Delhi District Court
Bses Yamuna Power Ltd vs Sh.Satish Chawla on 29 January, 2010
IN THE COURT OF SHRI SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE (CENTRAL DISTRICT) DELHI
RCA No.20/08 (I.D.No. 02401C0823082008)
Date of Institution: 31.05.08
Final Arguments heard on :04.01.10
Date of Decision: 29.01.10
BSES Yamuna Power Ltd.
Shakti Kiran Building
Karkardooma
Delhi.
... Appellant
Vs.
Sh.Satish Chawla
Stall No.12, B5 Market,
Yamuna Vihar,
Shahdara, Delhi
... Respondent
ORDER
1 Appellant (defendant in suit) has challenged the judgment and decree dt.3.3.08 passed by the court of Ld.Civil Judge, Delhi in suit no.1424/06 titled Sh.Satish Chawla Vs. BSES Yamuna Power Ltd. RCA No.20/08 1 2 Briefly, the present respondent( plaintiff in the suit) filed the suit for declaration and permanent injunction alleging that he is the general power of attorney of Sh.Rajender Kumar, who was the registered consumer of electricity in respect of the commercial connection no.622132153 for load of 1 KW which was installed at stall no.12, LSC, Block B5 Market, Yamuna Vihar, Delhi. When the distribution work of electricity was taken over by the defendant, the electricity connection was changed to 1250V1200383. According to plaintiff, he applied for the additional load and accordingly deposited an amount of Rs.7800/ vide receipt dt.21.9.02. However, the said load was not shows in the bills. On 14/15506 the shop was burnt and electric appliances, electric meter and fittings were accordingly damaged. The application dt.15.5.06 was given by the plaintiff to the officials of defendant with the request to transfer a new meter. On 24.5.06, official of the defendant visited the premises of plaintiff. The official changed the meter and also prepared an inspection report. The plaintiff was asked to sign the inspection report, but plaintiff was not satisfied with the remarks given RCA No.20/08 2 by the officials. A show cause notice was given to plaintiff to appear on 31.5.06 at 10 AM. Plaintiff appeared before the Assessing Officer and submitted his representation along with the documents. Thereafter, a speaking order dt.13.6.06 was received by plaintiff and a bill of Rs.1,64,136/for dishonest abstraction of energy (DAE) was raised. Plaintiff alleged that bill is illegal, baseless and frivolous on the basis that meter was burnt in midnight and report in this regard was made to the District Office of defendant. As per plaintiff case, the consumption pattern was not properly analyzed. Plaintiff alleged that the inspection report is illegal, false and against the provision of DERC Regulations. Plaintiff alleged that he was not indulged in any kind of electricity theft and he is not liable to pay the bill.
3 In written statement, defendant (present appellant) alleged in preliminary objections that suit is liable to be dismissed as plaintiff is trying to avoid his liability to pay the DAE bill; that suit is bad for non joinder of registered consumer of electricity connection and the plaint does not disclose any cause of action. On merits, it was admitted that RCA No.20/08 3 premises was inspected on 24.5.06. It was stated that meter was not found at the shop and it was told by the plaintiff that same was at his residence. Meter was produced by the plaintiff, which was found to be badly burnt. On checking, it was revealed that meter was burnt from the front side, but there was no burning signs on terminals and the seals of the meter. As per defendant, their officials segregated the meter and found that meter has been tampered with and the consumer had access to the internal mechanism of the meter. The meter reading was found in six digits instead of five digits and the connected load was 6.100 KW. As per defendant, the details of the inspection were noted in inspection report, show cause notice was given to the consumer, personal hearing was afforded to the plaintiff and thereafter the speaking order dt.13.6.06 was passed and the impugned bill was raised on account of DAE.
3 On the basis of pleading and material on record, following issues were framed by the Ld.Trial Court vide order dt.9.11.06.
