Delhi District Court
Smt Kasturi Devi vs North Delhi Power Ltd on 20 February, 2010
Civil Suit No.691/06/00
Smt Kasturi Devi Vs North Delhi Power Ltd
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.691/06/00
(Old case :10 years old)
Smt Kasturi Devi
W/o Sh Ram Chander
Khasra No 33/1//1,
Village Kureni
Narela Delhi . ........Plaintiff
Vs
North Delhi Power Ltd
Through its C.E. O.
Hudson Line, Kingsway Camp,
Delhi ........ Defendant
SUIT FOR PERMANENT & MANDATORY INJUNCTION
Date of institution of suit : 09.05.2000
Date of assignment to this court : 01.12.2008
Date of hearing final argument : 08.02.2010
Date of Judgement : 17.02.2010
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit for permanent, mandatory injunction and declaration against the defendant seeking a decree of declaration against the defendant declaring the bill of Rs.94,680/ as illegal, arbitrary null and 1 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd void, the plaintiff has further prayed for a permanent injunction thereby restraining the defendant/DVB its officials agents etc from disconnecting the electricity supply of the plaintiff for non payment of the bill amounting to Rs.1,05,564.77 paise (which includes amount of Rs.94,680/) against K.No122035/IP installed at Khasra No 33/3/1, Village Kureni, Narela Delhi , plaintiff has also prayed for a decree of mandatory injunction against the defendant thereby directing them to accept the request of the plaintiff alongwith reinspection fee for reinspection of the premises, to do the reinspection in respect of the premises against K.Nos mentioned above in respect of load and shunt capacitor , to stop levying LPF charges for non installation of shunt capacitor and from charging MG on the load of 42.93 KW on the basis of inspection dt. 05.11.98 and to process the case of the plaintiff after following due process of law. The plaintiff has also prayed for costs of the suit.
2. Eschewing prolix to the pleadings crystallizing the same the plaintiff is stated to be the registered consumer of electricity connection bearing K. No NL/014122035/IP and NL014122036 IL installed at Khasra No.33/3/1, Village Kureni, Narela Delhi . It is further stated by the 2 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd plaintiff that the said connection is sanctioned for IP purposes against a sanctioned load of 30.12 KW (40 HP) and the plaintiff is regularly paying the consumption bill as and when raised by the defendant against both the electricity connection . It is further the case of plaintiff that under the Voluntary Disclosure Scheme of the DVB she got her load increased to 30.12 KW and had deposited the necessary charges for the same on 30.12.95 vide receipt No 346934 for Rs.19,980/. It is further the case of the plaintiff that inspite of deposit of the necessary charges the plaintiff meter No.8706314 was not replaced with a proper CT meter alongwith required service line. It is further the case of the plaintiff that on repeated request replacement of CT meter the plaintiff was forced to deposit a further amount of Rs.4290/ vide receipt dt 12.8.98 but despite that the same was not replaced. It is further the case of the plaintiff that earlier this meter was sanctioned in the name of Sh Ram Kishan which was later on transferred in the name of Smt Kasturi Devi sometime in 1994. It has been stated by the plaintiff that the defendant has carried out an inspection at the premises on 07.01.1993 against this meter and raised the bill for Rs.10,51,233.98 paise on the basis of the said inspection dt 07.01.1993 and by aggrieved of the action of defendant plaintiff had filed a suit in the Civil 3 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Court and the same is pending in the court of Sh Gurdeep Singh Saini Civil Judge Delhi vide suit No.1158/93 in which the court had stayed the full amount of the bill . It is further the case of the plaintiff that again on 05.11.98 defendant conducted a raid against the same meter without replacing the earlier tampered meter and raised a bill for Rs.3,37.996.86 paise which was challenged by the plaintiff by filing a suit in the court of Sh Sanjay Garg Civil Judge Delhi vide suit No 1076/99 and in that case also the court had stayed the full amount of the bill . It is further the case of the plaintiff that in inspection report dated 05.11.98 besides the allegations of tampering, shunt capacitor being not found and the connected load had been mentioned as 42.93 KW against the sanctioned load of 30.12 KW by adding the old and unused machinery which are not connected with the system and lying idle/scrapped . Plaintiff stated to have requested the defendant to accept the reinspection fee for reinspection of premises which was not accepted by the defendant and the plaintiff sent the necessary documents alongwith the bank draft of Rs.200/ through registered AD on 26.2.2000 , but inspite of said request the defendant vide his letter No 2514/122035/IP/CB sent a letter to plaintiff seeking