RSA No. 2882 of 1985 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 2882 of 1985 Date of Decision : 01.09.2010 Punjab State Electricity Board .......... Appellant Versus Sham Lal & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sukhbir Singh, Advocate for the appellant. ***** VINOD K. SHARMA, J. This is defendants regular second appeal against the judgment and decree dated 10.5.1985, passed by the learned Addl. District Judge, Faridkod, vide which suit filed by the plaintiff was decreed. The plaintiff / respondent filed two suits, one for permanent injunction restraining appellant from continuing the disconnection of electricity connection No. MS-14 with a prayer for mandatory injunction for restoration of connection. The regular second appeal filed against the decision in said suit is dismissed as having been rendered infructuous, as the electric connection stood restored. The second suit filed by the plaintiff / respondent was for declaration that the payment of ` 73117.76ps (Rupees seventy three RSA No. 2882 of 1985 -2- ***** thousand one hundred seventeen and paise seventy six only) demanded by the SDO, North Sub Division, PSEB, Moga vide memo No. 1851 dated 30.4.1981, was illegal and void, with a consequential relief of permanent injunction restraining the defendants from disconnecting the supply of energy of appellant, for non-payment of the demanded amount. The pleaded case of the plaintiff / respondent was that the defendants / appellant had put a cupboard for the meter , which was fixed in the wall. The meter cupboard was locked, and the key of the cupboard remained in the custody of the defendants / appellant. The staff of the defendants / appellant including the Line Superintendent used to visit the premises for taking the reading of the electric meter and for checking etc. The rice shelling season for the purpose of which the connection was provided to the plaintiff / respondent started in the month of October, and November and December were the peak months. The season came to an end in the month of February/ March. The bills received by the plaintiff / respondent were paid regularly. Ram Kishan, brother of the plaintiff also had an independent connection of energy supply against account No. MS- 31, who filed a suit against the appellant / defendants. On account of filing of the suit by the brother of the plaintiff, the appellant / defendants on 12.9.1980 came to the premises of the plaintiff and without any reason removed the meter RSA No. 2882 of 1985 -3- ***** and disconnected the supply. The plaintiff / respondent, therefore, filed a suit for mandatory injunction for restoration of the supply of energy. On an application moved by the plaintiff / respondent, temporary injunction was granted directing the defendant / appellant to restore the supply, which was restored on 16.9.1980. The case of the plaintiff was that in order to pressurise the plaintiff / respondent to withdraw the suit, the S.D.O. North Sub Division i.e. defendant No.2 in the suit, sent a bill for recovery of ` 73117.76ps (Rupees seventy three thousand one hundred seventeen and paise seventy six only) by alleging theft of electricity. The plaintiff denied the allegation of theft. In the written statement, the defendants / appellant raised a preliminary objection, that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. The suit against Executive Engineer and S.D.O. was not maintainable. It was admitted that the electric connection was sanctioned to the respondent / plaintiff. It was also admitted that the steel cupboard was supplied by the appellant / defendants for the electric meter; and that it was fixed in the wall. It was also admitted that the cupboard was locked by the appellant / defendants, and that its key was with them. However, the stand was that the cupboard was supplied for the safety of the meter, and that a duplicate key could be got prepared from the market. The stand of the defendants / appellant was that the RSA No. 2882 of 1985 -4- ***** premises of the plaintiff / respondent were raided by the Flying Squad and he was found stealing the energy, by providing fake seals of M&T Laboratory. The bill was said to be in accordance with law. The plaintiff / respondent filed replication to the written statement, wherein while reiterating the averments made in the plaint, the stand of the defendants / appellant taken in the written statement was denied. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the impugned bill issued by the defendant is illegal and void ? If so, to what effect? OPP 2. Whether the suit is barred under Order 2 Rule 2 CPC ?OPD 3. Whether the present suit is not maintainable ?OPD 4. Relief.” The learned trial Court decided issue No.1 against the respondent / plaintiff, whereas issue No. 2 was decided in favour of the plaintiff and against the appellant / defendants. Issue No.3 was not pressed. In view of finding on issue No.1, the learned trial Court dismissed the suit. On appeal, the learned lower appellate Court, in view of the pleadings, the evidence and arguments raised, came to the conclusion that the controversy in the case related to the alleged theft of energy by the plaintiff / respondent. The learned lower appellate Court concluded, that the RSA No. 2882 of 1985 -5- ***** stand of the appellant / defendant was that on 12.9.1980 the premises of the plaintiff was raided by the Flying Squad of PSEB; and that the plaintiff / respondent was found stealing energy by providing fake seals of M&T Laboratory. This version was denied by the plaintiff / respondent. The learned lower appellate Court held, that as per the stand of the defendants / appellant the premises of the plaintiff / respondent were inspected on 12.9.1980 by Sh. Harpreet Singh Sekhon, Asstt. Executive Engineer (DW2), as he was posted in Flying Squad, Amritsar. In the deposition, he had stated that the outer seal of the meter was broken and the fake seals of M&T Laboratory were fixed. The meter was removed and sealed. The extract copy of the inspection report was placed on record as Ex. D.A., wherein it was mentioned that the M.C.B. Seals /CT seal were missing, M.C.B. Glass was found to be broken. KWH/paper seals were found broken and the M&T seals of KWH meter were found fake. The learned lower appellate Court on appreciation of oral and documentary evidence held, that in the report it was nowhere mentioned that the plaintiff / respondent was stealing the energy. The learned lower appellate Court further observed, that he did not depose about the theft. It was noticed, that while in Ex. DB, copy of letter addressed to S.D.O. North Sub Division, Moga, it was reported by Harpreet Singh, that the plaintiff was found indulging in theft of electricity by providing fake M&T seals, but in view of the evidence RSA No. 