1. Whether the plaintiff is found indulged in DAE?(OPD) RCA No.20/08 4
2. Whether the demand raised by the defendant is justified and legal?(OPD)
3. Whether the plaintiff is entitled to the decree of declaration, as prayed for?(OPP)
4. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ?(OPP)
5. Relief.
4 In support of his case AR of the plaintiff examined himself as PW1. In defendant's evidence S.Tek Ram, Field Executive of the defendant as DW1, Sh.H.S.Sainwal, Dy.Manager(Enforcement) as DW2 and Sh.K.P.Singh, Asst.Manager(Enforcement) as DW3 were examined.
5 Ld.Trial court examined issue no.1 and 2 together and decided in favour of the plaintiff, holding that no case of DAE was established and demand raised by defendant was not justified. Accordingly, the suit for relief of declaration and permanent injunction was decreed. RCA No.20/08 5 6 Impugned judgment and decree has been challenged by appellate mainly on the grounds that Ld.Trial Court did not appreciate that meter was found removed from the site and after the fire incidence the seals were found missing. DW1 specifically stated that terminal seals were found missing and meter was found tampered with. It was further submitted on behalf of appellant that as per the inspection report, consumer has accessibility to the internal mechanism and a clear case of DAE was established. It is also alleged that Ld.Trial Court did not considered that at the time of inspection, the reading of the meter was found in 6 digits, whereas in January 2006 reading was in five digits i.e. 27574. It is alleged that Ld.Trial court failed to appreciate the evidence on record in its right prospective, in respect of sphere and scope of the issues and relied on the judgment passed by the superior court which were not applicable in the facts and circumstances of the case. 7 Apart from the ground of appeal, Ld.counsel for appellate further contended that in view of the law laid down by Hon.High Court of Delhi RCA No.20/08 6 in B.L.Kantru Vs. BSES Rajdhani Power Ltd, 154 (2008) DLT 56 (DB). Ld.Trial court has no jurisdiction to try and adjudicate upon the subject matter of the suit and therefore, the judgment and decree dt.3.3.08 passed by Ld.Trial court is a nullity. Ld.counsel for appellant has further emphasized that though preliminary objection were specifically taken in the written statement, that suit is bad for non joinder of registered consumer and plaint lacks cause of action, neither issues were framed by the Ld.Trial Court nor the objections were decided.
8 Ld.counsel for respondent controverted the submissions. The ground of appeal has been denied as baseless. It is stated that question of jurisdiction was not raised. The preliminary objections taken in written statement were neither pressed at the time of framing of issues nor at the stage of trial and therefore, can not be raised at the stage of appeal for the first time. Ld.counsel for respondent has supported the impugned judgment and decree, stating that it has been passed after due appreciation of testimony of witnesses and material on RCA No.20/08 7 record.
