1 RSA No. 2043 of 2004 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- R. S. A. No. 2043 of 2004 Date of decision: 5.5.2009 Satish Kumar Sharma … Appellant Versus Sub Divisional Officer (OP) City Sub Division, Haryana Vidyut Prasaran Nigam Ltd. Ballabgarh and others … Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Vikas Kumar, Advocate for the appellant. Mr. S.K. Hooda, Advocate for respondent Nos. 1 to 3. --- AJAY KUMAR MITTAL, J. This regular second appeal filed by one of the plaintiffs is directed against the judgment and decree dated 5.2.2004 passed by the Additional District Judge, Faridabad, whereby findings of the trial court on issue No.1 that the demand notice dated 22.6.1996 issued by the defendants was illegal, null and void, were set aside and suit of the plaintiffs was dismissed. The appellant herein, Satish Kumar Sharma, and Girish Parkash Parashar, proforma respondent No.4, filed a suit for declaration on the averments that they were having an electric connection bearing account 2 RSA No. 2043 of 2004 No. VAP-25 which was in the name of Munshi Ram, the owner of the premises of business. The power against the said account was, however, being used by the plaintiffs and in other words, they were the real users of the electricity as well as the connection under reference, by virtue of a rent deed pursuant to which the premises had been taken on rent by them. The plaintiffs claimed that the defendants had been raising the electricity bills in the name and style of Shri Munshi Ram from time to time and they (plaintiffs) had been paying the said bills regularly. On 18.6.1999, a raiding party (Vigilance) visited the premises, carried out inspection and prepared a checking report. The defendants thereafter served a notice on the plaintiffs demanding payment of Rs. 37,494/- as compensation for six months. The plaintiffs deposited 50% amount demanded by the defendants, vide receipt dated 1.7.1999 and consequently, the connection was restored to them. The plaintiffs preferred appeal against the order of imposition of penalty which was still pending before the appellate authority. It was pleaded that the plaintiffs were not liable to comply with the false and unlawful demand of the defendants dated 22.6.1999. The plaintiffs, thus, prayed for a decree for declaration to the effect that disputed penalty may be declared as illegal and not binding on their rights. They also prayed for a decree for permanent injunction restraining the defendants from raising the 50% balance of the unjustified penalty of Rs. 37494/- which came to Rs. 18,747/. The plaintiffs also challenged the genuineness and validity of the checking 3 RSA No. 2043 of 2004 report dated 18.6.1999 prepared by the defendants which led to issue of the notice demanding the amount of penalty. The defendants, in their joint written statement, pleaded that during the course of checking of the meter in question on 18.6.1999, it was detected that there was a hole therein which could enable any one to control or disrupt the recording of true consumption of the electricity and this amounted to theft within the meaning of Section 39 of the Indian Electricity Act and, therefore, issue of the notice and the demand of the penalty was totally justified. Having regard to the nature of the controversy involved, it is considered apt to reproduce the issues which, in the opinion of the trial court, arose between the parties:- 1- Whether the notice dated 22.6.1999 demanding penalty of Rs. 37,494/- is illegal, null, void and wrong? OPP 2- Whether the plaintiffs are entitled to the injunction as prayed for? OPP 3- Whether the suit of the plaintiffs is bad for non-joinder of necessary parties and not maintainable in the present form? OPD 4- Whether the plaintiffs are stopped from filing the present suit by his own act and conduct? OPD 5- Whether the plaintiffs have no cause of action to file present suit? OPD 4 RSA No. 2043 of 2004 6- Whether the plaintiffs have no locus standi to file the present suit? OPD 7- Relief. The trial court, on appraisal of the evidence on record, decided issue No.1 in favour of the plaintiffs and issue Nos. 3 to 6 in favour of the defendants whereas issue No.2 was decided against the plaintiffs. The trial court returned a finding that the notice dated 22.6.1999 demanding the penalty of Rs. 37,494/- from the plaintiffs was illegal, null, void and not binding on their rights. For forming the above conclusion, the trial court primarily took into consideration two faults which were noticed at the time of checking; the one was that the disc was found dead-stop and other was with regard to the use of the load of the power. Qua the first, the trial court observed that it was the duty of the defendants to intimate the users/plaintiffs so as to enable them to get the disc corrected and the meter changed. And with regard to the other one, it was observed that at the time of checking the actual load being consumed was found to be less than the sanctioned load and, hence, it was no irregularity of any kind. But, the trial court non-suited the plaintiffs on the question of non-joinder of parties. Undisputedly, it emerged on record that the electric meter was in the name of one Munshi Ram who was the actual consumer, but the meter was in fact, being used by the plaintiffs. So the liability or defaults or even any sort of irregularity, if any, was attributable to Munshi Ram and not the plaintiffs, but the plaintiffs did not join Munshi Ram as a party to the suit. 5 RSA No. 2043 of 2004 The trial court, thus, held that the plaintiffs were stopped from filing the present suit by their own act and conduct and they also had no cause of action or locus standi to file the said suit. As a result of the findings on the latter questions, the suit was dismissed vide judgment and decree dated 22.1.2002. When the appeal was filed by the defendants, challenging the finding of the trial court on issue No.1 whereby the demand notice dated 22.6.1999 was held to be illegal, null and void, the first appellate court, while considering the matter, came to record a definite finding that since the trial court had held that Munshi Ram was the necessary party to the suit but he had not been joined and thus, there existed no relationship of consumer and the supplier between the plaintiffs and the defendants, and also that the suit was bad for non-joinder, the decision on issue No.1 regarding the validity of the demand notice was not required. Finding on the said issue was consequently set aside and as a matter of fact, this issue was struck off by observing that it had been rendered as infructuous in view of the joint findings on issue Nos. 2 and 3 to 6. Accordingly, the appeal filed by the defendants was accepted and the suit of the plaintiffs was dismissed vide judgment and decree dated 5.2.2004. This appeal has been filed by one of the plaintiffs, challenging the judgment and decree of the lower appellate court. I have heard learned counsel for the appellant and have gone through the record with his assistance. 6 RSA No. 2043 of 2004 Learned counsel appearing for the appellant could not controvert the finding recorded by both the courts below that the electricity connection was in the name of Munshi Ram and that the bill demanding Rs. 37,494/- as penalty was also issued in his name. It could not be justified by the learned counsel as to then why Munshi Ram who was a necessary party had not been arrayed in the suit. Once no fault could be found with the findings recorded on issue No.3, the observation of the lower appellate court that issue No.1 had been rendered infructuous calls for no interference. As a necessary corollary, both the courts below have rightly dismissed the suit filed by the plaintiff-appellant. Further, the findings recorded by the lower appellate court that there was no relationship of consumer and supplier between the plaintiffs and the defendants are based on correct appreciation of the oral as well as the documentary evidence and also on the sound reasoning. No illegality or perversity could be shown by the counsel in the said findings so as to persuade this Court to interfere therewith in second appeal. No substantial question of law arises nor has any been pointed out by the counsel, for consideration of this Court. In view of the above, there is no merit in the appeal and the same is dismissed in limine. (AJAY KUMAR MITTAL) May 05, 2009 JUDGE *RKMALIK* 7 RSA No. 2043 of 2004