CHAIRMAN, PAKISTAN TELECOMMUNICATION LTD., ISLAMABAD Versus S.A. HAMEED ADVOCATE, DISTRICT COURTS, GUJRANWALA
ORDER
Brief facts out of which present revision petition arises are that the respondent is customer of the petitioners and he submitted an application for securing the telephone connection. The petitioners accepted the application of the respondent arid installed Telephone No.250690 in his name in the office of the respondent at District Courts, Gujranwala in the year 1996. The respondent has been paying bill regularly and no arrears is due against the respondent. The contents of the plaint reveal that connection of said telephone of the respondent plaintiff was installed after fulfilment of all the requirements of the petitioners under rules and regulations, but the petitioners neither issued bill in the name of the respondent‑plaintiff nor sent a single bill in the office of the respondent‑plaintiff. The respondent‑plaintiff had to go in the office of the petitioners for receiving the duplicate telephone bills. The contents of plaint further reveal that in the month of January, 1999 the last date for depositing the telephone bill was 23‑1‑1999 but the respondent‑plaintiff deposited the same within due date. In spite of that the petitioners‑defendants disconnected the connection of the respondent plaintiff. The respondent‑plaintiff subsequently, compelled by the circumstances, to visit the office of the petitioners for restoration of the said telephone connection. The said telephone connection was installed by the petitioners in the name of the respondent‑plaintiff but the petitioners‑defendants have intentionally not issued bill in the name of the respondent‑plaintiff due to this act of the petitioners‑defendants. The respondent‑plaintiff has allegedly suffered physical as well as mental agony and he could not contact his clients. Therefore, he has suffered financial loss amounting to Rs.20,000. The respondent‑plaintiff asked the petitioners‑defendants to pay him said amount as token damages but the petitioners‑defendants refused to accept the request of the respondent plaintiff. The petitioners‑defendants filed written statement controverting the allegations levelled in the plaint. Out of pleadings‑ of the parties, the learned trial Court framed the following issues:‑‑
(i) Whether the suit is not maintainable in its present form? OPD
(ii) Whether the plaintiff has been estopped by his own words and conduct to file the suit? OPD
(iii) Whether the plaintiff has no cause of action to bring the suit? OPD
(iv) Whether the plaintiff is entitled to get Rs.20,000 from the defendants as damages? OPP
(v) Relief.
The learned trial Court decreed the suit vide judgment and decree dated 2‑11‑2002. The petitioners‑defendants being aggrieved preferred an appeal before the learned Additional District Judge Gujranwala, who dismissed the same vide impugned judgment and decree dated 12‑3‑2003, hence the present revision petition.
2. The learned counsel for the petitioners‑defendants submits that the judgments of both the Courts below are the result of misreading and non‑reading of the record. He further submits that both the Courts below erred in law to consider the admission on behalf of the petitioners by D. W.1 (Zaheer Ahmad), which is not in accordance with the record as is evident from his operative piece of material evidence. In case, the statement of D.W.1 Zaheer Ahmed be read a whole then it is clear that both the Courts below merely relied upon the portion of statement of D.W.1 Zaheer Ahmad, therefore, the judgments of both the Courts below are the result of misreading and non‑reading of the record. He further submits that the respondent‑plaintiff did not approach the petitioner's official/officer, who did not have any record of written application submitted by the respondent‑plaintiff in the office of the petitioners‑defendants, which is condition precedent in the terms of agreement arrived at between the parties. He further submits that the Exh.P.B. produced by the respondent‑plaintiff dated 13‑2‑1999 is forged document but both the Courts below did not consider this aspect of the case, therefore, judgments of both the Courts below are the result of misreading and non‑reading of the record. He further submits that the learned trial Court erred in law to decide Issues Nos.1 and 2 in favour of the respondent in violation of legal aspect of the case that the suit filed by the respondent‑plaintiff was not maintainable in view of clause 11(2) of the agreement executed between the petitioners‑defendants and the respondent‑plaintiff. He further submits that the learned trial Court also erred in law to give findings against the petitioners‑defendants on Issue No. 3 without adverting to the bar of jurisdiction. He further urges that in terms of clause V and VI of the agreement, it was incumbent upon the respondent‑plaintiff to submit a written complaint before the relevant authority which admittedly had not been filed by the respondent‑plaintiff, therefore, both the Courts below erred in law to entertain the suit and assume the jurisdiction. He further submits that there are various remedies available to the respondent‑plaintiff to agitate the matter before the higher authorities under the law but this fact was also not considered by the learned trail Court in its true perspective. He further submits that the First Appellate Court also counter signed the judgment of the learned trial Court without applying its independent mind. He further submits that the First Appellate Court did not consider grounds 2, 3 and 6 taken by the petitioners‑defendants in the memorandum of the appeal, therefore, the judgment of First Appellate Court is not sustainable in the eye of law.