clarification regarding name change in respect of said connection. The 4 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd plaintiff visited the office of defendant and explained about the name changed as Smt Kasturi Devi by defendant and even the theft bill raised on the basis of inspection dated 05.11.98 is in the name of Smt Kasturi Devi . It is the case of the plaintiff that when he visited the office of defendant for getting correction in the bill of Feb 2000 but the Defendant did not make any correction and asked the plaintiff to deposit Rs.1,05,564.77 paise instead of current demand of Rs.10,881.79 paise without giving any details. It is alleged that defendant has never supplied the copy of the alleged inspection to the plaintiff , and that no details as to how and on which basis the impugned demand has been calculated is mentioned in the bill . It is further alleged that no show cause notice was given and no opportunity of personal hearing was given to the plaintiff which is against the Principle of Natural Justice. It is further alleged by the plaintiff that the action of the defendant are totally illegally arbitrary and against the principle of law and their own rules and regulations. It is further alleged in the plaint by the plaintiff that the cause of action arose in favour of plaintiff and against the defendant on 30.12.95 when the plaintiff got her load increased to 30.12 KW and again on 07.01.1993 when inspection was carried out and disputed bill was received for a sum of Rs.10,51,233.98 paise and on various other 5 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd dates including when the impugned demand of Rs.1,05,564.77 paise was illegally raised by defendant and the same cause of action is still subsisting . The plaintiff has therefore prayed for a decree of declaration, permanent and mandatory injunction against the defendant with costs of the suit .
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation of plaintiff by stating that the plaintiff has not approached the court with clean hands and suppressed the material facts and the suit of the plaintiff is not maintainable and is liable to be dismissed on this ground alone . It is further contended by the defendant that the raid was conducted at the premises of plaintiff by joint inspection team comprising of officials of enforcement, MTD and zonal staff on 05.11.98 in the presence of representative of plaintiff and the plaintiff was found indulged in theft of electricity as half seals of the meter were found fictitious and the connected load was found 42.922 KW against meter No.8706314 and no load was found against meter No.1086824. It is also contended that a show cause notice and 24 hours notice was sent to consumer/plaintiff to attend the personal hearing on 25.11.98 and the connection was found being 6 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd used by M/s Ram Chander Dal Mill . Hence the defendant is stated to have followed a due process before raising the impugned bill . It is further contended that besides irregularities of misuse, subletting and theft of energy was noticed. Hence the bill was raised in view of these irregularities strictly in accordance with law. It is prayed that the suit of the plaintiff be dismissed with costs.
4. Vide order dated 20.11.2001 as passed by ld Predecessor of this court, the following issues were framed for adjudication : ISSUES (1) Whether the demand raised by DVB for Rs.94,680/ is illegal ? OPP (2) Whether the plaintiff is entitled to the decree for permanent injunction as prayed ? OPP (3) Whether plaintiff is entitled to decree of mandatory injunction as prayed for ?OPP.
(4) Whether the plaintiff has not come to the court with clean hands & suppressed the material facts ? OPD (5) Relief .
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Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd
5. It is pertinent to point out that the suit as originally filed before the court on 11.05.2000 was a suit simplicitor for permanent injunction . However in view of judgement reported in 110 (2004)DLT 633 titled Sarjiwan Singh Vs Delhi Vidyut Board wherein which our Hon'ble High Court has held that where the sundry bill raised by the defendant is challenged by the plaintiff he is required to seek a decree of declaration in respect of the impugned bill. The Hon'ble court has further held that the plaintiff in such case is also required to pay an ad valorum court fee under the provision of Section 7 (iv) (c) of Court Fee Act, accordingly the plaintiff in the instant case moved an application u/o 6 rule 17 CPC for amendment of the plaint which was duly considered and allowed by this court vide order dated 12.12.05 and the plaintiff suit after amendment has become a suit for declaration, mandatory and permanent injunction. Defendant on its part filed a detailed written statement to the amended plaint, thereby incorporating the preliminary objections regarding the relief of declaration being time barred.
