Patna High Court
The Bihar State Electricity Board And ... vs Jawahar Lal And Ors. on 5 April, 1976
Equivalent citations: 1977(25)BLJR63, AIR 1976 PATNA 323
ORDER B.D. Singh, J.
1. This application under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') by the Bihar State Electricity Board and the Patna Electric Supply Undertaking through its Resident Engineer, is directed against an order of the learned Additional Subordinate Judge passed by him in appeal granting injunction restraining the defendant-petitioners from realising electrical charges according to revised tariff rates.
2. The plaintiffs-opposite party Instituted Title Suit No. 124 of 1975 in representative capacity on behalf of other consumers of Patna town within the limits of the Patna Municipal Corporation under Order 1, Rule 8 of the Code for declaration that the tariff dated the 25th July, 1975, notified by defendant-petitioner No. 1 and enforced from the 15th July, 1975 is illegal, ultra vires, unconstitutional, arbitrary, against public policy and the principle of natural justice and equity and for permanent injunction restraining the Bihar State Electricity Board and the Patna Electric Supply Undertaking, defendant-petitioners Nos. 1 and 2 respectively, and their employees from realising charges at enhanced rates for consumption of electrical energy fixed charges and rental for meters as per items indicated in the tariff under the notification dated 25-7-1975, effective from 15-7-1975, from the plaintiffs and the consumers of Patna.
3. The plaintiffs-opposite party's case, in brief, is that they are consumers of electrical energy provided by the defendants-petitioners. Originally electric energy used to be supplied to the opposite party by the Patna Electric Supply Company Limited under the provision of the Indian Electricity Act, 1910, and the Indian Electricity (Supply) Act, 1948 under a written contract. The petitioners took over management of the Patna Electric Supply Company Ltd. in 1974 and up to 14-7-1975 the petitioners supplied electric energy to the opposite parties at the old rate. The petitioners enhanced the rates of electric charges at a very high rate with effect from 15-7-1975, which, according to the opposite parties, is arbitrary, illegal, without jurisdiction, unreasonable and unwarranted. Initially when the suit was instituted, ad interim injunction restraining the petitioners from realising electrical charges at the enhanced rates was granted by the trial court and they were asked to show cause as to why ad interim injunction granted in the case should not be made absolute. Thereafter, the petitioners filed their show cause stating therein that electric charges were legal and reasonably enhanced and the opposite parties could not challenge the same. They further contended that the opposite parties had no prima facie case, balance of convenience was in favour of the petitioners and no irreparable loss would be caused to the opposite parties if no injunction was granted. Along with the show cause application the petitioners had also filed a copy of the agreement, marked Annexure 'A'.
4. The trial court after hearing the parties and on perusal of Annexure 'A', prima facie, found that the petitioners could enhance the rate from time to time. According to the trial court, under Section 49 of the Indian Electricity (Supply) Act, 1948, (hereinafter referred to as 'the Act') also the petitioners could enhance the rates. Those facts were admitted by the plaintiff-opposite parties as well. The trial court, however, observed at the stage of hearing the application under Order 39, Rule 2 of the Code that it was very difficult to prejudge that the increase in the tariff was reasonable. It found that no doubt the plaintiffs-opposite party had got prima facie case, as, according to calculation of the plaintiffs, the increase was 200% to 1200% and in its opinion the rise in cost of fuel, oil, wages etc. had not gone at such a high rate in order to justify the enhanced rate of tariff as notified by the petitioners. It also found that it was the admitted case of the parties that the order of enhanced rate had also come into effect and the plaintiffs-opposite parties had also paid electric charges at the enhanced rate before filing of the suit. Therefore, according to the trial court the balance of convenience was in favour of the defendants-petitioners and not in favour of the plaintiffs-opposite parties'. According to it the plaintiffs would suffer no irreparable loss if no injunction was granted. The loss, if any to them could be measured in terms of money, which could be compensated in terms of money in case of their success in the suit. Ultimately, the trial court found that it was not a fit case for granting injunction and therefore, it vacated the ad interim injunction, which was previously granted.
