2024 CLS

Other citations: 2022 LHC 6389 = 2024 CLC 164

[Lahore High Court]

Before Shahid Jamil Khan, J

Sui Northern Gas Pipe Lines Limited and others—Appellants

versus

Farman Ali and others—Respondents

RFA No. 51934 of 2022, decided on 7^th September, 2022.

HEADNOTES

(a)   Gas (Theft Control & Recovery) Act (XI of 2016) —

— Ss. 13 & 5(3) — Pre-requisites for admission of appeal — Scope — The provisions of S. 13 of the Gas (Theft Control & Recovery) Act, 2016 are special to override the general provisions, conferring jurisdiction of appeal to High Court — Rule 11 of Order XLI of CPC envisages dismissal of appeal, without sending notice to lower court, however, the special provisions under S. 13 are more stringent, as assumption of jurisdiction is stipulated with a reasoned order for admission of appeal and that too, only to the extent of admitted ground of appeal, because phrase “in part or in whole” narrows the scope of appeal further — Since, special procedure for admission of appeal is provided in S. 13 of the Gas (Theft Control & Recovery) Act, 2016, therefore, under its S. 5(3) general provision under CPC, contrary to special procedure for admission of appeal shall not be applicable. [Para. No. 3]

(b)   Evidence —

Nadeem Butt, Advocate for appellants.

Nemo for respondents.

Date of hearing: 7^th September, 2022.

JUDGMENT

Shahid Jamil Khan, J:—This is Regular First Appeal filed under Section 13 of the Gas (Theft Control & Recovery) Act, 2016 (“Act of 2016”).

To examine the scope of appellate jurisdiction subsection (3) of Section 13 is reproduced:-

“13. Appeal. (1) ….

(2) ….

(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant:

[emphasis supplied]

2.           The statue conferring appellate jurisdiction requires that the appeal should be admitted for regular hearing (either in part or in whole) through a reasoned order. To fulfill the statutory requirement under the Section 13(3), learned counsel for the appellants (Sui Northern Gas Pipe Lines Limited) was confronted to show any ground for admission.

He has apprised that connection of respondents was treated as commercial and tariff was applied accordingly. Respondents disputed charging of gas consumed under commercial tariff, through suit before Gas Utility Court Lahore, which was decreed against the appellant company. The findings by Trial Court in this regard are read from paragraph No.6. Relevant part is reproduced hereunder:-

“6. …. Admittedly, no relevant person to prove the issuance of produced MIR was produced or examined by defendants. Mere production of the report cannot be assumed as proved legally. It is to be noted with great concern that no such financial liability can be imposed against the consumer by supplier without affording him the opportunity to join the proceedings for clarity and satisfaction qua its authenticity. Hidden charges under the cave of adjustment cannot be imposed against the consumer by the company in ambiguous circumstances without any justified proof. Worth mention to observe that produced witness by defendants in evidence before the court was found not conversant with the instant dispute. Moreover, nothing is found available on record in shape of any document being produced by defendants to establish the maximum flowing pressure being used by consumer in commercial terms. No such record was produced in evidence by defendants to establish that how much gas pressure was being consumed by consumer connected with the gas line and how much pressure of gas consumption was being pilferage by the plaintiff by installing direct legal connection. There is nothing on record of evidence to establish that how much volume gas was being utilized by plaintiff/consumer through unauthorized means by making theft of gas. …”

[emphasis supplied]

Learned counsel is confronted to show any proof presented before the Trial Court from where it can be established that domestic meter was being used for commercial purpose and that Sui Gas was stolen, to justify the detection bill. He has read Exhibits, attach with the appeal, to support the ground that evidence was not properly appreciated by the Trial Court. It is argued that difference between consumption of Sui Gas, in various months, and amount of bill reflects that purpose of connection was misused. Confronted that only excessive consumption amounting to bill Rs.17,092/- for the month of September 2011 is not a conclusive proof to establish that connection was being used for commercial purpose. Despite effort, he could not show any independent evidence to establish the assertion by the appellant supplier company. Ex-D15 is a report by an official that connection was being used for the commercial purpose and for running of a generator. Mere report is not conclusive unless the allegation is supported with other evidence after inquiry into the matter. The Trial Court held that witnesses produced by the appellant were not found conversant with the dispute. Even the person, who prepared the MIR, was not produced as witness for examination and cross-examination.

Perusal of the impugned judgment shows that evidence produced by the appellant company, to establish unauthorized commercial use of gas and its theft was carefully examined by Trial Court and reasons for inadmissibility of the evidence are found cogent and pragmatic. No ground or reason for admission of appeal, in part or in whole, is made out.

3.           The provisions of Section 13 of the Act of 2016 are special to override the general provisions, conferring jurisdiction of appeal to this Court. Rule 11 of Order XLI of CPC envisages dismissal of appeal, without sending notice to lower court, however, the special provisions under Section 13 are more stringent, as assumption of jurisdiction is stipulated with a reasoned order for admission of appeal and that too, only to the extent of admitted ground of appeal, because phrase “in part or in whole” narrows the scope of appeal further. Since, special procedure for admission of appeal is provided in Section 13 of the Act of 2016, therefore, under its Section 5(3) general provision under CPC, contrary to special procedure for admission of appeal shall not be applicable.

4.           In absence of any reason for admission of this appeal and in presence of well-reasoned findings by the Trial Court, no ground for interference is made out, therefore, this appeal is dismissed in limine.

Appeal dismissed