9 I have carefully considered the Trial Court record including the pleadings of parties, documents proved on record and the testimony of witnesses. I have given my considered though to the written submissions filed by parties and the arguments advanced at bar. 10 Careful scrutiny of plaint and written statement revealed that it was specifically alleged in preliminary objection of written statement that plaint does not disclose any cause of action and is liable to be rejected under order 7 rule 11 CPC and that suit is bad for non joinder of necessary parties as registered consumer was not impleaded. No specific issue was framed by the Ld.Trial Court. Order dt.9.11.06 makes it clear that issues were framed by the Ld.Trial court, while observing that no other issue arises. It has not been recorded that no other issue was pressed by the parties or their counsels. Issue of non joinder of registered consumer and lack of cause of action were material issues which requires decision during the trial. I do not find RCA No.20/08 8 any reason that why Ld.Trial Court does not deem it appropriate to frame the issues on these preliminary objections and decided the same. In my view the judgment and decree passed by Ld.Trial Court suffers from material irregularity which has vitiated the trial. 11 I have gone through the judgment of the Ld.Trial court. Ld.Trial court opted to decide issue no.1 and 2 simultaneously. Issue no.1 was, Whether the plaintiff is found indulged in DAE?(OPD) . Issue no.2 was, whether the demand raised by the defendant is justified and legal? (OPD). In my considered opinion, issue no.1 and 2 were framed in view of the respective pleadings of the parties and both the issues had different sphere. The findings of issue no.1 have some bearings on issue no.2 also. It was for the Ld.Trial Court to first decide, whether plaintiff was found indulged in DAE? If a person is found indulged in DAE, then the impugned bill has to be raised by following procedure established by law i.e. by giving show cause notice and personal hearing. Impugned bill of DAE has to be raised in accordance with the permissible rules, slabs and penalties. After the decision of issue no.1, RCA No.20/08 9 it was for the Ld.Trial Court to examine, whether the demand was raised by defendant in justified and legal manner. It appears that while discussing issue no.1 and 2 simultaneously, Ld.Trial Court inter mixed the sphere of one issue into the another issue while appreciating the evidence of parties. The evidence of parties was not properly appreciated in respect of the sphere and ambit of a particular issue. 12 The question of jurisdiction was not raised in the written statement. I agreed with the contention that question of jurisdiction has to be considered by the court even if it is not raised and the question of jurisdiction may be raised a any stage of proceedings or even at appellate stage. The question of jurisdiction may be on the ground of territorial jurisdiction or the subject matter of the suit. Where the jurisdiction has been specifically barred by a statute, it remains only a question of law and may be considered at any stage. Where the question of jurisdiction is not specifically barred, but is barred by implication, the question of jurisdiction pertaining to the subject matter of the suit may be dependant on the facts of a particular case. In the RCA No.20/08 10 present case, as held by Hon.High Court of Delhi in the case of B.L.Kantru, the jurisdiction of civil court is not all together barred in the disputes pertaining to and within the sphere of Electricity Act 2003. In the present suit, the action of defendant i.e. the inspection report and impugned bill was challenged by he plaintiff on various grounds including that procedure established by law has been followed by he defendant. In respect of the cases of DAE, the jurisdiction has not been specifically barred, but barred by implication. In the context of the case in hand, as the jurisdiction of the civil court was barred by only by implication and not specifically, the jurisdiction of the civil court was not absolutely barred and was dependant on the determination of factual issue "Whether the procedure established by the act and rules therein has been properly implemented". I am of the view that in the context of the present suit, the question of jurisdiction was a mixed question of law and fact which requires determination after appreciation of evidence. 13 Careful scrutiny of the impugned judgment makes it clear that Ld.Trial Judge has not considered the evidence as a whole. Some part RCA No.20/08 11 of the testimony of witnesses has been relied, whereas the other parts has been completely ignored. Principle of appreciation of evidence is that evidence has to be weighed and not to be counted. During appreciation of evidence, court has to consider the evidence as a whole considering the inherent strengths and weaknesses of the testimony of witnesses. It is not permissible to split the evidence and to rely one portion of the evidence of the same witness by ignoring the other portions of the testimony all together and that to out of the context. In my opinion, the confusion has also been created due to simultaneous discussion of issue no.1 and 2 as the sphere and ambit of one issue has over laped the other issue.
14 In view of the above findings, in my opinion, the impugned judgment and decree is not sustainable in law and matter requires fresh consideration of Ld.Trial Court. Accordingly, the impugned judgment and decree dt.3.3.08 passed by the Ld.Trial Court is set aside with the direction that case be remanded back to the Ld.Trial Court for fresh consideration (after reframing of issues and giving opportunity to the RCA No.20/08 12 parties to lead additional evidence etc) and without being influenced by the observation of this court. Trial court record be sent back for the compliance along with the copy of the order. No order as to cost. Appeal file be consigned to R/R after due compliance.
(SANJEEV JAIN) Additional District Judge:Delhi (Central District) Announced in open court on 29.01.10 RCA No.20/08 13