5. Aggrieved by the order of the trial court the plaintiffs-opposite parties filed an appeal. The lower appellate court by its order dated 13-2-1976 differed from the view taken by the trial court with regard to the balance of convenience It will be relevant to quote parpgraphs 19 and 20 of its order in this regard.
"19. The impugned notification is very silent on this point as to under what circumstances the tariff rates were revised and enhanced to such an extent. The Board does not say that they are not able to meet the expenditure out of the charges realised on the old prevalent rates. So the financial position of the Board does not appear so that there will be chaos and confusion and mismanagement, in case they are asked to presently manage the affairs with the old rates. In case the respondents succeed in this suit they will have got no difficulty in realising the arrears. It was argued on the side of the respondents that the appellants may make payment of the bills under enhanced rates on protest and that will be adjusted subsequently. In my view it is impracticable that consumer of Patna town will make payment on protest, There will be mismanagement of accounts when the appellants succeed in the suit, it will be difficult to adjust the same. Besides, the fixed charges are not adjustable. On one hand I find irreparable injury to the consumers of Patna town and suffering of common man and on the other hand the Board can manage its own affairs with the income out of the charges on old rates.
20. I must, therefore, hold that the irreparable loss and balance of convenience also be in the favour of the appellants and not in the favour of the respondents."
6. Learned Solicitor General appearing on behalf of the petitioners has assailed the appellate order and raised the following points for consideration by this Court.
(i) The issue raised in the suit by the opposite party was not justiciable. In other words the suit itself was not maintainable.
(ii) The Bihar State Electricity Board was not merely faced with the problem of rising cost of supply of electric energy in Patna Town alone, to whom the opposite party is alleged to have been representing in the suit, but the whole State of Bihar.
(iii) The learned Subordinate Judge has erred in granting injunction under Order 39, Rule 1 of the Code, ignoring the well-settled principle that injunction is not granted in those cases where the loss or damage, if caused, can be measured in terms of money; and
(iv) The lower appellate court had virtually decided the issue involved in the suit and erred in recording its finding at the very initial stage of the suit while considering the question of injunction.
7. I will now take up for consideration the submissions of the learned Solicitor General under points Nos. (i) and (ii) together, as they are inter-related. He emphasised that from the various provisions of the Act it is clear that they do not create any justiciable right. The object of the Act, as is apparent from the preamble, is to provide for the rationalisation of the production and supply of electricity, for taking measures conducive to electrical development and for all matters incidental thereto. The Act extends to the whole of India (except the State of Jammu and Kashmir). Section 3 thereof deals with the constitution of the Central Electricity Authority. Section 5 of the Act provides for constitution and composition of State Electricity Boards. Section 18 lays down the powers and duties of the State Electricity Boards. It would be useful to extract the provisions of this section below :
"Subject to the provisions of this Act, the Board shall be charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee and without prejudice to the generality of the foregoing provisions it shall be the duty of the Board--
(a) to prepare and carry out schemes sanctioned under Chapter V;
(b) to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act;
(c) to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply."
Learned Solicitor General pointed that the words 'within the State', occurring in Section 18, indicate that the Board has to face with the problem of rising cost of supply of electric energy not in the Patna Town alone but in the whole State of Bihar. Section 20-A of the Act deals with the power to acquire projects etc., on lease. Section 28 provides for preparation of schemes by the Board. Section 49 of the Act makes the provision for the sale of electricity by the Board to persons other than licensees. It will be relevant to quote the provisions of this section in extenso.
"(1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs.
(2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely:--
(a) the nature of the supply and the purposes for which it is required;
(b) the co-ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee;
(c) the simplification and standardisation of methods and rates of charges for such supplies;
(d) the extension and cheapening of supplies of electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
(4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person."
Section 59 of the Act deals with the general principles for the Board's finance. Section 60 provides for the Board to assume obligations of State Government in respect of matters to which the Act applies. Section 76 provides arbitration clause.
