IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 901 of 1999 with CIVIL REVISION APPLICATION No. 902 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GUJARAT ELECTRICITY BOARD Versus DINESH RAGHUNATH GAKHER -------------------------------------------------------------- Appearance: MR NK MAJMUDAR for petitioners MR SURESH M SHAH for respondent -------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 18/07/2000 C.A.V.JUDGEMENT 1. These two Civil Revision Applications arise from the same suit though against two different orders passed by the Trial Court. I therefore thought it fit to dispose of both these applications by this common order. 2. The plaintiff-respondent filed Special Suit No. 29/99 in the Court of Civil Judge (S.D.) at Gandhidham. The suit is filed for declaration and injunction. The declaration sought by the plaintiff-respondent to the extent that the defendants-petitioners have no right to disconnect the electricity connection of the plaintiff-respondent without giving notice to the consumer. Further declaration is prayed to the effect that the defendants-petitioners are bound to reconnect/restore the electricity connection of the plaintiff-respondent. 3. The plaintiff-respondent is running Hotel City Plaza in the City of Gandhidham. The respondent-plaintiff claims himself to be a partner in the Hotel. The electricity connection which is given by the Board to the Hotel bears Consumer No. 38103/05709/6. 4. On 11.1.1999, the officers of the Gujarat Electricity Board visited the Hotel and during the course of the inspection they detected a case of theft of electricity and accordingly a supplementary bill was prepared and served upon the plaintiff-respondent. In the laboratory of the Gujarat Electricity Board on checking it is found that in meter there was a big hole on a top cover and it is opined that it was a case of tempering with the meter and a case of theft of electricity energy. The supplementary bill is dated 7.5.1999 for a sum of Rs. 10,52,646.41 ps. 5. The amount of this bill was not paid by the respondent-plaintiff and Board has disconnected the electricity connection of plaintiff-respondent. The suit has been filed by the plaintiff-respondent on 11.5.1999 In paragraph-5 of the plaint, the plaintiff-respondent admitted that the board has issued supplementary bill on 7.5.1999 for Rs. 10,52,646.41 ps. In paragraph -18 of the plaint the plaintiff-respondent prayed for grant of following relief; A. To declare that the defendants have no right, power to disconnect the said connection without serving notice to the plaintiff. B. To declare that the defendants are bound and are under legal obligation to restore the said electric connection. C. To grant permanent injunction ordering the defendants to restore the electric connection of the plaintiff bearing consumer no. 38103/05709/6. D. To pass any order which the Hon'ble Court may deem fit and proper. 6. Along with the suit, the plaintiff-respondent filed an application for grant of temporary injunction and therein the following prayers have been made. A. That the defendants be order to restore the said connection of plaintiff bearing consumer no. 38103/05709/6 till the final disposal of the suit. B. To grant ex-parte ad-interim injunction in terms of para no. 19(a) of above. C. To grant any other relief which the Hon'ble Court made deem fit and proper. 7. In the suit the prayer is not made by the respondent-plaintiff for quashing and setting aside of the supplementary bill. The plaintiff-respondent has also by that time not filed an appeal to the Appellate Authority as provided by Condition No.34 of the Conditions and Miscellaneous Charges for supply of electricity energy. 8. In paragraph no.16 of the plaint the plaintiff-respondent has averred that the disputed bill is about Rs. 50,000/- and as such the Trial Court has peculiar jurisdiction to try and entertain the suit. It is further stated that the suit is filed only for declaration and permanent injunction and the plaintiff-respondent challenges the act of the defendants-petitioners. As such for the purpose of court fees, the suit is valued at Rs. 500 and the Court fees Rs. 50/- is paid on the plaint. To recapitulate the suit is valued, (i) for pecuniary jurisdiction : Rs.50,000/- and (ii) for Court fees : Rs.500/-. 9. On 30th May,1999, the plaintiff-respondent filed an application in the suit and therein the prayer is made that the plaintiff-respondent's meters be referred to Electrical Inspector, Mahesana for checking. 