RESERVED HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 14/2006 1. U.P. State Electricity Board At present Uttaranchal Power Corporation Through Executive Engineer Electricity Distribution Division, Roorkee 2. Superintending Engineer through Executive Engineer Electricity Distribution Division, Roorkee Pargana and Tehsil – Roorkee District Haridwar 3. Executive Engineer, Electricity Distribution Division Roorkee, Pargana and Tehsil Roorke District Haridwar ….. Defendants-Appellants Vs. 1. Jagmohan Tyagi 2. Sanjai Tyagi Both S/o Mangat Resident of village Churiala Mohanpur Pargana Bhagwanpur, Tehsil Roorki District Haridwar …Plaintiffs –Respondents 4.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri N.S. Negi, counsel for the appellant and Shri Sharad Sharma, counsel for the respondents. 2 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 25.2.2002 passed by the Civil Judge (S.D.), Roorkee in O.S. No. 27 of 1997 as well as the judgment and decree dated 2.8.2003 passed by the Additional District Judge, Roorkee in Civil Appeal No. 17 of 2002. 3. Second appeal was admitted on the following substantial questions of law:- “1. Whether the court below were justified in granting compensation without appreciating that no such suit was maintainable? 2. Whether the court below was justified in decreeing the suit while the suit is barred under Section 19 and Section 33 of the Indian Electricity Act? 3. Whether the court below was justified in decreeing the plaintiff suit for compensation while on 9 or 10 of Oct. 1996 no any incident took place by falling down the electric wire on the Cane which clearly shows by the complaint registered of Electric Sub-Station, Bhagwanpur? 4. Briefly stated, a suit was filed by the plaintiffs stating therein that the plaintiffs are the owners in possession of the the land khasra nos. 267, 294, 433 and 426/2 having a total area of 9 bigha, 14 biswa and 1 biswansi situate at village Churiala Mohanpur, Pargana Bhagwanpur, Tehsil 3 Roorkee, District Haridwar which has been shown in schedule ‘Aa’ of the plaint. The plaintiffs are the farmers and they grow up the sugarcane as main crop. It has been stated that in the year 1996 there was crop of sugarcane in khasra no. 464 and other khasra numbers which has been shown in schedule ‘Ba’ of the plaint as well as the land shown in schedule ‘Aa’ of the plaint. The crop of sugarcane in the aforesaid khasras was not less than 50 quintal per bigha and, thus, there was not less than 750 quintal sugarcane in 15 bighas land of the plaintiffs. In paragraph 5 of the plaint it has been stated as under:- “;g fd iz’uxr o"kZ 1996 bZ0 esa Hkwfe fuEufyf[kr en ¼c½ esa [kM+h Qly xUuk fdlh Hkh n’kk esa 50 dqUVy izfr ch?kk [kke ls de ugha Fkk A bl izdkj ls iz’uxr Hkwfe jdcbZ 15 ch?kk esa xUus dk out fdlh Hkh n’kk esa 750 dqUVy ls de ugha Fkk rFkk o"kZ 1996&97 bZ0 esa xUus dh nj fdlh Hkh n’kk esa eqcfyx 70@& :Ik;k izfr dqUVy ls de ugha gS A bl izdkj ls iz’uxr Hkwfe en ¼c½ esa ekg vDVwcj lu~ 1996 bZ0 esa oknhx.k dh Qly bZ[k fdlh Hkh n’kk esa eqcfyd 50]000@& :Ik;k ls de ugha Fkh A” 5. In paragraph no. 2 of the plaint, it has been stated that 11000 volt High Tension Power line is taken over the land of the plaintiffs by the Electricity Department and the responsibility of maintaining the same is on the respondents. On 1.10.1996 the plaintiff no. 1 has given the notice to the defendant no. 2 stating therein that the electricity wires are old and loose and smash together and spark and, therefore, there is a suspicion that due to 4 sparking the crops of the plaintiffs will receive fire. On 9.10.1996 at about 1.00 p.m. the electric wire broken and due to sparking the sugarcane crops of the plaintiffs got burned. The plaintiffs have suffered a loss of at least Rs. 50,000/-. The plaintiff no. 1 has lodged the First Information Report to that effect in the police station Bhagwanpur on 9.10.1996 and lodged a complaint before the Line Inspector, Electric Sub-Station, Bhagwanpur. The plaintiffs have sent a notice on 10.10.1996 to the defendant no. 3 by registered post. The Amin has also submitted his report in the Tehsil, Rookee after inspection of the site in question. The plaintiffs have suffered a loss of Rs. 50,000/- due to negligence of the defendants and they are entitled to get the same. The plaintiffs have requested several times to the defendants for granting of compensation but the defendants did not pay the same hence the present suit has been filed. 6. A written statement was filed by the defendants. respondents and the submissions made by the plaintiffs have been denied. The defendants have denied the alleged incident. It has been submitted that the alleged wire is neither loose nor weak. The suit of the plaintiffs are barred by Order 7 Rule 14 of C.P.C. Sections 19 and 33 of Indian Electricity Supplies Act and Section 35 of the Specific Relief Act also bar the suit of the plaintiffs. The suit of the plaintiffs is liable to be dismissed. 5 7. The plaintiffs have filed the replication and have denied the averments made in the written statement by the defendants. 8. On the pleadings of the parties, the trial court has framed the following issues :- 1. As to whether the plaintiffs are entitled for compensation to the extent of Rs. 50,000/- alongwith interest at the rate of 18 per cent from the defendants? 