IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No. 29 of 2011.
Applicant: Haji Abdul Rasool Tunio through Mr. Akeel Ahmed Bhutto, advocate.
Respondents SDO HESCO WAPDA and others through Mr. Nisar Ahmed G. Abro, advocate.
Date of Hearing 18.12.2012.
J U D G M E N T .
NAIMTULLAH PHULPOTO, J- This Civil Revision Application under section 115, CPC is directed against the concurrent findings of the fact recorded by III-Senior Civil Judge, Larkana and III-Additional District Judge, Larkana dismissing First Class Suit No.79/2006 re: Haji Abdul Rasool versus SDO HESCO Operation and others filed for Declaration, settlement of accounts & perpetual injunction brought by applicants against the defendants/respondents.
Brief facts of the applicant’s case are that he is consumer of HESCO WAPDA under Meter Reference No.7522 00885100R (Old A/C No.04752200885106), Operation Sub-Division Empire Road Larkana for his Heller situated in village Fatehpur, taluka & District Larkana and 50 K.V Transformer has been installed there. It is stated that in the beginning plaintiff/applicant received correct bills and used to pay the same regularly. A bill for the month of 11/ 2000 amounting to Rs.5300/- was received by him along with other bills. He was shocked to see the bills and he approached the concerned SDO as well as Revenue Officer, Larkana-II. The applicant/plaintiff paid Rs.5300/- out of total Rs.64940/-. Plaintiff was promised that necessary correction in the bills would be made. In November 2001 supply of electricity of the plaintiff’s Heller was also illegally disconnected and plaintiff suffered financial loss and mental torture. The applicant/plaintiff made several complaints to the HESCO authorities and approached to the concerned authorities for correction of bill and settlement of accounts but he was kept on false hopes. Finding no other way the applicant/plaintiff approached to Superintending Engineer, HESCO Larkana Circle, Larkana-II, who forwarded his application to Executive Engineer, Larkana-II but the applicant was refused for correction of the bill. Cause of action arose to the applicant for filing of the suit firstly when unjustified bills were shown outstanding against the plaintiff, finally when respondents No.1 to 4 refused to make necessary correction in the bills and supply of the electricity for the Heller of the plaintiff was disconnected. Applicant/Plaintiff prayed for the Judgment and decree as under :
a) That this Honourable Court may be pleased to declare that wapda dues of Rs.53013/- approximately shown in bill of 11/2000 and the subsequent excessive bills and surcharges, etc in respect of B-I connection Reference No.752200885100 R(old A/C No.04752200885 106) Operation HESCO Sub Division Empire Road, Larkana-II allegedly outstanding against the plaintiff are illegal, unjustified and liable to be remitted/withdrawn by defendants.
b) That this Honourable Court may also be pleased to direct the defendants 1 to 4 cited above to settle the accounts and correct the bills since 11/2000 up-to-date in respect of electricity connection viz. Ref’nce NO.7522 00885100R HESCO sub-division Empire Road Larkana with plaintiff and also to recover the WAPDA dues, if fall due against plaintiff after such settlement/correction in easy monthly installments with payment of current monthly bill till final adjustment,
c) That this Honourable Court may also be pleased to issue Injunction against the defendants 1 to 4 restraining them from disconnecting the connection and removing the Transformer and also from recovering the alleged Wapda dues of Rs.64528/- regarding Ref’nce No.7522 00885100, Empire Road Larkana from Plaintiff except due course of law.
d) Costs of the suit may also be awarded to the plaintiff.
e) Any other relief as deemed fit and adequate may also be awarded to the plaintiff.
Notices were issued to the defendants/respondents. Written statement was filed in which allegations were denied. It is stated that applicant/plaintiff is consumer of HESCO Wapda, Larkana Circle and he runs Heller. It is also stated that the applicant/plaintiff was not regular in the payment of the electricity dues. It is stated that due to non payment of the bills, electricity was disconnected. It is further stated that the bills were correctly issued to the applicant/plaintiff. It was prayed for dismissal of the suit. Out of pleadings of parties issues were framed by Civil Court.
Both parties adduced evidence in support of their case. Learned IIIrd Senior Civil Judge after hearing both the parties dismissed the suit vide his judgment and decree dated 02.9.2009 & 03.9.2009 respectively. The said judgment and decree were upheld in Civil Appeal No.85/2009 by the learned IIIrd Additional District Judge, Larkana vide judgment dated 06.1.2011.
I have heard learned counsel for the parties and with their assistance gone through the depositions and judgments placed on record.
Learned Senior Civil Judge while deciding crucial issues recorded findings as under :
“…..The plaintiff has examined himself through attorney Muhammad Akram who has produced attorney power as Exh 37. He has deposed that he was regularly paying the electricity bill and last bill of October 2000 was also paid by him and there were no outstanding against him he has produced will as at Exh:38 duly paid, but in the month of November 2000 he received the bill of Rs.53013/- including arrearors and his line was disconnected, here further deposed that he has approached to the defendant No.3, who advised him to make part payment which was complaint by the plaintiff of Rs.35000/- were paid by him, thereafter the plaintiff many times approached to the defendants for adjustment and settlements of accounts with regard to the bill issued by them, but no fruitful result could come out, although he moved a complaint in writing for resolving such grievance, resultantly the plaintiff did not pay the remaining amount of bill, so his line was disconnected from 2001 and till September 2005 therefore he suffered a lot mentally as well as financially, subsequently filed the present suit. The Plaintiff has produced so many copies of said bills including the disputed bill of which part payment has been made by him. In this connection the defendants have denied the very version of the plaintiff and have examined a revenue officer as at Exh:45, who has disclosed that there were outstanding dues of Rs.75728/- against the plaintiff as per the revenue record of the Wapda authority and he has also produced a photo copy of account statement as at Exh:45-A, as far the photo copy of account statement is concerned, no any official from the counsel of the plaintiff has been raised during the chief examination of the defendant as well as by cross examination to him such documents is not admissible as per the section of Qanon-i-Shahadat 74 but the presumption from very statement as well as the disputed bill paid by the plaintiff is drawn that plaintiff have admitted the disputed amount/disputed bill issued by the defendant partly and it has further clarified from such statement of account therefore once facts admitted by the party can not be challenged in any competent court of law and it has clearly come on record that there were outstanding against the plaintiff by the consumption of electricity charges for which defendant issued the bill to the plaintiff and the plaintiff has miserably failed to establish and through registered sale deed issue, which are answered in negative.”
Learned IIIrd Additional District Judge came to the conclusion that amount shown in the disputed bill by way of outstanding regarding energy as utilized by the appellant/plaintiff by running Heller was deposited by him through installments without any protest. It showed that the appellant/plaintiff has waived his right and he had no cause of action by raising objection at subsequent stage. Further it has been rightly observed that objection regarding non admissibility of the attested copies of the bill was also considered by the trial Court. Two Courts below while recording finding of fact have neither misread the evidence or have ignored any material piece of evidence on record.
No other point worth consideration has been raised in support of his revision. Since concurrent findings of the fact on the face of the record are neither arbitrary nor fanciful or perverse. There is no scope for interference by this Court in exercise of the revisional jurisdiction which is essentially meant for correcting error of law committed by sub-ordinate Courts. Needless to mention such jurisdiction is restricted and narrower one. In this regard reference can be made to the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Haji Muhammad Din versus Malik Muhammad Abdullah PLD 1994 Supreme Court 291.
For the aforesaid facts and reasons I have come to the conclusion that there is no merit in this revision application which is accordingly dismissed.