10. On 14th May, 1999, the learned Trial Court decided both the application at Exh.5 and the application for sending of the meter to the Electrical Inspector, Mahesana for checking. The order passed on Exh.5 reads as under : 1. The plaintiff shall filed an appeal for disputed bill mark 4/13 dated 7/5/99 for Rs. 10,52,646.41 before appellate authority of Gujarat Electricity Board in context of para no.13 of suit application within 15 days from today. 2. The plaintiff shall pay an amount of 30% at present in context of disputed bill in three installments by instalment of 10 % monthly each to defendant (Note :- Instalment considering judgment of CMA no.152/93 mark 14/1 of District and Session Judge, Kuttch Bhuj in context of order of Exh.5 are made considering very much submission of Ld. Advocate Shri Alvani for plaintiff). 3. Immediately on payment of first 10% amount by plaintiff to defendant the defendant shall reconnect electricity connection of plaintiff by taking charge of new electricity connection (within three days only). 4. The order of Exh.15 and report or opinion of Electrical Inspector will be binding upon both parties and appellate authority, defendant. 5. If the plaintiff will fail to deposit an amount of 30% of bill in three installments then defendant can against disconnect that electricity connection and no notice will be required to be issued. 6. The electricity connection of plaintiff shall not be disconnected by defendant relating to this disputed bill till decision of appellate authority - Gujarat Electricity Board is taken such order passed below this application. The appellate authority will have to serve order in the manner that both parties are informed about his order. 7. The parties shall bear cost of this application with result of suit. Pronounced this today on dated 14th May,1999 in open Court. 11. The order on the application for referring meter to the Electrical Inspector, Mahesana for checking reads as under : "Plaintiff in connection to application of Mark 4/11 dated 18/1/1999 wants to send disputed Meter for test to Electrical Inspector, Mahesana for that necessary fee should be paid within 3 days for testing and defendant should accept that fee and it is hereby ordered that within 7 days this Meter should be send to Electrical Inspector, Mahesana as per Section 26(6) of Indian Electricity Act. 12. The defendants-petitioners challenge both these orders by filing these two separate Revision Applications. 13. It is not in dispute that these revision applications were filed by the defendants-petitioners in the Court on 21st May, 1999. The matters were placed for preliminary hearing in the Court on 25th February,1999 and notice was issued to the respondent-plaintiff. 14. On 4th February, 2000 these revision applications have been admitted and set for final hearing. 15. Shri S.M.Shah learned counsel for the plaintiff-respondent raised a preliminary objection re: maintainability of the Revision Application no. 901/1999. It is contended that the impugned order is made by the Trial Court under order 39 Rules 1 & 2 of Civil Procedure Code, 1908 and this order is appealable under Order 43 Rule 1(r) of the Civil Procedure Code, thus this revision application is not maintainable. In support of his contention Shri Shah read out Section 115 of the Civil Procedure Code, 1908. It has next been contended that direction given by the Trial Court has already been complied with and hence this Civil Revision Application has become infructuous. It is further contended that the plaintiff respondent has already preferred an appeal before the Appellate Authority and same is pending. Lastly it is contended that 30% of amount of supplementary bill has already been paid by the plaintiff-respondent to the Board and now nothing survives in this civil revision application. 16. Shri N.K.Majmudar learned counsel for the defendants-petitioners contended that the order passed by the Court below is not under Order 39 Rules 1 & 2 of Civil Procedure Code, 1908 but at the best an order under Sec.151 of Civil Procedure Code. In his submission mentioning of the provision of law on the application is not conclusive and final. Learned counsel for the defendants-petitioners submits that on the application Exh.5, the plaintiff-respondent mentioned " an application under Section 39 Rules 1 & 2 read with Sec. 151 of the Civil Procedure Code" and it cannot be taken to be an application only order 39 Rules 1& 2 of Civil Procedure Code, 1908. Shri N.K.Majmudar learned counsel urges that the trail Court has also not said that the order is made under Order 39 Rule 1 & 2 of the Civil Procedure Code, 1908. Shri N.K.Majmudar submits that if we go by the order passed by the trial Court, it is an order not passed under Order 39 Rule 1 & 2 of the Civil Procedure Code, 1908 but an order made under Section 151 of the Civil Procedure Code, 1908. 