2. As to whether the suit is barred by Order 7 Rule 14 of the C.P.C.? 3. As to whether the suit is barred by Section 19 and other Indian Electricity Act and Electricity Supplies Act? 4. As to whether the suit is barred by Sections 38 and 41 of the Specific Relief Act? 5. As to whether the court has no jurisdiction to try the suit? 6. Relief? 9. The plaintiffs have examined P.W.1 Jagmohan and P.W.2 Sanjay Kumar, P.W.3 Rajkumar and P.W.4 Ravindra Kumar. Towards the documentary evidence, the plaintiffs have produced copy of khatauni i.e. paper no. 7 ga, copy of khasra i.e. paper no. 8 ga, U.P.C. receipts as per list 35 ga, photographs i.e. 36 ka/2 to 363/5, 385/6 negative, 36 ka/7 photograph, paper no. 376 i.e. report lodged in the Police Station, Bhagwanpur, 38 ka letter written to the Line Inspector, copy of notice i.e. paper no. 39 ga, Postal report i.e. paper no. 40 ka. 6 10. The defendants have examined D.W.1 Vikram Kumar as D.W.1. Towards the documentary evidence, the defendants have not produced any document. 11. While deciding as to whether the plaintiffs are entitled for compensation to the extent of Rs. 50,000/- alongwith interest at the rate of 18 per cent from the defendants, the trial court has taken into consideration the paper no. 58 ga which shows that the ‘Lekhpal’ and the Assistant Registrar, Kanoongo have inquired about the matter and found that the sugarcane in four and half bighas land of khasra no. 464 has burned completely as a result of which the plaintiffs have suffered a loss amounting to Rs. 50,000/-. The said report was also confirmed by the Tehsildar, Roorkee who has directed the Assistant Kanoongo to inform to the Electricity Department in this regard. The trial court has recorded the finding to the following effect:- “mijksDr foospuk ds i'pkr~ eSa bl fu.kZ; ij igqWapk gWwa fd oknhx.k ds }kjk izLrqr nLrkostksa rFkk ekSf[kd lk{; ds v/;;u ds i'pkr~ ;g rF; iw.kZ :Ik ls fl) gksrk gS fd fnukad 9-10-96 dks izfroknhx.k dh ykijokgh ds dkj.k oknhx.k ds [kljk la[;k 464 ds mij ls tk jgh izfroknhx.k dh ,p-Vh0 --esa rkjksa ds rku esa deh gksus ds dkj.k LikdZ gqvk ftlls oknhx.k dh bZ[k dh Qly esa vkx yx x;h vkSj oknhx.k dk yxHkx 15 ch?kk [kke bZ[k tydj jk[k gks x;k A oknhx.k ds oknh txeksgu] ih0MCY;w0 1 us vius c;ku eas ;g Hkh dgk gS fd izR;sd ch?kk [kke esa yxHkx 15 dqUVy xUuk Fkk] ftldh dher o"kZ 1996&97 esa 70 :Ik;s izfr dqUVy Fkh A bl izdkj 7 izfroknhx.k dh ykijokgh ds QyLo:Ik oknhx.k dks 50]000@& #Ik;s dk uqdlku gksuk fl) gksrk gSA” 12. On the basis of the aforesaid, the trial court has come to the conclusion that the plaintiff is entitled for compensation of Rs. 50,000/- alongwith interest at the rate of 6 per cent. 13. While deciding as to whether the suit of the plaintiff is barred by Order 7 Rule 14 of Code of Civil Procedure, the trial court has recorded the finding that the defendants have failed to prove that the suit is barred by Order 7 Rule 14 of Code of Civil Procedure. 14. While deciding as to whether the suit is barred by Sections 19 and 33 of the Indian Electricity Act and Electric Supplies Act, the trial court has decided the issue against the defendant and have recorded the finding that the there is no force in the argument advanced by the defendants that the plaintiffs should have sent the matter before the Arbitrator for the compensation and the Electricity Inspector has no right with regard to assess the compensation. 15. While deciding as to whether the suit of the plaintiffs is barred by Sections 38 and 41 of the Specific Reliefs Act, the trial court has recorded the finding that the defendants have failed to prove that the suit is barred by Sections 38 and 41 of the Specific Reliefs Act. 8 16. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiffs for recovery of Rs. 50,000/- from the defendants alongwith interest thereon at the rate of 6 per cent per annum. 17. Aggrieved by the aforesaid judgment and decree passed by the trial court, the defendants went in appeal. The appellate court has considered the documents available on record and the arguments advanced by him and dismissed the appeal affirming the judgment and decree passed by the trial court. 18. Aggrieved by the judgment and decree passed by the trial court, the defendants have preferred the appeal. The appellate court has confirmed the judgment and decree passed by the trial court and dismissed the appeal and has come to the conclusion the judgment passed by the trial court is in conformity with the oral and documentary evidence available on the record and requires no interference. 19. Since, both the courts below have recorded the concurrent findings of fact and have come to the conclusion that the fire took place due to negligence of the Electricity Department as a result of which the crops of the plaintiffs were destroyed. I find no illegality in the judgments and decrees passed by the two courts below. 20. In view of the above, I find substantial questions of law involved in the second appeal against the appellants 9 and no interference can be made under Section 100 of the Code of Civil Procedure and, therefore, the second appeal is liable to be dismissed. 21. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 22. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held under:- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 23. Consequently, second appeal is dismissed being devoid of merits. No order as to costs. (Rajesh Tandon, J. ) 4.4.2008 Avneet