IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 38 of 2010 (O&M) Date of Decision: 12.1.2010 Erstwhile H.V.P.N.L. Now U.H.B.V.N.L. and others. ....... Appellants. Versus M/S Bag Poly International Pvt.Ltd. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri K.S.Malik,Advocate for the appellants. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed judgment dated 11.9.2009 passed by the Additional District Judge, Panipat (hereinafter referred to as `the first appellate Court') whereby the appeal of the defendants-appellants preferred against judgment & decree dated 24.11.2008 of the Civil Judge (Senior Division), Panipat (described hereinafter as `the trial Court') was dismissed and the suit of the plaintiff- respondent was decreed with costs. The respondent had filed a suit for declaration and injunction contesting the imposition of penalty of Rs.27,88,923/- by the appellants, R.S.A.No.38 of 2010 (O&M) -2- .... which was justified by them as it was averred that on checking of the meter, theft of electricity was found to have been committed by it and on the basis of which a report was prepared and the order of penalty was passed. The parties went to trial on the following issues:- 1. Whether the suit has been filed by a proper person?OPP 2. Whether the report dated 11.11.1998 and memo No.3353 dated 11.11.1998 are illegal,null and void and not binding on the rights of the plaintiff, as alleged?OPP 3. Whether suit is not maintainable in the present form?OPD 4. Whether plaintiff has no right, title or authority and cause of action to file the present suit?OPD 5. Whether plaintiff is estopped by its own act and conduct from filing the present suit?OPD 6. Whether plaint is vague, indefinite, based upon conjectures, surmises as alleged?OPD 7. Whether the plaintiff has not come to the Court with clean hands, if so, to what effect?OPD 8. Relief. The trial Court partly decreed the suit, but in appeal, the first appellate Court concluded that the report was not proved in accordance with law and consequent penalty imposed upon the respondent was not justified and, therefore, it decreed the suit with costs. Hence, this appeal. Learned counsel for the appellants, while assailing the findings R.S.A.No.38 of 2010 (O&M) -3- .... of the first appellate Court, contended that in the cross-examination, the respondent had admitted the report and, therefore, the conclusion arrived at by it that the report was not proved in accordance with law is incorrect. I have considered the contention of the learned counsel for the appellants and have perused the impugned judgment. In my opinion, the contention of the learned counsel for the appellants is misplaced. The report of checking was merely submitted as Mark-A and was never exhibited. Even though, the Court is not precluded from assessing the impact of this report, yet, in the eventuality of the report not being proved in accordance with law, the first appellate Court was right in discarding the same. The cross-examination of the respondent was not with regard to the report as has been contended by the learned counsel for the appellants , but has been regarding the checking of the meter. The respondent never admitted to the correctness of the report. In such an eventuality, the finding of the first appellate Court that since the report was not proved, the imposition of consequent penalty was unjustified, cannot be termed to be perverse. No substantial question of law arises for consideration of this Court and hence, the appeal deserves to be dismissed. However, it has been stated by the learned counsel for the appellants at the bar that the respondent had contested the imposition of penalty by availing itself of the statutory remedy of appeal which proceedings were not disposed of on account of pendency of the suit. Noticing this aspect of the matter, I am of the view that since the para-meters of proving a document in the Court have not been met with, R.S.A.No.38 of 2010 (O&M) -4- .... this fact necessarily need not be taken against the appellants while determining the matter by the competent authority under the relevant provisions of law in the appeal which has been preferred by the respondent. This observation flows from the concern that if the case of the appellants is found to be correct regarding theft of electricity, then their interest may not suffer because public money is involved in the controversy. The instant appeal is, accordingly, dismissed with the aforesaid observation. All pending civil miscellaneous applications are also dismissed in view of the above. January 12,2010 ( Mahesh Grover ) “SCM” Judge