6. Vide order dated 01.12.08 of ld Predecessor of this court following additional issue was framed for adjudication: 8
Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Additional Issue 1A Whether the plaintiff is entitled for a decree of declaration as prayed for ? OPP
7. It may be seen that the suit was originally filed in the name of plaintiff against the defendant DVB which was later on unbundled in the year 2003 and the work of production, transmission and supply of electricity was segregated and assigned to various corporation/agencies and as such the distribution work was handed over to various distcoms for example BSESYPL in the instant case. The plaintiff however has failed to move any application u/o 22 rule 10 CPC for substitution the name of defendant and as such the suit continued against the erstwhile entity.
8. Plaintiff in support of its case got examined her Special Power of Attorney namely Sh Rajesh Kumar as PW1 who has reiterated the contents of plaint on oath before the court . He has deposed that he being the liason officer working with the plaintiff is well conversant with the facts and circumstances of the case and his Special attorney by virtue of Special Power of Attorney dated 19.10.02 executed by the plaintiff in his favour which got exhibited on record as Ex PW1/1 . The witness has stated that 9 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd the IP connection was sanctioned with the load 40 HP ( 30.12 KW) which was again enhanced to 30.12 KW under the voluntary Disclosure scheme on 30.12.95 . The witness has stated that the defendant has failed to install new CT meter and meter No 8706314 remained installed against said K. No . Charges were again deposited by the plaintiff on 12.08.98 copy of receipt got exhibited on record as Ex PW1/1. Witness has stated however the meter was not replaced , the witness has further deposed that meter earlier existing in the name of Sh Ram Kishan which was transferred in the name of plaintiff Smt Kasturi Devi after completion of all necessary commercial formalities. The witness has further stated that earlier inspection dt 07.01.93 against which the FAE bill was raised which was challenged by the plaintiff and was stated to be pending in the court of one Sh Narender Kumar Civil Judge Delhi. Witness has stated that the defendant again conducted an inspection on 05.11.98 in respect of same meter and another case is pending in this court vide suit No.1076/99 titled Kasturi Devi Vs DVB wherein which the full theft amount has been stayed. The witness was stated that they have been making regular payment against the connected load of the premise which is 30.12 KW but has been wrongly noted 42.92 KW which does not exist at all. Witness has further stated 10 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd that the shunt capacitor was installed at the premises but false allegations were made in the inspection report that there exist no shunt capacitor. The witness finally deposed about the impugned bill for the month of February 2000 and states that same includes arrears of stayed amount and current amount of Rs.10,881.79 paise which the plaintiff is not liable to pay. Witness has further stated that they have gone to make payment of bill for correction, the official of DVB has shown amount of Rs.94,680/ against code 35 without giving any details. Witness has stated that the aforesaid amount of Rs.94.680/ is not payable at all by the plaintiff and the plaintiff has again made application for reinspection which was not accepted and as such the plaintiff has send the same through registered AD post with bank draft of Rs.200/ . The copy of the bank draft and notice sent by the plaintiff to the defendant for reinspection got exhibited on record as Ex PW1/2 and 3 respectively. Witness has stated that the reply was received from the defendant/DVB copy of which got exhibited on record as Ex PW1/4. Witness has further stated that the documents asked for by DVB were deposited by him . The reinspection has not been made . Witness has finally stated that the suit is correct and he is not liable to pay the impugned demand of Rs.94,680/ for which no details has been given. 11
Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Witness was cross examined at length by the ld counsel for the defendant who has asked various questions regarding the policy and the kind of connection being taken by the plaintiff. The witness has further stated that he has challenged the demand of Rs.94,680/, copy of the bill got exhibited on record as Ex PW1/DX1.
