Delhi District Court
Phool Singh vs Bses Yamuna Power Ltd on 31 October, 2007
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IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE : DELHI
D F D F D F DF D F D F D F D F D F D F D F D F D F D F D F D F D F
RCA NO. : 48/06
DATE OF INSTITUTION : 12/10/2006
DATE OF RESERVING THE ORDER : 22/10/07
DATE OF DECISION : 31/10/2007
IN THE MATTER OF :-
D F D F D F DF D F D F D F
PHOOL SINGH,
S/O LATE SH. RICHPAL SINGH,
R/O A-82, NEW SEELAMPUR,
DELHI-110053
.....APPELLANT
VERSUS
BSES YAMUNA POWER LTD.
SHAKTI SADAN, NEW DELHI-110019.
THROUGH ITS CHAIRMAN.
.....RESPONDENT
Contd.....
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O R D E R
DFDFDFDFDF
1. The appellants/plaintiffs have preferred the present appeal against judgment/decree dated 29/4/2006 passed by the Ld. Civil Judge vide which the suit of the appellants/plaintiffs was dismissed. The present appeal has been filed on 12/10/2006.
2. I have heard Ms. Seema Tiwari, Advocate, proxy counsel for Sh. Rajiv Saxena, Advocate, Ld. counsel for appellant and Sh. Ashok Kumar, Advocate, Ld. counsel for respondent/defendant and carefully perused the record. Proxy counsel for appellant has submitted that she is having instructions to argue the matter. I have carefully perused the record, the Trial Court Record as well as the impugned judgment.
3. Ms. Seema Tiwari, Advocate, has submitted that no opportunity was granted to appellant/plaintiff for amendment of plaint and for filing requisite court Contd.....
-3-fee. She has submitted that bills were sent even though the meter is not in connection. The mandatory notice was served. The appellant is illiterate person and the previous counsel did not pay the requisite court fee. In her rebuttal arguments she has submitted that appellant/plaintiff has paid the court fee to his counsel. The brothers of the appellant/plaintiff never wanted to file the suit. For the liability of brothers, appellant/plaintiff is not liable.
4. Ld. counsel for respondent has submitted that there was specific issue, hence, objection was raised by defendant regarding court fee. He has submitted that earlier suit has been dismissed on this ground and that order has not been challenged. The second suit is not maintainable in the garb of present suit. Appellant/plaintiff want reconnection, wherein his two brothers are not party. It has further been argued that declaration has not been sought. No steps have been taken against the Advocate, who allegedly did not affix the court fee.
Contd.....
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5. The original suit was filed on 04/9/2004, praying for the following relief :-
''It is therefore most respectfully prayed that defendant may kindly be directed to restore the electric supply of the plaintiff and also to make inspection of meter and as per reading and consumption issue correct bill to the plaintiff to meet out the ends of justice.
......................''
6. The appellant/plaintiff has averred in the plaint that he had applied for the meter on 23/7/2003 and got connection with meter no.12061927 for domestic purpose. In para 1, 3, 5 & 6 etc. of the plaint, plaintiff no.1 has been mentioned even though in the instant case there is only one plaintiff. As per the averments made in the plaint, the meter was removed without issuance of bill. The electricity was disconnected. The bill for sum of Rs.5,480/- for August, 2004 was received. Para 6 of the plaint mentions that ''plaintiffs'' have not committed any wrong and defendants have never explained any reason to the Contd.....
-5-''plaintiffs'' for disconnection of meter even without sending the bill. As per para 8of the plaint, brothers of plaintiff have filed suit for declaration for getting the bill null and void vide suit no.356/04, but due to non- payment of court fee of the bills the suit was dismissed. That suit was for all the bills raised in the name of plaintiff and his brothers and for declaration the plaintiff had not committed any wrong. He has every right to get the electricity restored.
7. The following issues were framed vide order dated 26/4/2005, passed by Ld. Civil Judge :-
ISSUES
1. Whether the suit liable to be dismissed for want of proper valuation of the suit for the purpose of court fee and jurisdiction?
2. Whether the plaintiff is liable to pay theft bills amounting to Rs.13,905/-, Rs.7,064/-, Rs.28,136/-, Rs.2,001/- and Rs.12,386?
Contd.....
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3. Whether the plaintiff is liable to be dismissed for want of non-joinder of the parties? OPD.
4. Whether the plaintiff is entitled for a decree of mandatory injunction against the defendant?
OPP.
5. Relief.
8. The issues were framed in presence of Sh. Parvinder Singh, Advocate, proxy counsel for Sh. Javed Ashraf, Advocate, Ld. counsel for plaintiff. Issue no.1 is regarding valuation of the suit for the purpose of court fee and jurisdiction. The argument addressed on behalf of Ld. counsel for appellant hence do not have force that no opportunity was granted to the appellant/plaintiff for amendment and filing the requisite court fee. Number of grounds have been taken in appeal but the arguments were on limited grounds, which have been mentioned above.
Contd.....
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9. The careful perusal of judgment reflects that the Ld. Civil Judge has duly dealt with the matter. His observation and interpretation of law is right and clear. The Ld. Trial Court has nowhere erred in recording of his findings.
10. I also rely on the following authorities :-
1. Sarjiwan Singh Vs. Delhi Vidyut Board, 110 (2004) DLT 633 ; 2004 III AD (Delhi) 259
2. Kamleshwar Kishore Singh Vs. Paras Nath Singh & Ors.
VIII (2001) SLT 155
11. In 2004 III AD (Delhi) 259 Sarjiwan Singh Vs. Delhi Vidyut Board, Hon'ble Mr. Justice Vikramjeet Sen has discussed in detail while declaring writ petition and references.