17. Replying to other preliminary objections raised regarding maintainability of this revision application Shri N.K.Majmudar contends that this Court has not stayed the order of the Trial Court, hence it has to be complied with by the Board. The filing of the appeal before the Appellate Authority and depositing of the amount of 30% of supplementary bill is of no consequence. 18. On merits, the learned counsel for the defendants-petitioner submits that the learned Trial Court has granted relief to the plaintiff-respondent under the impugned order, though prayer for the same was not made by the plaintiff in the suit or in the application Exh.5. Relying on the decision of Division Bench of this Court in the case of Kiran Industries v. Gujarat Electricity Board, Vadodara rendered in 1995 (2) GLR 1158, Shri N.K.Majmudar learned counsel for the defendants-petitioners contended that the Trail Court has no jurisdiction to grant any interim relief in favour of the plaintiff-respondent in this case. Shri Majmudar, in the alternate submits that against the order of the trial court, appeal lie to the District Court and that remedy was not availed of, and not to this court and this revision application is not barred in this Court. In support of his this contention, reliance has been placed by the learned counsel for the petitioner on the decision of the Apex court in the case of Smt. Vidhyavati vs. Sridevi Das reported in AIR 1977 SC 397. It has next been contended that the Trial Court has made out a case for the plaintiff-respondent which otherwise he has not prayed for. Carrying this contention further Shri N.K.Majmudar submits that the Trial Court has exceeded its jurisdiction in giving direction to the plaintiff-respondent to file an appeal before the Appellate Authority and further granted indulgence in the matter to the extent to order for the reconnection of the electricity connection on payment of the 30% of amount of the supplementary bill in three monthly installments of 10% thereof. In his submission, the plaintiff-respondent has not challenged the supplementary bill. The suit has also not been framed to challenge the supplementary bill. The valuation of the supplementary bill was Rs. 10,52,646.41 ps. and the suit was not valued accordingly nor the proper court fees is paid. The suit stated to be for declaration and injunction but otherwise it is a case where the plaintiffs challenging this supplementary bill which admittedly has been received by the plaintiff respondent is not maintainable. Shri Majmudar learned counsel for the defendants-petitioners urges that it is clearly a case of abusing the process of the Court by the plaintiff-respondent. The suit which would have been otherwise of a valuation of Rs. 10,52,646.41. ps. it has made a simple suit of the valuation of Rs.50,000/ for pecuniary jurisdiction and for court fees only of Rs.500/- which clearly exhibits how Court fees is evaded. It is fraud with the Court. 19. Learned counsel for the defendants-petitioners contended that without challenging the supplementary bill the relief of the nature as granted by the Trial Court could not have been granted. The Trial Court has not considered the ratio of the Division Bench of this Court in the case of Kiran Industries Vs. G.E.B. (supra) and in fact this order passed contrary to the decision aforesaid, is without jurisdiction. Lastly, Shri Majmudar submits that the Trial Court has proceed in the matter as if it is sitting there to protect the consumers who committed theft of the electricity energy. In his submission the Trial Court has acted as if it is doing advisory work also and a mandamus has been issued to the plaintiff-respondent to file an appeal. 20. Shri S.M. Shah, learned counsel for the plaintiff-respondent on merits submits that it is the suit against the act of the defendants-petitioners to disconnect the electricity connection of the plaintiff-respondent without notice and accordingly the suit has been filed for declaration and injunction and it is valued appropriately and paid the courts fee thereof. Shri Shah further submits that challenge to the supplementary bill was not necessary. How the suit to be framed, valued and court fees is to be paid is a matter concern of the plaintiff. Otherwise also, Shri Shah submits that all these points have not been raised in the trial court. Relying on the Division Bench decision of this Court in the case of Kiran Industries vs. G.E.B. (supra), Shri Shah urges that the suit is maintainable. However, Shri Shah is unable to justify successfully the order passed by the trial court to grant interim relief. 