8. The Solicitor General, in order to find support to his contention to the effect that the enhancement of tariff by the Board under Section 49 of the Act was not justiciable, relied on Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. (AIR 1963 SC 1128), wherein the provisions contained in Section 49 along with Sections 60 and 76 of the Act came up for consideration. He drew my attention to paragraph 11 at pages 1135-36 where it was observed that their Lordships were un-able to accept the argument advanced on behalf of the respondents of that case that the expression 'subject to the provisions of this Act' occurring in Section 49 attracted Section 76. Section 49 seemed to give the Board a right to supply electricity to any person not being a licensee upon such terms and conditions as the Board might from tune to time fix having regard to the nature and geographical position of the supply and the purposes for which it was required. The proviso to the section stated that in fixing any such terms and conditions, the Board should not show undue preference to any person. Their Lordships further held that they were unable to agree with the learned counsel for the respondents that the section contemplated that the consumers might raise a dispute with regard to the terms and conditions and on such a dispute being raised it should be determined by arbitration as required by Section 76 (1) of the 1948 Act. The expression 'Subject to the provisions of this Act' merely meant that if there were any provisions regulating the Board in the matter of supplying electricity to any person not being a licensee, then the supply by the Board would be subject to those provisions. No provision had been brought to the notice of their Lordships 1 which regulated the Board in the matter of the charges which it might fix for the supply of electricity. It had been also argued before their Lordships that the expression having regard to the nature and geographical position of the supply and the purposes for which it is required indicated that a dispute might arise between the Board and the consumer of electricity in the sense that the consumer might allege that in fixing the charges for the supply of electricity the Board had no regard to the nature and geographical position of the supply and the purposes for which it was required. The expression 'have regard to' or 'having regard to' had been the subject of judicial interpretation. In Ryots of Garabandho v. Zamindar of Parlakimedi, 70 Ind App 129 = (AIR 1943 PC 164), their Lordships of the Privy Council dealt with the meaning of the expression at page 168 of the report (Ind App) = (at p. 189 of AIR). They said :
"The view taken by the majority of the Collective Board of Revenue in making the order dated October 19, 1936, which is now complained of, is that the requirement to 'having regard to' the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration."
Their Lordships, therefore, thought that that expression contemplated that a consumer of electricity could raise a dispute as against the Board on the footing that the Board did not pay the due regard to the nature and geographical position of the supply and the purposes for which it was required.
9. In my view, the above observations of their Lordships do not support the contention of the learned Solicitor-General that in the instant case the issue involved before the trial court was not justiciable. It may be noticed that their Lordships were dealing with the arbitration clause as contemplated in Section 76 of the Act, as also the provisions of Section 49 which stood prior to the amending Act 30 of 1966. Reference may be made to Maharashtra State Electricity Board v. Kalyan Borough Municipality, (AIR 1968 SC 991) corresponding to (1968) 3 SCR 137. In that case appellant Maharashtra State Electricity Board, which took over the supply of electrical energy from the original licensee, increased the tariff and fixed a uniform tariff for all its consumers. The respondents-consumers filed petitions under Article 226 of the Constitution, contending that (a) Section 49 of the Act did not permit the Board to frame uniform tariffs for consumers in compact areas as well as consumers in sparse areas, so as to require the former to pay a part of the cost involved in the supply of electricity to the latter; and (b) if Section 49 gave such power to the Board it was ultra vires and void, as it offended the provisions of the Constitution. The High Court allowed the Writ Petitions. Thereafter the Board filed appeals to the Supreme Court and during their pendency Section 49 was amended retrospectively by the Electricity (Supply) Amendment Act 1966 and by Section 24 of the Amendment Act the imposition and collection of charges under Section 49 was validated. Section 79 of the Act provides power to make regulations, Clause (j) whereof provides for the principles governing the supply of electricity by the Board to persons other than licensees under Section 49. Their Lordships of the Supreme Court in that case at page 156 observed thus:
"...... Under Clause (j) of Section 79, the Board has also to make regulations laying down the principles governing the supply of electricity by it to persons other than licensees under Section 49. In our opinion, all these provisions have the effect of properly guiding the activities of the Board, in its dealings with the consumers including the levy of tariffs. Section 49 itself is hedged in by various restrictions and directions which the Board will have to comply in the matter of framing uniform tariffs or in the matter of fixing different tariffs, and that section, also in our opinion, provides a proper guideline for framing uniform tariffs and different tariffs. Therefore, in particular, it may be noted that the extension and cheapening of supplies of electricity to sparsely developed areas under Clause (d) of Section 49 (2) of the Act can only be complied with by keeping the uniform rates at a minimum, consistently with the requirement, under Section 59, of not running at a loss. Therefore, we are satisfied that Section 49 is not in any way, bad on the ground that it gives an un-guided and arbitrary power to the Board to fix its tariffs as it likes."