12. Vide para no. 2 of this judgement it has been discussed that:
''Theprovisions of law which are attracted are found in Section 7(iv) of the Court Fees Act. So far as the suit Contd.....-8-
Valuation Act is concerned, what is basically enunciated therein is that the relief for the purposes of the valuation of the Suit must also correspond to the valuation for the purposes of the jurisdiction. So far as Section 7 of the Court Fees'Act is concerned, if it is necessary to seek a declaration before being entitled to consequential reliefs, (in the present case that of an injunction), the valuation would be different to those cases where an injunction simplicitor is prayed for. It is essential in the latter case that no legal obstacle has to be overcome before the injunction is claimed.''
13. In para no. 3 of this judgement Hon'ble Mr. Justice Vikramjeet Sen has referred to Shamsher Singh Vs. Rajinder Prashad and Others, AIR 1973 SC 2384: -
''wherein it has been discussed that the question whether the relief of injunction prayed for by the plaintiff should be considered as a consequential to the main relief or not has to be decided on the basis of the allegations and the prayers contained in the plaint. Mere astuteness in drafting the plaint will not be allowed to impede the Court from looking at the substance of the relief asked for.'' Contd.....-9-
14. In para 6 of this judgement, it has been observed that: -
''Where, however, the plaint does not disclose facts which, prima facie, show the illegality of the demand, the mere filing of a Suit for injunction simplicitor cannot be used as a device to defeat or delay the liability thereby created.''
15. Even in para 6 of this judgement Hon'ble Mr. Justice Vikramjeet Sen has referred to judgement titled Rampur Distillery & Chemicals Co. Ltd. Vs. Union of India passed by Hon'ble Mr. Justice R.C. Lahoti, the then judge, Delhi High Court in the following words: -
''A similar situation had arisen before a learned Single Judge of this Court in Rampur Distillery & Chemicals Co. Ltd. Vs. Union of India, 1995 1 AD (Delhi) 425=1995 (32) DRJ 733. Hon'bleMr. Justice R.C. Lahoti, as his lordship then was, has observed that ''The facts stated in the plaint show the plaintiff having entered into a contract with the Union of India for supplying certain commodity. The contract has failed. The defendant has exercised its right under the risk Contd.....-10-
purchase clause, consequent to which a recovery in an amount of Rs. 5,24,790/- is outstanding against the plaintiff. By filing of the suit the plaintiff seeks to get rid of the contract and also avoid payment of Rs. 5,24,790/- to the defendant. Ad valorem court fee has not been paid by the plaintiff. His lordship went on to hold that the plaintiff is liable to pay Ad Valorem Court Fee. While doing so, reference was made to the effect that in such circumstances there is no difficulty in making a definite valuation so far as the Suit is concerned.''
16. In para 7 of this judgement it has been held that: -
''Where a bill has been raised by the Electricity Department, which is prima-facie legal, a Declaration must be prayed for to the effect that the bill is incorrect or illegal before the Plaintiff can legally pray for an injunction against the recoveries made on the basis of such bills.''
17. Even vide para 2 of the judgement titled Sarjiwan Singh Vs. Delhi Vidyut Board (Supra) his Contd.....
-11-lordship has clearly discussed that so for as Section 7 of the Court Fees Act is concerned, if it is necessary to seek a declaration before being entitled to consequential reliefs, the valuation would be different to those cases where an injunction simplicitor is prayed for.
18. I rely on case titled Kamleshwar Kishore Singh Vs. Paras Nath & Ors. (Supra) decided by Supreme Court of India.
19. R.C. Lahoti & Brijesh Kumar JJ of the Apex Court of the land have also held vide para 7 of this judgement that: -
''It is well settled that the Court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of Court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the Court fees in a manner other than the one adopted by the plaintiff. The court shall begin with an Contd.....-12-
assumption, for the purpose of determining the Court Fees payable on plaint, that the averments made therein by the plaintiff are correct.................................... It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of Court fee ................................... If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for and without which the relief sought for in the plaint as framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit.''
20. Despite framing of specific issue regarding valuation for the purposes of court fee and jurisdiction i.e. Issue no.1, the suit has been valued for sum of Rs.130/- each as per para 13 of the plaint and the court fee in sum of Rs.30/- has been affixed. The requisite court fee has not been paid even though the impugned bill has been raised for sum of Rs.5,480/- with due date 16/8/2004, which has been proved as Ex.PW1/4. The appellant/plaintiff has also not sought declaration qua the impugned bill referred in para 5 of Contd.....
-13-the plaint. The appellant/plaintiff was supposed to specify the details of the bill and to affix the court fee which he failed to do. Moreover the suit for injunction simplicitor in the facts and circumstances of this case is not maintainable, wherein the declaration qua the impugned bill has not been sought.
21. In view of the foregoing reasons, I am of the considered view that the impugned judgment does not warrant interference. The impugned judgment dated 29/4/2006 is upheld.
Accordingly, the present appeal stands dismissed. Parties shall bear their own cost.
Copy of this order be sent along with TCR. Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON : 31st October, 2007 (PINKI) ADDITIONAL DISTRICT JUDGE DELHI Contd.....
-14-RCA-48/06 31.10.2007 Present : Proxy counsel for parties.
Vide my separate order announced today, the present appeal stands dismissed. Parties shall bear their own cost.
Copy of this order be sent along with TCR. Appeal file be consigned to Record Room.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI/ 31.10.2007 Contd.....