1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL SECOND APPEAL NO.89/2009 (Shanti Devi Vs. R.S.E.B. & Ors.) Date of order : 13.04.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. S.N. Trivedi, for the appellant. This second appeal has been filed by the plaintiff-appellant against the judgment and decree dated 13.7.2005 passed by Civil Judge (S.D.), Parbatsar in Civil Original Suit No.10/2000 so also against the judgment and decree dated 18.12.2008 passed by Addl. District Judge, Parbatsar in Civil Appeal Decree No.39/2005 whereby the learned Addl. District Judge, Parbatsar upheld the judgment and decree passed by trial Court. The facts in brief are that a civil suit was filed by the plaintiff - appellant seeking declaration and permanent injunction against the respondents wherein it was stated that the plaintiff – appellant was running an ice factory at Khasra No.263 after 2 taking industrial lease under the provisions of Rajasthan Land Revenue Act and the rest of the land of Khasra No.263 is used for agricultural purpose by her son Rakesh Kumar. In the ice factory, there is an electricity connection of power load of 40 HP with 3 phases granted by the respondent - Electricity Board and as per appellant on 21.6.1999, an application was filed by her for increasing the power load of electricity connection from 40 HP to 50 HP and the same was granted by the respondents vide order dated 25.11.1999. For the said purpose, a demand notice was issued but before that plaintiff appellant submitted an application before the resondent authorities on 1.11.1999 intimating her intention to close the factory and accordingly the ice factory was closed w.e.f. 5.11.1999. After closure of the factory, the son of the plaintiff-appellant was utilizing the land for agricultural purpose and he was having electricity connection for agricultural purpose of 10 HP power load and his electricity account number is F-283, which is a separate electricity connection for agricultural purpose. The vigilance committee of the respondents inspected the premises of the factory on 27.11.99 and submitted an inspection report, in the light of which a bill for the month of January, 2000 showing the recovery of Rs.64,773.20 paisa was issued on the basis that one water motor having power of 10 HP was also 3 running in addition to the workload of 40 HP at factory having total consumption of 50 HP without there being any sanction by the respondent – Electricity Department. In the suit, the plaintiff-appellant also challenged the said recovery of Rs.64,773.20 paisa and inspection report, so also prayed for permanent injunction for restraining the respondents not to disconnect the electricity connection of the factory on the ground that factory was closed on 5.11.1999, therefore, so called recovery is illegal. After filing reply to the suit by the respondents, six issues were framed and after recording evidence of four prosecution witnesses and exhibiting 10 documents, the trial Court gave finding that as per the inspection report which was prepared in the presence of son of the plaintiff-appellant, it was found that a motor of 10 HP was in operation at the time of inspection, therefore, the plaintiff's contention cannot be accepted that the factory was closed. The trial Court finally dismissed the suit vide judgment and decree dated 13.7.2005. The said dismissal of suit by the Civil Judge (SD), Parbatsar was further challenged by way of filing first appeal before the District Court and it was decided by Addl. District Judge, Parbatsar whereby the finding given by trial Court was upheld and it has 4 been concluded that in fact the factory of plaintiff – appellant was not closed and plaintiff-appellant was utilizing electricity, therefore, for consumption of electricity, recovery of Rs.64,773.20 paisa was ordered after due inspection by the vigilance committee. I have heard learned counsel for the appellant and perused both the judgments passed by Courts below. The contention of learned counsel for the appellant that burden to prove the issue No.2 was wrongly shifted upon the appellant and in fact, it was to be proved by the respondents is totally baseless because at the time of inspection of factory, the son of the plaintiff-appellant was present and he put his signature upon the inspection report. Therefore, the ground raised by the learned counsel for the appellant has no force of law. Thus, in my opinion, no substantial question of law arises for consideration in this second appeal. Likewise, there is no perversity or illegality in the finding of both the Courts below. Both the Courts below have rightly considered the entire evidence and rejected the plaintiff's suit for quashing the order of recovery. In this view of the matter, I see no reason to interfere with the concurrent finding given 5 by both the Courts below. The findings given by both the Courts below are based upon proper consideration of evidence and documents so also after due application of mind. Accordingly, this second appeal is dismissed. (GOPAL KRISHAN VYAS), J. arun