Delhi District Court
Smt. Kripali Devi vs B.S.E.S on 22 February, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No. 59/11
Date of Institution of Appeal : 15.04.2011
Date on which Reserved for Judgment : 01.02.2012
Date of Judgment : 22.02.2012
Case I.D. Number : 02402C0114882011
IN THE MATTER OF:-
SMT. KRIPALI DEVI
W/O SHRI SAMAY SINGH
R/O H.NO. 2885A, BHOLANATH NAGAR,
SHAHDARA, DELHI-110032.
.......Appellant
Versus
B.S.E.S.
YAMUNA POWER LTD.
REGISTERED OFFICE:
SHAKTI KIRAN BUILDING,
KARKARDOOMA,
DELHI. .......Respondent
Judgment:
1. This appeal has been filed against the impugned judgment and order dated
17.02.2011 by which the Ld. Trial Court while rejecting the application of the
appellant / plaintiff under order 39 Rules 1 and 2 CPC also dismissed the suit of
the plaintiff holding that the same was not maintainable before the said Court.
2. Ld. Counsel for the appellant has submitted that the only question which he
sought to raise in the present appeal was that even if the Ld. Trial Court has held
that the suit is not maintainable before it, it ought to have returned the plaint of the
plaintiff under the provisions of Order 7 Rule 10 CPC instead of dismissing the suit
itself.
RCA No. 59/11 Page No. 1 of 6
3. Brief facts that are necessary for determination of the appeal are that the
plaintiff has filed a suit before the Ld. Trial Court praying for decree to declare the
demand of Rs.83,903/- by the defendant as null and void. Plaintiff has prayed for
a decree for permanent injunction to restrain the defendant from disconnecting
electricity supply in his premises through meter no.13747994 installed against
new K NO. 1251V1481093 in premises bearing no. 132, Gali No. 4, Nala main
road, Ambedkar Vihar, Johri Pur Extension, Delhi-94. Plaintiff has further prayed
for decree for mandatory injunction to direct the defendant for installing non
domestic connection / meter in the name of plaintiff against the application already
filed bearing no. N-125004030217 dated 01.03.2004 and demand note no.
24101521.
4. A legal objection was raised by defendant that the Civil Court would not
have the jurisdiction to entertain the suit as the same was barred under Section
135 of the Electricity Act, 2003. Reliance was placed on the judgment of the
Hon'ble High Court in the case of B.L. Kantroo Vs. BSES reported in 154 (2008)
DLT 56.
5. Along with the suit plaintiff had also moved an application under Section 39
Rules 1 and 2 CPC. After hearing the Ld. Counsel for the parties, the Ld. Trial
Court by its judgment dated 17.02.2010 dismissed the application of the plaintiff
for interim injunction. By the said order, Ld. Trial Court also dismissed the suit of
the plaintiff as being not maintainable before the said Court. While coming to the
said finding, Ld. Trial Court relied on the judgment of the Hon'ble High Court in the
case of B.L. Kantroo Vs. BSES (supra).
6. Ld. Counsel for the appellant has argued that the Hon'ble High Court of
Delhi in the case of B.L. Kantroo was pleased to hold that the jurisdiction of the
Civil Court to entertain a Civil Suit challenging the correctness of an electricity bill
was barred by Section 135 of the Electricity Act, 2003. However, the Hon'ble High
Court has held that such Civil Suit could be filed before the Special Court
RCA No. 59/11 Page No. 2 of 6
constituted under Section 153 of the Electricity Act, 2003. Counsel relied on the
judgment of the Hon'ble High Court of Delhi in RFA No. 175/11 decided on
19.04.2011 in which the Hon'ble High Court has so held after considering its
earlier judgment rendered in the case of B.L. Kantroo (supra). Counsel for the
appellant has also placed on record judgment dated 09.12.2011 passed by the Ld.
Electricity Court against which RFA No. 175/11 had arisen.
7. Ld. Counsel for the respondent fairly submits that plaintiff would be entitled
to file a civil suit but such civil suit can only be prosecuted before the Special
Electricity Court which is constituted under the Electricity Act, 2003.
8. I have heard the Ld. Counsel for the parties and have perused the record.
9. Only question which arises in the appeal is whether the Ld. Trial Court was
right in dismissing the suit of the plaintiff or ought to have returned the plaint under
the provisions of Order 7 Rule 10 of the CPC.
10. In the case of Usha Goel Vs. BSES P. No. 197/10 decided on 09.02.2011,
the Ld. PO of the Special Court (Electricity), Karkardooma Courts has held as
under:-
"1. By this order I dispose of the question about the maintainability
of the present petition filed by the petitioner/plaintiff Smt. Usha Goel u/s
154(5) of the Electricity Act, 2003, in view of the preliminary objections
taken by the defendant company in its written statement."