10. In my view, the above observations of the Supreme Court clearly indicate that Section 49 of the Act does not confer arbitrary power to the Board to fix its tariff as it likes. Therefore, the Court has jurisdiction to examine as to whether on the facts and circumstances of the instant case the increment of tariff was justified or not or whether it was excessive. It will also be relevant to refer the case of Indian Aluminium Company v. Kerala State Electricity Board (AIR 1975 SC 1967) where their Lordships, while dealing with the provisions contained in Sections 49, 59 and 79 (j) of the Act observed that neither of the two sections, namely, Sections 49 and 59, conferred any authority on the Board to override a contractual stipulation as to rates and unilaterally enhance the rates in derogation of such contractual stipulation even if it found that the rates stipulated in the contract were not sufficient to meet the cost of production and supply of electricity and it was incurring operational loss.
11. The learned Solicitor-General has also relied on Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board (AIR 1976 SC 127) where their Lordships were considering Section 49 of the Act and in this connection they were also considering the meaning of the word 'surcharge'. Their lordships observed that the word 'surcharge' was not defined in the Act, but etymologically, inter alia, surcharge stood for an additional or extra charge or payment. Surcharge was thus a superadded charge, a charge over and above the usual or current dues. It was in substance an addition to the stipulated rates of tariff. The nomenclature, therefore, did not alter the position. Enhancement of the rates by way of surcharge was well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. Their Lord-
ships further observed that in view of the decision of the Supreme Court in AIR 1975 SC 1967 (supra) an agreement entered in exercise of the power conferred by the statute, such as under Section 49 (3) of the Act, could not be set at naught by unilateral exercise of power by the Board under the Act to enhance the rates agreed upon between the parties in the absence of any provision in that behalf in the agreement itself. Exercise of power under Section 49 (1) and (2) as also that under Section 59 would remain suspended during the currency of the special agreements between the parties and no unilateral enhancement of rates was permissible under the lew. There was only a pro tempore ban on revision of rates during the subsistence of statutory special agreements entered in conformity with Section 49 (3) of the Act.
12. In my view, the above observation also does not lend any support to the contention of the learned Solicitor-General with regard to non-justiciability of the issue involved in the present case-It may be noticed that the petitioners in the application have annexed a copy of the form of agreement as Annexure '1', Clause 11 whereof reads :
"The undertaking shall be at liberty of any time to alter the demand charges/ energy charges and the minimum guarantee as set out in the schedule hereafter."
Clause 4 of the said agreement deals with the meter charges, etc. Suffice it to mention that this (Annexure '1') is not the copy of the agreement which the consumers had entered into with the petitioners. It is merely a draft agreement, which they propose to be entered into by the consumers and the undertaking. Therefore, it is of no consequence, and it should be ignored, A specimen memorandum of agreement, which was entered into between the Patna Electric Supply Company Ltd. and the consumers was annexed with the show cause, filed by the petitioners in the trial court, and marked Annexure 'A' thereto. Clauses 3 and 4 of the said specimen memorandum of agreement, Which are relevant, are as follows:--
"Clause 3-- The consumer shall pay to the licensee for the electrical energy supplied to him and the other charges at the rate set out in the schedule annexed hereto which shall be taken to form part of this agreement being the rates in force at the time of executing the agreement and he shall be eligible for such rebate from those rates and liable for such surcharge upon them as may from time to time be granted and charged respectively by the licensee to the general public. The consumers shall also conform to the conditions of supply prescribed from time to time in the Licensee's Official Rate Book which shall also be taken to form part of this agreement.