9. Vide statement dated 22.10.02 of ld Predecessor of this court plaintiff evidence was closed by order .
10. Defendant in support of its case got examined two witnesses one Sh R S Yadav stated to be JE (zone) as DW1 . The witness has deposed in support of defendant case thereby stating that being the member of joint inspection team which carried out an inspection at the premises of the plaintiff on 05.1.98 he while posted as JE in the meter testing department (NW) inspected the site. He got exhibited the copy of the MTD report as Ex DW1/1. Witness has further stated that the report was prepared in his own hand writing at site and contents of the same are correct . He has further stated that during the inspection one poly phase meter and one single phase meter was found installed on a wooden board 12 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd where half seals of both the meter were found fictitious and both the rivets of the polyphase meter were found tampered. The witness has stated that after inspection was completed paper IR seal was pasted on both the meter and wooden board to maintain the status quo and the papers were sent to enforcement department for processing the case. Witness was cross examined at length by ld counsel for plaintiff who has asked about the number of meter which was inspected to which the witness has specified the same to be meter No.4 J 8706314 polyphase and E1086824 as single phase. The witness stated that the representative of the plaintiff has failed to show the electricity bill.
Defendant further got examined Sh S S Antil JE (Zone), 522 as DW2 who deposed on similar lines as that of DW1 and has stated about the inspection being carried out at the premises of the plaintiff on 05.11.98 by joint inspecting team of which he was a member as an Inspector enforcement. Witness has stated that two meters were inspected out of which one was polyphase meter and the connection was used by one Sh Ram Chander for running a dal mill under the name and style of M/s Ram Chander Dal Mill where the connected load was found to be 42.922 KW and no shunt capacitor was found installed. The witness has stated that 13 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd there has been no load found against IL meter. The witness has stated that the load report was prepared vide performa No.770 dated 05.11.98 which he has mentioned to have exhibited as ExDW2/1 in his affidavit. However it may be seen that the document has not been filed on record. The witness was cross examined at length by the ld counsel for the plaintiff who has asked questions about the composition of joint inspecting team including the number of members of enforcement department. Witness has asked about the name of the registered consumer to which the witness has stated as Ram Chander as per record . Witness has further stated that the report was prepared by one Sh Mahender who was member of joint inspection team and whose signatures he identify. No other witness was examined by the defendant at the relevant time.
11. Vide order dated 12.07.2004 of ld Predecessor of this court DE was closed by order .
12. It is worth mentioning that after an additional issue regarding declaration was framed on 01.12.08 the parties were given an opportunity to lead their evidence to which the plaintiff has stated that he 14 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd do not wish to lead any further evidence on the additional issue and vide statement dated 24.03.09 of counsel Sh Harish Jain the plaintiff evidence was again closed.
Opportunities were granted to the defendant to lead evidence in defence on the additional issue which the defendant has failed to lead the same and vide statement dated 14.07.09 of the representative of the defendant the evidence of the defendant was also closed .
13. I have heard the ld counsel for the parties and perused the entire record including the pleadings, documents and oral testimony of witnesses on record. I have given a thoughtful consideration to the aforesaid as also written submissions filed on record. The issue wise determination is as follows :
ISSUE No 4 Whether the plaintiff has not come to the court with clean hands & suppressed the material facts ? OPD The onus of proving this issue was on the defendant who has raised the preliminary objection in para 2 of written statement of the amended plaint wherein it has been stated that the plaintiff has not approached the court with clean hands and suppressed the material facts. 15
Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd In this regard it may be seen that though the plaintiff has failed to lead any specific evidence as to how the plaintiff has not approached the court with clean hands. However it appears that the defendant was pointing out towards the alleged inspection dated 05.11.98 wherein the plaintiff was allegedly stated to have been found in various irregularities with alleged theft of electricity . The testimony of DW1 and 2 in respect of alleged inspection is on record and even DW1 got exhibited the MTD report dated 05.11.98 which is stated to have been prepared on site as ExDW1/1 .