21. Challenging the order passed by the trial court on application of the plaintiff-respondent for sending meter for checking to the Electricity Inspector, Shri N.K. Majmudar, learned counsel for the defendants-petitioners submits that this order is wholly without jurisdiction. It is not a case of any difference or dispute as to the correctness of the meters of the plaintiff-respondent. This case, Shri Majmudar, contends does not fall under subsection (6) of section 26 of the Indian Electricity Act, 1910. Carrying this contention further, Shri Majmudar, submits that it is a clear case of malpractice or theft of electricity which is certainly not within the purview of Electrical Inspector and it can be taken care of either by the appellate authority in the appeal as provided in Condition No.34 or by the Civil Court. The order of the court below to send the meters for checking to the Electrical Inspector, in his submission, is wholly without jurisdiction. In support of his contention, Shri Majmudar placed reliance on the decision of the Apex Court in the case of M.P.E.B. vs. Smt. Basantibai reported in AIR 1988 SC 71. It has next been contended that the trial court has no jurisdiction to grant the relief which is otherwise not prayed for in the suit. Referring to the plaint, learned counsel for the defendant-petitioner submits that in the plaint, no such prayer has been made and the trial court has exceeded its jurisdiction in granting the relief by way of interim relief, which relief is not prayed for in the main suit. 22. Replying to the contention raised by the learned counsel for the defendants-respondent Shri S.M. Shah, learned counsel for the plaintiff-respondent submits that in appropriate case, the trial court has jurisdiction to pass the order for sending of the meters for checking to the Electrical Inspector where it is satisfied that it is a case of difference or dispute as to the correctness of the meter. 23. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. 24. In para-16 of the plaint, the plaintiff-respondent stated that the disputed bill is of about Rs.50,000/=. This figure has been given out so as to bring the suit within the pecuniary jurisdiction of the court concerned. In some paras, it is averred that the suit is filed only for declaration and permanent injunction and the plaintiff has challenged the act of the defendant, as such for the purpose of court fees the suit is valued of Rs.500/- and court fees stamp of Rs.50/- is paid on the plaint. In the plaint, the plaintiff-respondent nowhere made any prayer for quashing and setting aside of the supplementary bill. Reference here may have to the pleadings made by the plaintiff-respondent in para-5 of the plaint. In this para, the plaintiff-respondent has admitted as a fact that the defendant-petitioners have considered it to be a case of theft of electricity by the plaintiff-respondent and raised a supplementary bill dated 7-5-1999 for Rs.10,52,642-51/=. Zerox copy of this bill has been submitted along with the plaint. From these admitted pleadings of the plaintiff-respondent, it no more remains in doubt that the supplementary bill was served upon the plaintiff-respondent before the date on which the suit has been filed by him in the court. The plaintiff-respondent was also known of the fact that the supplementary bill has been raised on detection of theft of electricity by the defendants-petitioners. In para-10 of the plaint, the plaintiff-respondent made a reference to Condition No.34 of Conditions and Miscellaneous Charges of Supply of Electrical Energy and averred that the defendants-petitioners are under a legal obligation to restore the electric connection of the plaintiff-respondent after collecting an amount of 30% of the disputed bill. A right of appeal is provided to the consumer under Condition No.34 aforesaid only in case of malpractice or theft of electricity etc.. From the averments made in para-10 of the plaint it is though stated without prejudice and making no admission, the plaintiff-respondent has taken it to be a case where he has a right of appeal on payment of 30% of the amount of supplementary bill raised, and the defendants may be under obligation to restore the connection. In this case, I find sufficient merits in the contention of Shri Majmudar, learned counsel for the defendants-petitioners that the plaintiff-respondent has made an attempt to abuse the process of the court. The filing of simple suit for declaration and injunction in a case where admittedly supplementary bill has been raised for Rs.10 lacs and odd is clearly an attempt to abuse the process of the court by the plaintiff-respondent. This suit, without making a prayer for quashing and setting aside of this bill, is otherwise not maintainable. Consequential relief has to be prayed for and simple declaration, in the facts of this case