Clause 4-- The supply of the electrical energy shall be registered by a suitable correct meter or meters upon the said premises to be installed and kept in proper order by the Licensee, The consumer shall pay to the Licensee for the hire of each meter provided the monthly rent of......... and for each indicator a monthly rent of......... The consumer may purchase such meter or meters from the Licensee and from and after the purchase thereof the consumer shall be responsible for keeping the same in order. The Licensee's servants shall have access at all reasonable time to the consumer's premises for the purpose of inspecting and reeding meters. Every such reading of each meter shall be entered by the Licensee's servant in a book or card to be attached to such meter and to be open at all times to the inspection of the consumer."
13. Section 18 of the Act lays down that the Board shall be charged with the general duty, inter alia, of supply and distribution of electricity within the State in the most efficient and economical manner. The words 'economical manner' clearly indicate that the enhancement of the tariff by the Board is justiciable. Clause (2) (b) of Section 49 also emphasises that co-ordinated development of the supply and distribution of electricity within the State would be done in efficient and economical manner. Likewise, Clause (d) also lays down the extension and cheapening of supplies of electricity. From those provisions the intention of the Legislature is clear that the Board must pay due regard to efficiency and economy. The learned Solicitor-General had submitted that increase in tariff was necessitated because of rise in prices. His submission is not prima facie acceptable. Both the courts below have held by, prima facie, examining the enhancement in tariffs, as arbitrary and excessive. The lower appellate court has, in paragraphs 9 and 10 of its judgment, given reasons for not accepting that part of the argument. Besides, judicial notice can be taken that the prices of the com-
modities have not only been checked by the State Government, but their prices have considerably fallen to a great relief to the consumers. However, I do not, wish to express my views on the point while dealing with the injunction matter. The question whether the enhancement of tariff is in consonance with the rise in prices or expenditure would be gone into by the trial court after the parties have adduced evidence Whatever observation I have made in this judgment is exclusively meant for the disposal of the injunction matter only.
14. It may be recalled that under point No. (iv) the learned Solicitor-General has also made a grievance that the lower appellate court has virtually decided the issue involved in the suit, and has erred in recording its finding at the very initial stage of the suit. In my view, this submission is not tenable. Whatever observation has been made was meant only for the decision of the injunction matter. In paragraph 15 of the order the lower appellate court has clearly mentioned "...... I am not to give any finding at this stage in the matter of injunction whose scope is limited.........".
15. Now I advert to consider the submission of the learned Solicitor-General under point No. (iii). He contended that the learned Subordinate Judge ought not to have granted injunction in the present case, as in the event of success of the plaintiffs, no irreparable damage would have been caused to them as the payment of enhanced rate of tariff is obviously measurable in terms of money, and that could have been easily adjusted as against future dues payable by the consumers, as it was held by the trial court.
16. Mr. B. C. Ghose, learned counsel appearing on behalf of the opposite party has raised a preliminary question as regards maintainability of the civil revision against the impugned order. He emphasised that in the present case no revision would lie against the impugned order. In order to find support to his contention he has relied on D.L.F. Housing & Construction Co. (P.) Ltd. v. Sarup Singh (AIR 1971 SC 2324) where Dua. J., who delivered the judgment for the Court, in paragraph 7 at page 2327, after having extracted the provision contained in Section 115 of the Code, observed that the mass of reported cases only served to show that the High Courts did not always appreciate the limits of their jurisdiction under that section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-1884) 11 Ind App 237 (PC). The Privy Council again pointed out in Balakrishna Udayar v. Vasudeva Ayyar, 44 Ind App 261 = (AIR 1917 PC 71) that Section 115 was not directed against the conclusions of law or fact in which the question of jurisdiction was not involved. That view was approved by the Supreme Court in Keshar Deo v. Radha Kissen, 1953 SCR 136 = (AIR 1953 SC 23) and had since been re-affirmed in numerous decisions, as observed by his Lordship. It was further held in paragraph 8 of the same decision at pages 2327-28 that the words 'illegally' end 'with material irregularity', as used in Clause (c) of Section 115 of the Code did not cover either errors of fact or of law; they did not refer to the decision arrived at, but merely to the manner in which it was reached. The errors contemplated by that clause related either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors of fact or of law, after the prescribed formalities had been complied with. Mr. Ghose in this connection also relied on Hindustan Aeronautics Ltd., Balanagar. Hyderabad v. Ajit Prasad Tarway (AIR 1973 SC 76). In that case the respondent-plaintiff was serving in