WATER AND POWER DEVELOPMENT AUTHORITY Versus MANZOOR AHMAD

ORDER

This revision petition is directed against the judgments and decrees passed by the learned Additional District Judge‑l1, Pakpattan Sharif, dated 20‑7‑1987 by which he dismissed the appeal against the judgment and decree, dated 22‑6‑1986 passed by the learned trial Court by which the suit filed by the respondent was decreed.

2. The respondent/ plaintiff got electric connection under Account No. 1079/1), for his Tubewell. The estimated cost of Tubewell connection was determined at 11s.33,640 by WAPDA and accordingly a demand notice and intimation of acceptance was given to the respondent on prescribed printed form, which has been produced before the trial Court as Exh. D. 4, a, copy of which has been placed on the record of this revision petition as Annexure E/4. It is not disputed that the respondent deposited a sum of Rs.18,640 which is also evidenced by a note given on the said demand notice Exh.P.4. Learned counsel for the petitioner also did not dispute the findings of the Courts below that a sum of Rs.1,300 through receipt ExhS.P.l and P.2 was also deposited by the respondent, which receipts have been produced in evidence before the trial Court. Since a Transformer was required in order to give electric connection, therefore, the respondent was asked to purchase the same of his own which he purchased for Rs.11,900 and the receipt evidencing the said purchase was produced by the respondent as Exh.P.3 before the trial Court. He further spent a sum of Rs.2,300 in this connection which has not been disputed by the petitioners and as such a total amount of Rs.35,240 was spent by the respondent and he was given the electric connection. The petitioners demanded an amount of Rs.30,960 from the respondent on the basis of some audit report which action the respondent challenged by filing the suit before the trial Court. The suit was contested by the petitioners. The learned trial Court after considering the evidence of both the parties decreed the suit, by judgment and decree, dated 22‑6‑1986, which was maintained on appeal by the lower appellate Court through impugned judgment, dated 2,0‑7‑1987. ,

3. Learned counsel for the petitioners argued that the respondent was liable to pay an amount of Rs.10,980 out of estimated cost and the account which the respondent spent on purchase of transformer i.e. Rs.11,900 could not be adjusted against the estimated cost already intimated to him through Exh.P.4 at Rs.33,640. He also maintained that according to the agreement between the parties the matter was referable to Arbitrator, therefore, the matter should have been referred to the Arbitrator by the trial Court and the trial Court could not proceed with the suit. On the authority of Nathoo Ram v. Mala and others A I R 1937 Lah. 25 and F. Gopal Das Parmanand v. L. Mul Raj A I R 1937 Lah. 189 it was argued that suit for declaration was not competent regarding money matters.

4. I have considered the arguments and find no force in them. P.W.1 Muhammad Saeed Khan S.D.C., WAPDA was produced in evidence who admitted that the estimated cost for the Tubewell was Rs.33,640 and that after the deposit of the said amounts nothing was due from the respondent. He categorically admitted that the said estimated cost of Rs.33,640 also included the price of Transformer i.e.' Rs.9,600. The stand of the petitioners that since the respondent was given electricity connection out of turn, therefore, he was not entitled to adjust the amount spent for the purchase of transformer which in these circumstances he was to supply after purchase from his own A pocket was not accepted by the two Courts below. Learned counsel for the petitioners has not been able to persuade me that the said finding of fact concurrently recorded by the two Courts below was suffering from an illegal infirmity. Nothing has been produced on the record that it was agreed between the parties that the transformer was to be purchased by the respondent from his own pocket and that its price was not included in the estimated cost. The two Courts below have not been shown to have acted with material irregularity and illegality in passing the impugned judgments and decrees, either on account of having misread and misconstrued any piece of evidence or having kept any evidence out of consideration. The contention that there being arbitration clause the matter should have been referred to the Arbitrator, the law is well‑settled now that before filing the written statement the petitioners should have made an application to the trial Court which having not been done, therefore, this objection at this stage cannot be entertained. Existence of arbitration clause in an agreement does not take away the jurisdiction of a civil Court" to try the suit and the party who wants to enforce the said clause has to press the same into service before taking any material step with regard to proceedings in the suit i.e. before filing the written statement. The objection, therefore, is repelled.

5. The judgments referred to above relied upon by the learned counsel for the petitioners have no relevancy to the facts and circumstances of this case. According to the facts in the reported cases the plaintiff was claiming declaratory decree against the defendant regarding tile amount which according to the plaintiff was due from defendant. In such a situation it was rightly observed that instead of claiming mere declaration to the entitlement of the said amount the plaintiff has to file a suit for the recovery thereof. In the present case what the plaintiff was challenging was the demand of money made by the petitioners from him which did not involve the recovery of the same by the plaintiff from the defendant, therefore, the action of the petitioners of demanding the said money could be challenged through a declaratory suit.

For the foregoing reasons the revision petition has no merits which is hereby dismissed in limine.

H . B . T . / W‑25/ L Revision petition dismissed.