HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.594 of 2010 DT.23.07.2010 Arigela Seshadri. …Petitioner V. The Assistant Divisional Engineer, Operation, SPEPDCL and two others … Respondents The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.594 of 2010 ORDER:- Unsuccessful plaintiff in the Courts below filed this second appeal assailing the correctness of the decree and judgment, dated 31.10.2008, passed by the I Additional District Judge, East Godavari District at Rajahmundry in dismissing A.S.No.103 of 2005, whereby he confirmed the decree and judgment, dated 08.03.2004, passed by the I Additional Senior Civil Judge, Rajahmundry in dismissing O.S.No.36 of 1998. Plaintiff, who is a consumer of electricity, instituted the above suit for declaration that the final assessment order of the Superintending Engineer, Vijayawada as illegal, unlawful, void inoperative against the plaintiff and for a consequential relief of granting perpetual injunction against the defendants, stating that he is the proprietor of M/s.Parvathi Parameswara Rice Mill having electrical service connection No.2888 of Ravikampadu village. The said premises was inspected by the Assistant Engineer on 05.01.1998 and got issued a provisional assessment order alleging that he is utilizing the power supply to his mill from 28.03.1997 to 05.01.1998 even though it was allegedly disconnected previously on 28.03.1997. Therefore, he has to pay an amount of Rs.1,30,149/- + supervision charges of Rs.150/- for that period. The plaintiff was asked to pay 50% of the assessed amount, for restoration of the power supply. Thereby the plaintiff paid a sum of Rs.46,000/- and obtained restoration of power supply to his mill. The plaintiff approached the 3rd defendant and requested for restoration of power supply stating that the plaintiff was incurring heavy loss due to closure of mill. Accordingly, the 3rd defendant allowed the plaintiff to pay Rs.65,075/- in three monthly instalments, as a condition to restore power supply. Thereafter, the plaintiff paid Rs.23,075/- as first instalment and the 2nd and 3rd instalments are payable by 06.03.1998 and 06.04.1998 for Rs.24,000/- for each month, according to the restoration order. He also paid second instalment amount and by paying the 1st instalment itself, the plaintiff obtained the power supply restored to his rice mill. When the 3rd instalment amount is due on 06.04.1998, the above suit came to be filed questioning the provisional assessment order. Pending the suit final assessment order was also passed, basing on which the plaintiff got amended the plaint by filing I.A., questioning the final assessment order and for declaration that the final assessment order of the Superintendent Engineer, in his proceedings dated 09.12.1999, as illegal and arbitrary and to set aside the same. But the trial Court has not reframed issue No.2, which was originally framed as to whether the suit is premature or not. In order to prove the case of the plaintiff, he examined himself as P.W.1 and one more witness as P.W.2 and marked Exs.A1 to A8. One witness was examined on behalf of the defendant as D.W.1 and marked Exs.B1 to B4 documents. The trial Court dismissed the suit holding that the plaintiff, who was aware that the defendants’ authorities are going to conduct enquiry, having known the remedies available to him and without exhausting the said remedies, has simply rushed to the Court basing on the provisional assessment order without waiting for the final assessment order and hence, the suit is pre-mature in nature and not maintainable under law. On appeal being filed, the lower appellate Court held that the observation of the trial court that the suit is premature as the suit is filed questioning the preliminary assessment order passed by the 1st defendant, will not hold water, as the defect of filing the suit on the provisional assessment order was cured by amending the plaint. On due appreciation of the evidence it was further held that after receiving the provisional assessment order from the 1st defendant the appellant made representation before the Superintending Engineer, Assessment, and while the matter is pending adjudication, the suit is filed questioning the provisional assessment order and later the final assessment order was passed demanding payment of Rs.1,30,149/- from the appellant. Plaintiff, who examined himself as P.W.1, filed an affidavit towards his chief-examination narrating all the plaint contents and admitted that if the electricity charges have not been paid, the Electricity Board has got every right to disconnect the service connection. He also admitted that he availed the electricity till November, 1997 without paying the bill and he received the bill from February, 1997, but he has not paid the same due to his financial problems. The version of the P.W.1 was reproduced as under: “It is true that I availed the electricity till November, 1997, without paying the bill. I am receiving bills from February, 1997 to November, 1997, but, I have not paid the same because of financial problem.” For non-payment of the bill, the power supply was disconnected on 05.01.1998 and on service of the provisional notice, he has to pay the remaining instalments as agreed by him. When once the appellant sought indulgence from the Superintending Engineer to pay the amount in instalments, but has not evinced any interest in payment of the amount, he is not entitled for declaration. Holding so, the lower appellate court dismissed the appeal. Questioning the same, the present appeal is filed. Learned counsel for the appellant strenuously contends that when the trial Court gave a finding that the plaintiff has not indulged in any mal-practices in getting the electricity pilfered because there was no disconnection effected to the plaintiff and the meter reading is clearly shown and the C.C. Bills are issued by the defendants’ authorities, regularly every month showing the recording of power consumption, makes it abundantly clear that the plaintiff has not meddled with recording of correct meter reading, which the defendants’ authorities have not questioned and, hence, the same had become final. The lower appellate court having held that the plaintiff has not agitated or questioned about the inspection conducted by the defendants’ authorities, ought not to have observed that without paying the consumption charges for the year November, 1997 itself amounts to mal-practice, which is altogether a new case set up by the appellate court. Having noticed the defect, when the appellant got amended the plaint questioning the final assessment order, the lower appellate court ought to have remanded the matter to the trial court for disposal afresh. I do not see any merit in any of the contentions advanced by the learned counsel for the appellant, in view of the categorical admission made by the plaintiff, when he was examined as P.W.1, as referred to above. The evidence adduced by the department also shows that though the service connection of the plaintiff was disconnected on 28.03.1997, the said disconnection was not recorded in the records relating to E.R.O. and the plaintiff continued to avail the electricity till November, 1997 without paying the bills and accordingly, the authorities recorded the consumption and raised the bills to collect the amounts for the units consumed every month and issued the bills upto November, 1997. The plaintiff, who examined himself as P.W.1, also admitted about the said facts that he availed the electricity till November, 1997, without paying the bills and he received the bills from February, 1997 to November, 1997, but he has not paid the same because of financial problem. Further it was noticed that on the date of inspection i.e., on 05.01.1998 the plaintiff failed to pay the electricity consumption charges from April, 1997 to November, 1997. Basing on the inspection made by D.W.1, who inspected the service connection of the plaintiff, he assessed the loss sustained to the board as Rs.1,30,149/- and sent the same to A.D.E., Operation for taking further action and demanded the plaintiff to pay 50% of the total assessment i.e., Rs.65,700/-. The plaintiff approached the 3rd defendant and requested restoration of the power supply seeking to pay 50% by way of instalment and on payment of the 1st instalment of Rs.23,075/-, the power supply was restored and the 2nd instalment of Rs.24,000/- was also paid, but failed to pay the 3rd instalment and filed the present suit questioning the assessment order. Since the appellant has to pay the actual consumption charges as raised under the provisional assessment for the period from April, 1997 to November, 1997, which admittedly has not been paid by him and sought for indulgence to pay in instalments, he cannot question the final assessment order. In view of the same, the concurrent findings of facts recorded by the trial court, as confirmed by the lower appellate court, do not give raise to any question of law, much less substantial question of law, to be decided in this second appeal. Second appeal fails and is accordingly dismissed. No costs. _______________ A. GOPAL REDDY, J 23rd July 2010 lmv