the company of the defendant-appellant. The defendant company framed charges against him in respect of certain matters. Pending enquiry of those charges the plaintiff was placed under suspension. Immediately he was placed under suspension, the plaintiff rushed to the court and filed a suit challenging the validity of the enquiry ordered against him. He also challenged the validity of his suspension. He pleaded that the proceedings against him were initiated on malicious grounds. His case was that the General Manager of the defendant Company was inimically disposed towards him and that was the reason for proceeding against him. In the suit he applied for an interim order staying the operation of his suspension as well as the proceedings in the enquiry directed against him. The learned trial Judge issued an interim ex parte order as prayed for by him, but at later stage he revoked that order after hearing both the parties. Aggrieved by that decision, the plaintiff went up in appeal. The appellate court modified the order of the trial court. It directed defendant to refrain from proceeding with the enquiry ordered till the decision of the suit but as regards suspension of the plaintiff it sustained the order of the trial Court. Aggrieved by that decision both the plaintiff and the defendant went up in revision to the High Court of Andhra Pradesh. The High Court accepted the revision petition of the plaintiff but rejected that of the defendant. It stayed the operation of the suspension order as well as the proceedings in the enquiry. It was against that decision that the appeals were filed before the Supreme Court. Their Lordships observed in paragraph 5 of the judgment as follows:--
"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code. See the decisions of this Court in Pandurang Dhondi v Maruti Hard Jadhav, (1966) 1 SCR 102 = (AIR 1966 SC 153) and D. L. F. Housing & Construction , Co. (P.) Ltd., New Delhi v. Sarup Singh, (1970) 2 SCR 368 = (AIR 1971 SC 2324)."
17. Learned Solicitor-General, on the other hand, contended that the above observations of the Supreme Court are not applicable in the instant case. Discretion in granting injunction must be exercised by the court according to the well settled judicial principle and not in an [arbitrary manner. If balance of convenience is not considered by the lower appellate court, according to the well settled principle of law for granting injunction, this Court has ample jurisdiction to interfere under Section 115 of the Code, In order to find support to his contention he has relied on the State of Bihar v. Ganesh Prasad Dube (1969 BLJR 482) where Tarkeshwar Nath, J., while dealing with the provisions contained under Order 39, Rule 2, read with Section 115 of the Code, observed that the lower court must exercise its discretion according to the well settled judicial principles and not act in an arbitrary manner.
Courts should issue injunctions where the right which is sought to be protected is clear and unquestioned, and not, where the right is doubtful and there is no emergency, and further, where the injury threatened is positive and substantial and is irremediable otherwise. Learned Solicitor-General urged that in the instant case, the trial court found that the balance of convenience was in favour of the defendants, as, according to it, the plaintiffs would not suffer irreparable loss if no injunction was granted. The loss, if any, to the plaintiffs could be measured in terms of money which could be compensated in terms of money in case of their success in the suit. On this point, the appellate court came to a different conclusion. It held that in case the Bihar State Electricity Board and others succeeded in the suit, there will be no difficulty in realising the. arrears of tariff at the enhanced rates. It was contended on behalf of the Electricity Board that the consumers of electric energy would very well pay the enhanced rate on protest which would be adjusted subsequently in their bills in case they succeeded in the suit To that contention the lower appellate court observed that it would be impracticable that the consumers of Patna Town would make payment on protest. There would be mismanagement of accounts, and it would be difficult to adjust the same. On the one hand the lower appellate court found irreparable injury to the consumers of Patna Town and suf-fering of common man, and on the other hand it found that the Board would manage its own affair with the income out of the charges at old rates. Therefore, it held that the balance of convenience was in favour of the plaintiffs. The learned Solicitor-General reiterated that the conclusion arrived at by the lower appellate court is not based on the well settled principle of law. According to him, no Injunction should be granted when the loss can be measured in terms of money. Besides, the onus was on the plaintiffs to establish that they would suffer irreparable loss and in the present case the lower appellate court had shifted the onus on the defendants. On that account also this Court has ample jurisdiction for interfering with the order of the lower court under Section 115 of the Code. In order to find support, to his contention he has relied on Bir Babu v. Raghubar Babu (AIR 1947 Pat 469) where it was observed that the correct placing of the onus of proof was a vital point of procedure and en incorrect placing of onus might, therefore, amount to a material irregularity justifying interference under Section 115 of the Code. Similar view was taken in Ramesh Chandra v. H. D. Jain College, Arrah (AIR 1957 Patna 145).