However it may be seen that since the alleged inspection whether being carried out in accordance with law or after completing with procedural or substantive requirement is an issue pending adjudication before this court. The court shall be dealing with while adjudication of other issues including the issue of plaintiff regarding entitlement to the reliefs claimed. However on the basis of available record and in view of the aforesaid discussion of the court the court is of the considered opinion that in the absence of any specific evidence or testimony of the witness in support of this issue, the defendant has not been able to discharge the onus in respect of this issue atleast to the extent of preponderance of probabilities. This issue is accordingly decided against the defendant and in favour of the plaintiff . 16
Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd ISSUE No. 1 ,2 ,3 & Additional Issue No 1A (1) Whether the demand raised by DVB for Rs.94,680/ is illegal ? OPP (2) Whether the plaintiff is entitled to the decree for permanent injunction as prayed ? OPP (3) Whether plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP.
(1A) Whether the plaintiff is entitled for a decree of declaration in respect of the as prayed ? OPP The onus of proving these issues was on the plaintiff and these issues are being tried together in view of the fact that these issues relates to the alleged inspection dated 05.11.98 and the impugned bill of February 2000 for sum of Rs.1,05,964.77 paise which is stated to have been carrying arrears of Rs.94,680/ which the defendant have raised in respect of the alleged theft of electricity by the plaintiff and the plaintiff states to have been raised an illegal and unlawfully without verification of actual facts. The plaintiff has further questioned the alleged inspection on various procedural and substantive grounds including the ground stated to be non serving of a show cause notice or grant of an opportunity to rebut the allegations or passing of a detailed speaking order . Consequently these issues also relates to an entitlement of the plaintiff to the reliefs of declaration in respect of alleged demand of Rs.94680/ which the plaintiff has sought to be declared as illegal, arbitrary null and void as also the 17 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd other reliefs including the relief in perpetual form against disconnection of the electricity supply for non payment of the bill of Rs,1,05,564,77 paise which includes the impugned demand of Rs.94,680/ and in mandatory form seeking a number of relief including accepting the reinspection fees , carrying out reinspection and issuance of bill against actual consumption besides restrain in form of levying IPF charges for non installation of shunt capacitor and excess charges on the load of 42.922 KW on the basis of inspection report dated 05.11.98. All these issues are tried together in view of the common evidence on the issues and interesting question of law regarding the competence of the witness of the plaintiff. First and the foremost it is worth mentioning that the plaintiff has failed to file any document in original before the court and whatever documents have been shown on record during the testimony of PW1 Sh Rajesh Kumar are photocopies, secondly it is not clear from the averments made by the plaintiff as to which bill has been challenged by the plaintiff in the instant suit. The photocopy of the bill of the month of February 2000 Ex PW 1/DX1 shows demand of Rs.6,17,077/ as an amount before the due date and shows the current demand of Rs.10,884.78 paise , in the arrears column the bill shows an arrears to the tune of Rs.5,44,455/ and amount of 18 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Rs.61,736/. It has not been clear from the perusal of ExPW1/DX1 as to which part of the demand has been challenged by the plaintiff. Careful perusal of the aforesaid impugned bill also shows noting made by some AFO made to the cashier containing as request to accept Rs.1,05,564.77 paise with the reason apended due to court case. The noting also shows calculation to the impugned demand of Rs.94,680/. There is no such supporting document to show how this calculation has been arrived at . Be that as it may the court shall be considering this aspect at relevant point of time. It may be seen that the case of the plaintiff is that being the consumer of electricity in respect of K. No122035/IP , meter No.8706314 installed at Khasra No 33/3/1, Village Kureni, Narela Delhi . The plaintiff has been using the electricity legally and has been paying the bill from time to time as per the demand raised by defendant DVB from time to time and inspection was carried out on 05.11.98 at the premises of the plaintiff where the plaintiff was alleged to have been found indulged in various irregularities including drawing of excess energy much in excess to sanctioned load to the tune of 42.922 KW. The plaintiff was allegedly found indulging in other irregularities