Punjab-Haryana High Court
Gian Chand vs Sdo Operation Sub Division No.Ii Uhbvn on 18 December, 2009
Author: Sabina
Bench: Sabina
R.S.A.No. 1085 of 2006 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1085 of 2006
Date of decision: 18.12.2009
Gian Chand
......Appellant
Versus
SDO Operation Sub Division No.II UHBVN,
Kaithal and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Rajinder Goyal, Advocate,
for the appellant.
Mr.Sudhir Kumar, Advocate for
Mr.Narender Hooda, Advocate,
for the respondents.
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SABINA, J.
Plaintiff-appellant filed a suit for declaration and permanent injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Kaithal vide judgment and decree dated 14.11.2005. In appeal, the said judgment and decree were set aside by the Additional District Judge, Kaithal vide judgment and decree dated 31.1.2005. Hence, the present appeal by the plaintiff.
Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 1085 of 2006 2
"2. Gian Chand alias Gian Parkash plaintiff pleaded that he is resident of Kaithal and is consumer of the defendants vide domestic connection No.KA-16/2585 at his residence bearing MCK No.597/13, Amargarh Gamri Kaithal. The plaintiff has further pleaded that he received a bill on 9.9.2001 for a sum of Rs.7958/- and vide receipt No.288/5127 the said bill was deposited by the plaintiff. Despite payment of the said bill, plaintiff received another bill dated 10.11.2001 for a sum of Rs.69,218/- and out of this amount, Rs.68591/- were shown as sundry charges. As per the plaintiff, when he made enquiries from defendant No.1, he came to know that sundry charges in the said bill have been transferred from account No.P-1/68-SP in the name of "Gian Metal Foundary" Kaithal. As per allegations of the plaintiff, the firm Gian Metal Foundary, Kaithal is the proprietorship firm of the father of the plaintiff who is still alive and that plaintiff has got no concern with the said firm and that the plaintiff is running his separate business in the name of "New Gian Mental Foundary", Kaithal in another independent building. As such, the plaintiff has got no concern whatsoever with the account No.P-1/68-SP, hence, the claim of the defendants while seeking the payment of sundry charges is illegal, null and void. It has R.S.A.No. 1085 of 2006 3 been further alleged that earlier also a notice of assessment was issued in the name of the plaintiff regarding the same account number and by dint of that notice a sum of Rs.60,667/- were claimed from the plaintiff on account of theft of energy. As per plaintiff, he has filed appeal against the said notice dated 8/11.6.2001 and in that appeal, tol, plaintiff had claimed that he has no concern with account No, P-1/68/SP. The plaintiff has claimed that he is having differences from his father Lal Singh and is residing in separate house bearing MCK No.795/13 whereas his father Lal Singh is residing in the house bearing MCK No.596/13 and as such, transferring of sundry charges pertaining to the account of Lal Singh or the proprietorship firm M/s Gian Metal Foundary, in the name of the plaintiff is wrong and illegal. Hence, by way of the present suit, the decree for declaration and perpetual injunction has been sought to the effect that the notice served by the defendant upon the plaintiff relating the connection No. P-1-68/SP is illegal, null and void and that bill dated 10.11.2001 pertaining to account No.KA-16-2585 demanding sundry charges is illegal, null and void. The plaintiff has further sought perpetual injunction that the defendants be restrained from recovering the sundry charges shown in the bill dated R.S.A.No. 1085 of 2006 4 10.11.2001.
3. The suit was contested by the defendants by filing written statement. In their written statement, the defendants have opposed the claim of the plaintiff on the ground that the suit of the plaintiff is not maintainable in the present form and that the plaintiff has concealed the true and material facts from the Court and that the plaintiff has no locus standi or cause of action for filing of the present suit. The defendants in their written statement have also challenged the jurisdiction of this Court to entertain the present suit on the grounds that al the departmental forums have not been tapped by the plaintiff and without adopting the said procedure, the plaintiff is not entitled to approach civil court for injunction. The defendants have further denied the allegations of the plaintiff qua the fact that the plaintiff has got no concern whatsoever with the firm M/s Gian Metal Foundary, Kaithal having account No.P/1-68-SP. According to the defendants, in fact, the firm M/s Gian Metal Foundary is being run and looked after by the plaintiff himself and the father of the plaintiff Lal Singh is residing with the plaintiff. On 25.5.2001, the premises of M/s Gian Metal Foundary were checked by S.K.Garg, Junior Engineer in the presence of father of the plaintiff and it was found that M R.S.A.No. 1085 of 2006 5 & T seals were tampered with and in this regard, a checking report was prepared on the spot which was duly signed by the father of the plaintiff and on the basis of said checking report, a penalty worth Rs.61,566/- was imposed upon the plaintiff firm M/s Gian Metal Foundary and when the plaintiff failed to pay the said amount, FIR was lodged in the police station City, Kaithal regarding theft of electric energy. As per the defendants, despite the above said efforts, the defaulted amount could not be recovered from the plaintiff and resultantly the said amount was transferred in the account No.KA-16/2585 wherein the proprietor of firm M/s Gian Metal Foundary, Lal Singh is residing with the plaintiff. As per pleadings of the defendants, transfer of penalty in the form of sundry charges in the domestic account of the plaintiff is perfectly legal and that the plaintiff is bound to pay the said amount. With these pleadings dismissal of the suit was prayed for."
On the pleadings of the parties, following issues were framed by the trial Court:-
1. Whether the plaintiff is entitled to injunction sought?
OPP
2. Whether the suit is not maintainable ? OPD
3. Whether the plaintiff has no cause of action to file R.S.A.No. 1085 of 2006 6 the present suit ? OPD
4. Whether the civil court has got no jurisdiction to try and entertain the present suit? OPD
5. Relief.
After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed.
Plaintiff Gian Chand @ Gian Parkash is the son of Lal Singh, proprietor of M/s Gian Metal Foundary, Kaithal. Learned Additional District Judge, in the impugned judgment, has observed that it was proved from the evidence on record that the plaintiff was running the business with his father. The business of M/s Gian Metal Foundary was itself in the name of the plaintiff. The plaintiff had failed to establish that he was residing separately from his father. Learned Additional District Judge further observed that from the evidence on record, it was evident that the plaintiff and his father were living jointly in the same house. The residential electricity connection was in the name of plaintiff Gian Chand. Hence, the plaintiff had to pay the outstanding electricity bills. The finding of fact arrived at by the learned Additional District Judge cannot be interfered with by this Court in appeal.
No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.
(SABINA) JUDGE December 18, 2009 anita