was not the proper relief and more so, which could have been granted in the facts of this case by the trial court. It is a deliberate attempt on the part of the plaintiff-respondent to evade the court fees. The suit has been purposely valued at Rs.500/- Not only this, the plaintiff-respondent has tried to misled the court. It is a case where though supplementary bill was of Rs.10 lacs and odd, in para-16 of the plaint, the plaintiff-respondent has stated that the disputed bill is of about Rs.50,000/-. This is absolutely a false averment made by the plaintiff-respondent. It is unfortunate that in the courts, the litigants are taking all liberty and licence to make false statements, averments and pleadings. The reason is very obvious that the courts are very liberal and for this making of false statements, appropriate actions are not being taken against the litigants. Learned trial court has also not taken the care of all these aspects of the matter. The way and the manner in which the suit has been filed before the learned trial court creates serious doubt in the mind of the court that deliberately and purposely this value of the suit has been stated so that the suit may come within the jurisdiction of the court concerned. If it was a suit of value of Rs.500/- naturally it would have gone before the Civil Judge (J.D.). The doubt created in the mind of the court is further fortified from the fact that the interim relief has been granted by the court below in favour of the plaintiff-respondent. Prima-facie it appears to be a case where the learned court below has favoured the plaintiff-respondent for reasons best known to it. It is not the matter of inquiry here, but looking to the facts of this case, deliberately the suit of valuation of Rs.10 lacs and odd has been valued only for Rs.500/- for court fees. For pecuniary jurisdiction it was stated to be a suit for disputed bill of Rs.50,000/- and the order has been passed by the court below. Possibility of deliberate attempt to get the order from the trial court cannot be excluded. At the same time, from the facts of this case and the nature of the orders passed by the court below, the possibility of extending favour to the plaintiff-respondent by the trial court for some extraneous consideration or other reason cannot be excluded. It is suit which is of value of Rs.10,52,646-41 and accordingly the court fees could have been paid on this amount. Learned trial court has not cared to read the plaint and passed the order in favour of the plaintiff-respondent which otherwise he could not have got even where he would have approached to the appellate committee under Condition No.34. This total ignorance shown by the court below in the matter constrains this court to state that it is not a bonafide approach. The suit framed as such is not proper and it should have been valued for Rs.10 lacs and odd and the court fees should have been paid accordingly. It is a matter now to be raised before the court below by the defendants-petitioners and on the same being raised by the defendants-petitioners, learned trial court shall consider the same in the light of the pleadings as well as the observations made in this judgment. The suit, in the facts of this case where admittedly supplementary bill has been raised, for simple declaration and injunction without praying for consequential relief of quashing and setting aside of that bill otherwise prima-facie seems to be not maintainable. However, I am not expressing any final opinion as this point has to be raised by the defendants-petitioners before the learned trial court by filing an application and if such an application is filed, the court shall consider the same in accordance with law. Re: Maintainability of Civil Revision Application No.901 of 1999. 25. I do not find any merits in the contention of the learned counsel for the defendants-petitioners that the order passed by the court below is made under section 151 of the C.P.C.. The order is passed by the court below under Order 39 Rule 1 and 2 of C.P.C.. The application has been filed for grant of temporary injunction. The application has been grated and ultimately the order has been passed. This order passed by the learned trial court is appealable under Order 43 Rule 1 (r) of the C.P.C.. 26. This revision application is not maintainable. Section 115 of C.P.C. empowers this court to call for the record of any case which has been decided by any court subordinate to it in which no appeal lie thereof. Learned counsel for the plaintiff-respondent does not dispute that against this order of the learned trial court, appeal under Order 43 Rule 1(r) of C.P.C. lies to the District court. 27. Here, I may refer to the decision on