3. I have given anxious consideration to the contentions of the learned counsel for petitioner and perused the record.
4. It is admitted fact that both the Courts below have given concurrent findings against the petitioners‑defendants qua following facts after reappraisal of the evidence on record.
(i) The respondent‑plaintiff submitted an application in his own name before the petitioners‑defendants to obtain telephone connection.
(ii) The demand notice was also issued by the petitioners‑defendants in the name of respondent‑plaintiff.
(iii) The amount mentioned in the demand notice, had been received by the petitioners‑defendants from the respondent plaintiff.
(iv) The agreement was also executed between the petitioners defendants and the respondent‑plaintiff in the year 1996.
(v) The petitioners‑defendants sent bills qua telephone in‑question since 1996 till June, 1999 to the respondent‑plaintiff in the name of one Muhammad Riaz at his address, i.e. Bismill Colony By‑pass Chowk, Gujranwala, but respondent‑plaintiff has no concerned whatsoever with the said Muhammad Riaz.
It is pertinent to mention here that the petitioners defendants did not bring on record the application submitted by the respondent‑plaintiff to show that the respondent‑plaintiff had mentioned the address; where the petitioners had sent the bills to the respondent. The petitioners‑defendants also failed to bring on record even an agreement executed between the, petitioners‑defendant and the respondent‑plaintiff.
5. It is better and appropriate to reproduce the operative part from the statement of examination‑in‑Chief as well as cross‑examination of D.W.1 Zaheer Ahmed to resolve the controversy between the parties:‑‑
It is settled principle of law that the parties are bound by their pleadings. The petitioners‑defendants did not controvert the stand of the respondent‑plaintiff on material point in the written statement coupled with the facts, even if the petitioners had controverted the contents of plaint in letter and spirit then the petitioners failed to prove the contents of written statement as is evident from the statement of D.W.1 Zaheer Ahmad. Both the Courts below have given concurrent findings against the petitioners. The Privy Council has also laid down parameters to interfere in the finding of the Courts below while exercising power under section 115 of C.P.C. in "N.S. Vankatagiri Ayyangar and another v: The Hindu Religious Endowments Board Madras" (PLD 1949 PC 26). The relevant observation is also follow:‑‑
"This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally; that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council is followed by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood" (1985 CLC 657).
6. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court. The learned counsel for the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. The learned ‑counsel of the petitioner also failed to bring on record any piece of evidence, which was non‑read and misread by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below. It is the duty and obligation of the petitioners‑defendants being public functionaries to act in accordance with law as is envisaged by Article 4 of the Constitution. The act of the petitioners‑defendants is not in accordance" with the law as is evident from the statement of D.W.1 Zaheer Ahmad. It is pertinent to mention here that the cases are generally decided against the Government Department/Semi Government Department as public functionaries do not bring on record true facts by producing oral as well as documentary evidence. This is also one of the classical cases, where the petitioners‑defendants failed to bring on record any document to dislodge the claim of the respondent plaintiff.
In view of what has been discussed above, I do not find any infirmity and illegality in the judgments of both the Courts below, therefore, this revision petition has no merit and the same is dismissed.
M.H./C‑234/L Petition dismissed.