Punjab-Haryana High Court
Ram Parshad vs Uttar Hayana Bijli Vitran Nigam Ltd & Anr on 27 August, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No. 4480 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 4480 of 2014 (O&M)
Date of Decision 27.8.2014
Ram Parshad
....Appellant
Versus
Uttar Haryana Bijli Vitran Nigam Ltd. and another
....Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. J.K.Goel, Advocate
for the appellant.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAMESHWAR SINGH MALIK J. (Oral)
Having been non suited by both the learned courts below recording concurrent findings of the facts, plaintiff has approached this Court by way of instant regular second appeal.
Brief facts of the case, as noticed by the learned first appellate court in para 2 to 5 of the impugned judgment, are that earlier the plaintiff had filed a complaint No.1040 of 2002 on 04.12.2002 before the learned District Consumer Disputes Redressal Forum, Karnal challenging the notice of assessment issued vide memo No.4143 dated 28.11.2002 for deposit of an amount AMIT KUMAR of 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 2 `57,831/- on account of compensation with regard to mal practice. The learned District Consumer Disputes Redressal Forum, Karnal decided the complaint and set aside the impugned notice demanding an amount of Rs.57,831/- and directed the defendants not to charge the said amount from the plaintiff, vide order dated 03.09.2004. Against the said order, defendants filed first appeal bearing No. 3178 of 2004 on 3.12.2004, which was decided by the State Consumer Disputes Redressal Commission, Haryana, Panchkula vide order dated 22.06.2011 with the observations that as per the provisions of Section 2(1)(d) of the Act, 1986, the plaintiff did not fall within the definition of "Consumer".It was further averred that plaintiff was having one electricity connection bearing A/C No.A-1042 for small power and had been regularly making the payment of the current energy bills, as per consumption recorded by the meter. The premises of the plaintiff were checked by the officials of the defendants on 09.11.2002 and nothing was found abnormal in the meter as well as in the meter seals. They obtained the signatures of the plaintiff on the alleged checking report. On 11.11.2002, the officials of the defendants as per policy, changed the Electro- Mechanical meter with that of Electronic meter. On 28.11.2002, the plaintiff received a notice of assessment bearing memo No. 4143 dated 28.11.2002, wherein it was mentioned that M&T seals were found fake as per M& T Lab report memo No.1075 dated 26.11.2002 and imposed a penalty of `57,831/-. The alleged impugned notice dated 28.11.2002 was illegal, null and void was and not binding upon the rights of the plaintiff on the grounds that the meter was AMIT removed KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 3 from the premises of the plaintiff on 11.11.2002 without any observation in the meter or in the meter seals. The notice has been issued against the terms and conditions of supply, arbitrarily and illegally. Charges of theft of electric energy against the plaintiff was illegal, against the rules and regulations and the notice was issued by the officials of the defendants without giving any chance of hearing. It was further pleaded that after receiving the impugned notice, the plaintiff approached defendant no.2 and requested to withdraw the impugned notice being illegal, null and void, but he did not pay heed to the request of the plaintiff, rather threatened that in case the payment was not made, the electricity supply would be disconnected. Hence, the suit was filed.
On notice, respondents/defendants appeared and filed written statement taking preliminary objection of maintainability; jurisdiction and suppression of material facts etc. On merits, it was pleaded that the premises of the plaintiff bearing A/C No.A-1042SP was checked on 09.11.2002 by Shri Gian hand, A.E.E.(Op) Sub Division, UHBVL Ltd. Taraori headed by Shri T.C.Gupta Xen Sub Urban Division, Karnal alongwith other checking staff and it was observed that the working of meter and genuineness of seals was to be got checked from M&T. The meter was duly packed in cup board and was to be sent in Laboratory through Shri Beer Singh AFM. Disc of the meter was not moving on light load and at the time of checking, the sanctioned load was 10BHP motor 5 lamps, three fans and two television. The checking was done in the presence of Shri Ram Parshad-consumer, who signed on the checking report in token AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 4 of its correctness and also received copy thereof. After the replacement of the meter, the same was sent to the M&T laboratory for verification of genuineness. As per the M&T laboratory report, it was found that seal number was changed and the seals were also found tampered with. On the basis of the M&T laboratory report, notice vide memo No.4143 dated 28.11.2002 was sent to the plaintiff for an amount of `57,831/- as per details given in the Sundry item, but he did not bother to submit any reply which tantamount to acceptance of his liability. It was also pleaded that as per the rules and regulations of the Nigam, the notice was legal and justified. With these pleas, all other facts taken in the plaint were denied and dismissal of the suit was prayed for.
On completion of pleadings of the parties, learned trial court framed the following issues:-
1. Whether the impugned notice bearing memo no.4143 dated 28.11.2002 is illegal, null and void and not binding on the rights of the plaintiff ?OPP
2. If issue no.1 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent injunction thereby restraining the defendants from recovering the amount mentioned in the impugned notice and from disconnecting supply to his premises for non-payment thereof?OPP
3. Whether the plaintiff has no locus-standi and cause of action to file and maintain the present suit?OPD.AMIT KUMAR
2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 5
4. Whether the plaintiff has not come to the court with clean hands and has suppressed the true and material facts from the court?OPD
5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD.