as such meter half seals were found fictitious and tampered against both the meters. Plaintiff is stated to have 19 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd been raised which was challenged before this court in other case and other courts. Plaintiff in the instant case aggrieved by the demand of Rs.94,680/ which he stated to have come to know first time when he approached the office of DVB for getting correction of bill of February 2000 where he was asked to pay Rs.1,05,564.77 paise instead of current demand of Rs.10,884.79 paise . Plaintiff stated that the demand of Rs.10,884.79 paise was illegal , arbitrary null and void. During the course of arguments the counsel for the plaintiff has stated that no inspection report was ever supplied to the plaintiff, no show cause notice was ever given, there has been absolutely no opportunity of personal hearing or speaking order has been passed before raising the aforesaid demand. He has relied upon the pronouncement of law laid down in 140 (200) DLT 257 titled R K Nayyar Vs BSES , 145 (2007) DLT 467 titled Century Lamination Company Vs NDPL and has stated neither the inspection was carried out in accordance with law nor the consumption pattern was ever studied . Ld counsel Sh Jain during the course of arguments has vehemently argued while relying upon the aforesaid authority that mere tampering of seals is not sufficient to draw an inference of Fraudulent Abstraction of Energy (FAE) which the plaintiff is required to show separately and by showing that the matter was 20 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd turned into a machine recording less consumption then was actually used.
On the other hand the defendant in his written statement to amended plaint has stated that on inspection at the premises of the plaintiff the connected load was found to be 42.922 KW against meter No.8706314 and no load was found connected against meter No.1086824 . The defendant has stated that 24 hours show cause notice was sent to the plaintiff with a request to attend the personal hearing on 25.11.98 and after adopting the due process of law. The suit demand to the tune of Rs.1,05,564.77 paise as per provision of tariff were raised which is not only correct but legal and as such plaintiff was liable to make the aforesaid payment . It may however be seen that neither the alleged show cause notice has been filed on record nor the same has been duly proved in accordance with law. The court shall be considering the aforesaid aspects alongwith the testimonies of witnesses from both the sides. First and foremost it may be seen that PW1 Sh Rajesh Kumar who was stated to be Special Power of Attorney of Smt Kasturi Devi plaintiff herein by Special Power of Attorney Ex PW1/A has stated that the impugned connection was lawfully used and there has been earlier inspection on 07.01.93 at the premises of the plaintiff which was questioned before another court of law. 21
Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd The witness has stated the inspection dated 05.11.98 in respect of same meter is also the subject meter challenged before the court vide suit No.1076/99 titled Kasturi Devi Vs DVB . The witness has stated that excess load was never found at the premises which was wrongly shown as 42.922 KW and even the shunt capacitor was installed. The witness in a way has also questioned the inspection report dated 05.11.98 on procedural grounds as discussed earlier. However a critical analysis of sole witness examined by the plaintiff first raises the question as to whether the witness was due competent to depose on behalf of the plaintiff or whether the plaintiff has been able to discharge the onus of proving the aforesaid issues in respect of not only impugned inspection dated 05.1.98 but also showing its entitlement on the basis of his testimony atleast to the extent of preponderance of probabilities. In this regard it is a settled preposition of law laid down by the Hon'ble Apex court in AIR 2005 SC 439 , titled Janki Vashdeo Bhojwani vs Indusind Bank . Power of attorney cannot depose in place of the plaintiff and instead of principle. The Hon'ble court while explaining the provision of order 3 rule 1 and 2 clearly lays down that the holder of Power of Attorney can Act on behalf of the principle but the word act in order III rule 2 in respect of 'Act' of Power of Attorney holder 22 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd by endorsement and would not include deposition in place of instead of principle. The Hon'ble court has held that suit can be prosecuted by an attorney but he cannot appear as a witness in place of plaintiff and in respect of matter which only the principle can have knowledge about. Principle is one who is averred in its case in the plaint and necessarily required to be subjected to cross examination for the purpose of verification of his contentions raised in the plaint . Similar voice were raised earlier in JT (1999) 2 SC 183 titled Vidyadhar Vs Manil Rao where the question has been duly dealt with by the Hon'ble Supreme Court and has held :