18. On the other hand, Mr. Ghose submitted that the trial court as well as the appellate court has found that the plaintiffs-opposite party have established a prima facie case and they have further found that the enhancement of tariff was excessive. It was only while considering the balance of convenience that the appellate court differed from the view taken by the trial court, and held that the balance of convenience was in favour of the plaintiffs. He submitted that his reasonings for arriving at the said conclusion may be wrong and may not be in accordance with law, even then this Court, in view of the observation made in AIR 1971 SC 2324 (supra), should not interfere. Mr. Ghose pointed out that Dua, J., clearly observed therein that the mass of reported cases only served to show that the High Courts did not always appreciate the limits of their jurisdiction under that section. That goes to show, learned counsel submitted, that the earlier decisions of different High Courts have not laid down good law. After analysing the various decisions of the several Courts Dua, J. had observed in paragraph 8 of the judgment at p. 2327 that it was not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors had relation to the jurisdiction of the Court to try the dispute itself. He submitted that only if the lower appellate court would have failed to consider the balance of convenience, this Court should have interfered under Section 115 of the Code, but, in the present case, it has considered it. It may be wrong in accordance with law but it does not justify the interference under any of the provisions contained in Section 115 of the Code.
19. In my opinion, the submission of Mr. Ghose in this regard is not acceptable. In paragraph 8 of the aforesaid Supreme Court judgment it was held that the words 'illegally' and 'with material irregularity' as used in Clause (c) of Section 115 of the Code do not cover either error of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is urged. The errors contemplated by the said clause may relate either to breach of some pro-vision of law or to material defects of procedure affecting the ultimate decision and not to errors of fact or of law, after the prescribed formalities had been complied with. In the instant case, as observed above, the enhanced tariff is measurable in terms of money and there would be no difficulty in getting the amount so realised from the consumers, adjusted against their future dues in case the plaintiffs-opposite party succeed in the suit. It is well-established principle of Law that the court does not grant injunction under Order 39, Rule 1 of the Code in cases where the damage or loss can be assessed in terms of money. The impugned order of the lower appellate court is contrary to this well-established principle of law. Therefore, in my view, it will be considered as an order with material irregularity. Besides, it has also erred in fixing the onus, as submitted by the learned Solicitor-General. In my opinion however, this civil revision application is maintainable, and the submission of Mr. Ghose in this regard is not acceptable. The finding of balance of convenience by the appellate court cannot be sustained.
20. Mr. Ghose drew my attention to the direction of the lower appellate court to the trial court that it would dispose of the suit as early as possible, preferably within four months of the order, on priority basis. Therefore, he submitted that no prejudice would be caused if status quo is maintained for the period of four months or the said period may be reduced by this Court. In my view, in the present case, status quo is already broken and the lower appellate court was conscious of that fact, as in paragraph 17 of its order, it has observed that the point was not in favour of the defendants that they had started realising charges on revised enhanced rates. Therefore, in my considered opinion, the balance of convenience cannot be said to be in favour of the plaintiffs in the present case.
21. In the result, I allow the application, set aside the impugned order and restore that of the trial court. It is, however, directed that the trial court would decide the suit within three months from the date of the receipt of the record. It is expected that the defendants-petitioners would give full co-operation to the court in disposing of the suit within the stipulated period. In the circumstances of the case, however, I will pass no order as to costs. Let the records be cent down immediately.