**********
"11. It is thus apparently clear that this Special Court (Electricity) constituted u/s 153 of the Electricity Act, 2003 acts as criminal court as well as civil court while conducting the trial for the offences punishable under Electricity Act, 2003 as well as for determining the civil liability against the accused in such cases. Even in the case of B.L. Kantroo Vs. BSES RPL (Supra) the main question before the court was as to whether aCcivil Court has jurisdiction to entertain the suit for declaration and injunction against an RCA No. 59/11 Page No. 3 of 6 impugned theft bill of electricity and it was held that civil courts have no jurisdiction to entertain such suits and Special Court (Electricity) has jurisdiction to entertain such suit challenging the legality of the impugned theft bill of electricity. The plea raised by ld. Counsel for petitioner that if this court is treated as a civil court, then this court has no pecuniary jurisdiction to entertain the present petition in respect to the present impugned theft bill of electricity to the tune of Rs.23,23,608/- as the jurisdiction of the civil court at district level cannot entertain the suit behind the pecuniary jurisdiction of Rs.20,00,000/-, has no substance because this court being the Special Court (Electricity) is not bound by pecuniary jurisdiction of other ordinary civil courts at district level. Similarly the power of this Special Court (Electricity) to determine the civil liability against the consumer/user in theft cases is not barred by any pecuniary jurisdiction/limitation.
12. In view of my above discussion coupled with the reasons given, I have come to the conclusion that the present petition u/s 15495) of the Electricity Act, 2003 filed by the petitioner is not legally maintainable as it has not been framed in accordance with the rules and regulations of the pleadings as well as the provisions of Civil Procedure Code by filing a suit for declaration along with consequential relief of injunction and that too by paying ad-valorem court fee on the basis of amount of impugned bill. Accordingly, the present petition u/s 154(5) of the Electricity Act, 2003 filed by the petitioner/plaintiff is dismissed as not legally maintainable. Petitioner is however at liberty to file a fresh suit for declaration as well as injunction for challenging the impugned theft bill of electricity raised by the defendant company as well as for determining of her civil liability within 15 days during which period defendant company will not disconnect the supply of electricity at the aforesaid premises of the petitioner/plaintiff. With these observations, RCA No. 59/11 Page No. 4 of 6 this petition filed by the plaintiff/petitioner u/s 154(5) of the Electricity Act, 2003 is dismissed as not legally maintainable. Parties are left to bear their own cost."
11. In the above matter, the Ld. Special Electricity Court after considering the judgment of the Hon'ble High Court of Delhi in the case of B.L. Kantroo has held that a person aggrieved of an electricity bill which was raised under the provisions of Section 135-139 of Electricity Act is entitled to file a civil suit before the Special Court (Electricity) constituted under Section 153 of the Electricity Act, 2003. It was held that the said Court was a Special Court which was vested with the jurisdiction to entertain the civil suits against bills raised on account of theft of electricity and that no other Civil Court can entertain the same.
12. Against the judgment dated 09.12.2011 of the Electricity Court, RFA No. 175/11 titled Usha Goel Vs. BSES Yamuna was filed before the Hon'ble High Court of Delhi. By order dated 19.04.2011, the Hon'ble High Court was pleased to dismiss the appeal. The Hon'ble High Court concurred with the view taken by the Ld. Special Electricity Court and held that a suit for challenging an inspection report and a bill on account of theft of electricity can be challenged before the Special Court constituted under the Electricity Act, 2003 by filing of a civil suit.
13. The present suit of the plaintiff seeks to challenge a bill raised by the defendant on account of alleged theft of electricity by the plaintiff at the suit premises. Jurisdiction of the regular Civil Court to entertain such suit is barred since the same is exclusively vested with the Special Court (Electricity) constituted under the Electricity Act, 2003. The plaintiff ought to have filed his suit before the Special Court (Electricity) constituted under the Electricity Act, 2003. Since the jurisdiction of the regular civil Court to entertain the suit was barred, the Ld. Trial Court instead of dismissing the suit ought to have returned the plaint to the plaintiff for filing before the appropriate Court having jurisdiction. Under the explanation to RCA No. 59/11 Page No. 5 of 6 Order 10 Rule 1 CPC, the appellate Court would also have the power to direct return of a plaint.
14. For the reasons recorded above, the present appeal is allowed to the aforesaid extent. Impugned order dated 17.02.2010 dismissing the suit of the plaintiff is set aside. Plaint of the plaintiff is directed to be returned to the plaintiff under the provisions of Order 7 Rule 10 CPC to be presented before the appropriate Court having jurisdiction.
15. A copy of this order along with TCR be sent back to the Ld. Trial Court.
16. File be consigned to the record room.
Dictated to the Steno and Announced in the Open Court today i.e. 22.02.2012 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA No. 59/11 Page No. 6 of 6