" when a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself for cross examination to other side the presumption would arise that the case set up by him is not correct and in such case an adverse presumption can be raised that the case is not based on true facts and does liable to be rejected"
The aforesaid preposition of law has earlier been also explained in AIR 1998 Rajasthan 185 titled Ram Prasad Vs Hari Narain & Ors wherein it has been held that the meaning of work act in order III rule 1 and 2 CPC read with section 118 of the Evidence Act 1872 clearly shows that the word 'act' does not include the act of Power of 23 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Attorney holder to appear as a witness on behalf of the party. In the instant case it may be seen that the plaint has been signed and verified by the plaintiff Smt Kasturi Devi thereby also verifying cause of action and only his attorney Rajesh Kumar has got examined himself before the court and also presented himself for cross examination, while the plaintiff has failed to produce herself as a witness for testifying not only the case of action but also the averments made in the plaint. Admittedly she has not presented herself for the purpose of cross examination and an adverse inference needs to be drawn against her. In view of the settled law laid down in (1993) 3 SCC 457 titled Iswar Bhai C Patel Vs Harihar Behera & Ors . Ld counsel for the plaintiff during the course of arguments has even tried to refute the aforesaid preposition of law by placing on record the pronouncement of law laid down in 2002 (3) CCC 680 SC titled Ratan Devi Vs Pasand Devi and has tried to persuade the court that merely because the plaintiff has failed to enter the witness box cannot be a ground which disentitles, the plaintiff to the relief claimed on the ground that an adverse inference has been drawn for non examination of the plaintiff in the witness box. The plaintiff has while relying upon the aforesaid judgement has pointed out that the court must consider the oral and documentary 24 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd evidence available on record and mere absentation of plaintiff may pale into insignificance into such cases. In this regard it is worth mentioning that first and foremost the Hon'ble Supreme Court while laying down the aforesaid preposition of law has clearly reiterated the preposition of law laid down in Ishwar Bhai C Patel Vs Harihar Behera & Ors (Supra) , regarding the necessary requirement of plaintiff to examine himself in support of his case by terming the preposition of Ishwar Bhai Patel (Supra) as 'undoubtable'. Secondly the aforesaid question of law has been later dealt by the Hon'ble subsequent judgement of Janki Vasodeo Bhojwani Vs Indusind Bank (Supra) wherein the Hon'ble Apex court has clearly explained the meaning of act under order 3 rule 2 as also the competence of Special Power of Attorney to act on behalf of its principle and as such the aforesaid preposition of law does not apply to the fact and circumstances of the instant case as the question regarding the principle of Power of Attorney and its competence to depose in place of plaintiff is not mere a resintegra.
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Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Admittedly the plaint has been signed and verified by the plaintiff Smt Kasturi Devi and it can only be the plaintiff Smt Kasturi Devi who can depose about the correctness of the averments made by her in the plaint. Further she has to present herself for cross examination to the other side on these averments and the testimony of PW1 Sh Rajesh Kumar cannot be termed as plaintiff's evidence and at best can be admitted as a hear say evidence . In view of the aforesaid discussion the court is of the considered opinion that in the absence of any legally admissible evidence on record the averments made in the plaint becomes nothing but bald assertion . The plaintiff cannot be stated to have been discharged the onus conferred on it so as to prove its entitlement to the relief claimed legally and to the extent or preponderance of probabilities. These issues are accordingly decided against the plaintiff and in favour of the defendant .
RELIEF Relief In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the plaintiff has utterly failed to prove its case even to the extent of preponderance of probabilities The plaintiff is not entitled to any discretionary relief under Specific Relief 26 Civil Suit No.691/06/00 Smt Kasturi Devi Vs North Delhi Power Ltd Act, 1963 from this court . Suit of the plaintiff is accordingly dismissed , with no order as to costs. Decree sheet be drawn accordingly. File be consigned to record room after due completion .
(MUKESH KUMAR GUPTA)
DATED 17.02.2010 SCJ/RC(NORTH)DELHI
ANNOUNCED IN THE OPEN COURT.
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