KARACHI, Aug 19: A division bench of the Sindh High Court allowed two appeals moved by the Private Power Infrastructure Board and the Karachi Electricity Supply Corporation against a decree and judgment passed in favour of M/s Tri-Star, a private power producer, by a single judge earlier this year.

Setting aside the impugned judgment and decree, the bench, which consisted of acting Chief Justice Azizullah M. Memon and Justice Khalid Ali Z. Qazi, remanded the suit instituted by M/s Tri-Star for re-trial in accordance with the law. The trial judge was asked, in particular, to afford an opportunity to the PPIB and the KESC to file an amended written statement in reply to the amended plaint filed by M/s Tri-Star. He was also asked to frame issues and record evidence before rendering a judgment.

The suit was decreed in favour of M/s Tri-Star by Justice Khwaja Naveed Ahmed. The plaintiff submitted that it was allowed to set up a 110-megawatt thermal power plant in Karachi under an agreement signed in 1998. It fulfilled its contractual obligations but the defendants (PPIB and KESC) went back on their commitments and subsequently cancelled the agreement.

Appearing for the PPIB and the KESC, Advocates Yawar Faruqui and Mohammad Ali Azhar argued that the plaintiff concern failed to perform its part of the contract within the stipulated time and violated the terms of the agreement under which it was allowed to install a power generation plant. Even nearly a decade after the agreement, the plaintiff wanted the same rates, which would have put additional burden on the KESC and its consumers.

On the legal plane, they assailed the impugned decree and judgment for having been delivered ex parte and without the defendants being allowed to file an amended written statement in reply to an amended plaint. While the plaint was permitted to be amended, the written statement was not.

The counsel also argued that the suit was decreed without framing of factual issues. Only the pleadings of the parties, incomplete so far as the defendants were concerned, were taken into consideration.

The suit was decided on the very day a new lawyer entered appearance on behalf of the plaintiff and the case, they contended, was not fixed for announcement of judgment. The lawyer who initially filed the plaint had to seek deletion of his name. The errors, they claimed, were apparent on the face of the record.

Advocate Asim Mansoor Khan defended the impugned decree and judgment as being perfectly in accordance with the law and procedure.