R. S. A. No. 1109 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1109 of 2009 (O&M) Date of Decision : September 21, 2010 Jain Mandir Garh Ander Wala .... Appellant Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjay Vij, Advocate for the appellant. Mr. Sudhir Kumar, Advocate for Mr. Narender Hooda, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Plaintiff Jain Mandir Garh Ander Wala, being successful in the trial court but non-suited by the lower appellate court, has filed the instant second appeal. The plaintiff is consumer of electricity from defendant- respondent for agricultural purpose. The plaintiff has been paying its electricity bills. Defendant issued impugned notice dated 16.08.2004 demanding Rs.16,094/- as electricity charges on the basis of alleged R. S. A. No. 1109 of 2009 (O&M) 2 inspection by defendant's officials on 06.08.2004. The defendant alleged that the plaintiff was using extra load of 2.5 BHP against sanctioned load of 5 BHP and the plaintiff was also using the electricity supply for S.P. purpose i.e. sundry purpose attracting higher tariff. Accordingly, defendant levied Rs.3,750/- + Rs.12,344/- i.e. total Rs.16,094/- as charges. The plaintiff challenged the same in the suit alleging that the plaintiff neither used the electricity supply except for agricultural purpose nor used extra load. The defendant controverted the plaint allegations and inter alia pleaded that on inspection, the plaintiff was found using electricity for other purposes and was also found using extra load and the disputed amount has been rightly demanded from the plaintiff. Learned Civil Judge (Junior Division), Ferozepur Jhirka, vide judgment and decree dated 14.02.2008, decreed the plaintiff's suit. However, first appeal preferred by the defendant has been allowed by learned Additional District Judge, Nuh, vide judgment and decree dated 08.12.2008 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiff's authorized person Hem Chand appeared in the witness-box and stated according to the plaintiff's version. On the other R. S. A. No. 1109 of 2009 (O&M) 3 hand, defendant's official Nawab Khan appeared in the witness-box and stated according to the defendant's version and proved photocopy of checking report along with some other documents. The plaintiff has stated that the plaintiff never used extra load nor used electricity supply for any purpose except agricultural purpose. However, there is practically no evidence on behalf of the defendant to depict that the plaintiff used electricity supply for any purpose except agricultural purpose or that the plaintiff was using additional load of 2.5 BHP. Defendant's sole witness Nawab Khan (DW-1) has admitted that he was not present at the time of checking. Consequently, he had no personal knowledge of the aforesaid facts allegedly found on checking by defendant's officials. No witness from the checking party of the defendant has been examined by the defendant without any explanation. Consequently, very strong adverse presumption arises against the defendant. In the absence of evidence of any checking official of the checking party, there is no evidence to depict that plaintiff was using extra load or was using electricity supply for any purpose other than agricultural purpose. Consequently, the plaintiff is not liable to pay the disputed amount. It may also be added that even original checking report has not been produced in evidence by the defendant. Photostat copy cannot be used in evidence. Even the lower appellate court has observed that photocopy of checking report could not be relied upon in the absence of original. R. S. A. No. 1109 of 2009 (O&M) 4 However, learned lower appellate court observed that the plaintiff should have summoned the original checking report. Similar contention has been advanced before me by counsel for the respondent. However, the contention cannot be accepted and the aforesaid approach of lower appellate court is completely erroneous, illegal and perverse and therefore, unsustainable. The original checking report was in possession of the defendant and therefore, defendant was supposed to produce the same, but the defendant has withheld it without any explanation. In addition to it, learned lower appellate court has failed to take it into consideration that no official of the checking party has been examined as witness by defendant to prove its version. The plaintiff got no opportunity to assail the allegation of the defendant that the plaintiff was using extra load or was using electricity supply for a different purpose. If any official of the checking party had appeared as witness, the plaintiff would have got opportunity to cross- examine him to impeach the veracity of version of defendant. However, defendant failed to examine any such witness and therefore, adverse presumption arises against the defendant. It may also be added that in the checking report, it is mentioned that plaintiff was using electricity supply for S. P. purpose, but no purpose for which the plaintiff was allegedly using the supply has been specified in checking report and thus, allegation of defendant in this regard is completely vague and unacceptable. From the aforesaid discussion, it is manifest that defendant has R. S. A. No. 1109 of 2009 (O&M) 5 miserably failed to prove its case that plaintiff was using extra load or was using electricity supply for a different purpose. Consequently, levy of disputed amount by defendant on plaintiff is illegal and unsustainable. Substantial question of law arises for determination in the instant second appeal as to whether finding of the lower appellate court is perverse, illegal and erroneous and therefore, unsustainable. In view of discussion herein before, the said substantial question of law is answered in favour of plaintiff-appellant. As a necessary upshot of the discussion aforesaid, the instant second appeal is allowed and judgment and decree dated 08.12.2008 passed by learned Additional District Judge, Nuh are set aside and judgment and decree dated 14.02.2008, passed by the trial court decreeing the suit of the plaintiff-appellant are restored. However, the parties are left to suffer their respective costs throughout. September 21, 2010 ( L. N. MITTAL ) monika JUDGE