2882 of 1985 -6- ***** led before the Court it was difficult to believe that the plaintiff was stealing energy. The learned lower appellate Court also did not accept the version, that the plaintiff / respondent was found stealing energy, as there was nothing on record to show that as to what was the specimen of the seals, fixed by the laboratory. The learned lower appellate Court held, that when the specimen of original seals were not forthcoming and furthermore, the version of Harpreet Singh was not supported by any other witness, it could not, therefore, be accepted. The learned lower appellate Court further held that as M&T seals were fixed in the laboratory, it was imperative to send the meter to the laboratory for test to inspire confidence. The learned lower appellate Court further observed that even though the Executive Engineer was authorised by the Department to check and report about the theft of energy, but his sole statement could not be held sufficient to come to a conclusion that energy was being stolen. The learned lower appellate Court also held that the meter though removed from the premises, was not sent to the laboratory for test. The learned lower appellate Court on appreciation of evidence observed, that when the witnesses were unable to give the specimen of the seal affixed, it was, therefore, necessary to get the meter tested, from the laboratory as the laboratory could have compared the two seals, to record a finding in support of the allegations. RSA No. 2882 of 1985 -7- ***** The learned lower appellate Court also held that it was not disputed that the meter fixed in the steel cupboard was locked by the officials of the department and that the key was in their possession. The plea of the defendants / appellant, that duplicate key could be prepared, was not proved, as it was not supported by DW-1, wherein he deposed that he had been checking the meter quite often and he did not find any fault with cupboard. The learned lower appellate court, thus, came to the conclusion that the allegations were not proved. The learned lower appellate Court also observed, that in case the allegations of tampering with the meter or fake seal, was true, then it could have not escaped the notice of Sukhdev Yadav, S.D.O., PSEB, who appeared as DW1, and did not support the allegations. Finding was, thus, recorded that the allegations of theft were also not proved, as per instruction No. 201 of the Sales Manual. The contention of the learned counsel for the defendants / appellant, that presumption was required to be drawn against the plaintiff was not accepted, for the reason, that the defendants / appellant had failed to prove their version by leading cogent and reliable evidence. The learned lower appellate Court reversed the finding of the learned trial Court, and held that it was difficult to believe, that the fake seals were fixed by the plaintiff / respondent. The finding of the learned trial Court, on issue Nos. 5 & 7, RSA No. 2882 of 1985 -8- ***** in the suit for injunction were reversed. The impugned bill in the suit for declaration, was held to be illegal, and the finding of the learned trial Court on issue No.1 was also reversed. The appeal was accepted and the suit filed by the plaintiff / respondent was decreed. Mr. Sukhbir Singh, learned counsel appearing on behalf of the appellant contended that this appeal raises the following substantial question of law for consideration :- “Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of oral and documentary evidence, thus, perverse? In support of the substantial question of law, the learned counsel for the appellant contended, that it was admitted case that the meter was checked in the presence of the consumer, wherein seals were found broken and fake seals were found fixed thereon. In addition to the inspection report, the defendants / appellant had also placed on record the data of consumption of electricity which proved the allegations of theft. The contention of the learned counsel for the appellant was, that presumption of truth was attached to the official acts, therefore, the finding of the learned lower appellate Court by not relying upon the statement of the officer, who checked the meter, could not be sustained. It was also the contention of the learned counsel for the appellant that in absence of allegations of mala fide against an officer RSA No. 2882 of 1985 -9- ***** who raided the premises, the presumption was required to be drawn against the consumer, and in favour of the Board, to uphold the penalty imposed for theft of energy. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The learned lower appellate Court is final court of facts. This Court in regular second appeal can interfere with the findings of the learned appellate Court only in case the findings recorded are perverse or outcome of misreading of evidence or that the conclusion drawn by the learned lower appellate Court on appreciation of evidence could not be accepted. In case two views are possible, then also, it is not open to this Court to interfere with the findings recorded by the learned lower appellate Court. In the case in hand, it may be observed, that though the officers of the defendant / appellant, had checked the meter, but admittedly the meter was not sent to the laboratory to prove the tampering of the seal. The original seal or the specimen thereof was not produced in Court for the purpose of comparison to find out, if the M&T seals were fake. The oral evidence of the defendants was also not consistent as the version given by DW2 was not supported by DW1. The presumption of truth to the official act is rebuttable presumption. Once evidence led in support of the official act was such which could not be believed, no presumption could be drawn against the positive evidence on record. RSA No. 2882 of 1985 -10- ***** The learned lower appellate Court rightly held that there was no corroborative evidence, and no reasons were given as to why the meter was not sent to the M&T laboratory for inspection and report. The learned appellate Court also held that it was admitted case, that the meter was under lock and key, which was with the department, but no evidence was forthcoming in support of the allegation that the duplicate key could be prepared. The contention raised by the learned counsel for the appellant, therefore, can not be accepted and consequently, the substantial question of law is answered against the appellant and in favour of the plaintiff / respondent. In view of the finding recorded above, the substantial question of law does not arise in this appeal or in the alternative is answered against the appellant. This appeal being without any merit, is ordered to be dismissed, but with no order as to costs. 01.09.2010 (VINOD K. SHARMA) 'sp' JUDGE