6. Whether the civil court has no jurisdiction to try and entertain the present suit?OPD
7. Relief."
With a view to substantiate their respective stands taken, both the parties led their documentary as well oral evidence. After hearing learned counsel for both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has failed to prove his case. Accordingly, suit was dismissed, vide impugned decree and judgment dated 8.5.2013. Feeling aggrieved, plaintiff filed his first appeal, which also came to be dismissed by the learned Additional District Judge, vide impugned judgment and decree dated 26.5.2014. Hence this second appeal.
Learned counsel for the plaintiff-appellant submits that plaintiff has duly proved his case. He placed on record cogent and convincing evidence, which was sufficient to decree his suit. He further submits that basic principles of natural justice were violated by the respondents, while conducting the checking of the premises of the appellant. He would next contend that at the time of sending the electric meter for checking in the laboratory, no notice was issued to the appellant, thereby causing serious prejudice to him. He relies on the statement on DW2-Mohan Lal, who stated that no notice was AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 6 issued to the appellant at the time of conducting the investigation by the M&T Laboratory. He concluded by submitting that since learned courts below have failed to appreciate the abovesaid material aspects of the matter, impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments, by allowing the present appeal.
Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that plaintiff- appellant did not allege any malafide against either members of the checking party or analyst of the laboratory. As per the checking report, reproduced by the appellant in para 4 of the grounds of the appeal at page 8 and 9 of the paper book, seals of the electric meter were found tampered with, by cutting the lash wire and refixed into the seals with the help of needle and plier like tools. Some adhesive substance was also found applied into the holes of the seals. Hence the seals were also found tampered with.
In the absence of any malafide against either any member of checking party or against analyst of the laboratory, no prejudice can be presumed to be caused to the appellant. AppellantAMIT was the KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 7 plaintiff and onus was on him to prove his case by leading cogent and convincing evidence. However, in the present case, appellant has failed to discharge his onus. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing their respective judgments and the same deserve to be upheld.
A bare combined reading of the impugned judgments would make it crystal clear that each and every aspect of the matter was duly considered and discussed in detail, while passing the impugned judgments and decrees. Even the statement of DW2 would be of no help to the appellant in the given facts and circumstances of the case. In this view of the matter, it can be safely concluded that since the concurrent findings of facts recorded by both the learned courts below were based on sound reasons, impugned judgments and decrees deserve to be upheld, for this reason also.
Before arriving at a judicious conclusion, learned Additional District Judge, rightly re-appreciated the true facts of the case as well as evidence available on record, in the correct perspective, before recording his own cogent findings in para 9 to 15 of the impugned judgment. Relevant findings recorded in para 13 and 14 of the impugned judgment, read as under:-
"It is not in dispute that on 9.11.2012, premises of appellant was checked by checking party headed by T.C.Gupta, XEN, Sub Urban, Sub Division, Karnal as the disc of the meter was not moving. Checking report was purposed at spot and AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 8 after obtaining signature of plaintiff on the same, meter was removed and packed and sent to M&T lab for verification. On testing, seals were found to be tampered. The learned counsel for the appellant has argued that as it was not declared a case of theft immediately at spot, at the time of checking, therefore, no case of theft is made out against him. However, this submission is devoid of merit as at the time of checking, it was a suspected case of theft only and after testing of meter from M&T lab case of theft of electricity was made out and impugned notice (Ex.P3) seeking reply of appellant was served upon him which rather goes to show that opportunity of hearing was also given to the appellant before taking any action against him. Appellant had failed to show any bias or prejudice of respondent's officials against him in any manner. Then, it cannot be said that appellant was not given opportunity of being heard and rules of natural justice were violated.
The next submission of appellant that even if seals were found to be tempered, no case of theft is made out against him as there was no dishonest intention on his part is again meritless as M& T report, Ex.D1, clearly shows that seals affixed on the meter were fake and seals of meter AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 9 body had been tampered by cutting lash wire and re-affixed into same with the help of needle and plier like tools. Number of seals was also tampered. Therefore, it cannot be said that there was no dishonest intention on the part of plaintiff in tempering the meter. Rather, it shows that seals have been deliberately tempered by appellant/ plaintiff. The argument of appellant that meter should have been tested in some independent laboratory, then that of M&T lab of respondent, same is also devoid of merit as per agreement between the parties and rules and regulations of respondent/defendants department, meter is to be checked and tested by M&T Lab of department only."
During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by both the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in Naryanan Rajendran and another Vs. Lekshmy AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document RSA No. 4480 of 2014 (O&M) 10 Sarojini and others, 2009 (2) RCR (civil) 286. Thus, the impugned judgments deserve to be uphled, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 27.8.2014 AK Sharma AMIT KUMAR 2014.09.02 14:08 I attest to the accuracy and integrity of this document