence to substantiate his stand till 20.7.1993, when Trial Court directed dismissal of the eviction application by closing the evidence of his side. Bare perusal of order sheets indicates that even petitioner or his authorized attorney had not appeared before the Court on any of the dates of hearing. Record speaks volumes about petitioner's extraordinary negligence in pursuing the case. It was obligatory for the petitioner to have taken effective steps either for producing or summoning the evidence to support his claim of being landlord of the house in occupation of the respondents. Trial Court had shown sufficient indulgence and there does not appear any impropriety or defect for ultimately closing side of the petitioner on account of his consistent failure to produce evidence despite seeking repeated adjournments. The trial Court could not be deemed at the mercy of petitioner or totally helpless to await till petitioner chooses to comply with repeated direction of producing evidence. Thus, conclusion drawn by the High Court and two forums below in rejection of petitioner for the eviction of respondents filed by the petitioner are substantial, sufficiently convincing and based on sound reasonings. There is hardly any ground which may warrant interference in the impugned judgments."
12. It is significant to mention that the overall conduct and demeanor of applicants undoubtedly indicate that they deliberately, wilfully and malafidely prolonged the proceedings and failed to adduce their evidence despite numerous opportunities provided by the trial Court during the period of about 2 years and 6 months, therefore, learned trial Court having no option to decline the adjournment application moved on behalf of applicant and simultaneously dismissed the suit under Order XVII, Rule 3, C.P.C. Learned counsel for applicants has failed to show any illegality or material irregularity committed by learned trial Court as well as learned appellate Court to cause interference in the concurrent findings passed by both the Courts below. The honourable Supreme Court has observed in plethora of judgments that jurisdiction of the High Court under S.115, C.P.C., was narrower and concurrent findings of fact could not be disturbed in revisional jurisdiction unless Courts below while recording findings of fact either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdiction error.
13. Consequently, in view of the above mentioned facts, circumstances and case law, I am clear in my mind that applicants have failed to show any good ground for consideration. Resultantly, the concurrent findings passed by both the Courts below do not call for any interference, hence maintained and instant revision application being devoid of any legal substance stands dismissed.
SL/S-29/Sindh Petition dismissed.
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