RSA No. 3465 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 3465 of 2011 (O&M) Date of decision : 26.8.2011 ... M/s Shri Ram Enterprises ................Appellant vs. Firm M/s Dua Agro Industries and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Madan Gupta, Advocate for the appellant. ... K.C. Puri, J. Challenge in the appeal is to the judgment and decree dated 1.6.2011 passed by Sh. R.S. Baswana, District Judge, Kaithal, vide which the appeal preferred by the defendant-appellant against the judgment and decree dated 25.9.2009 passed by Sh. Rajnish Kumar Sharma, Additional Civil Judge (Senior Division), Kaithal, was dismissed. Firm – M/s Dua Agro Industries – plaintiff filed a suit for recovery of ` 3,10,000/- against the appellant, arraying UHBVN Kaithal, as one of the defendants. It is alleged that plaintiff firm gave its Rice Sheller known as M/s Dua Agro Industries Udyog Marg, Kaithal, on lease for a period of eleven months commencing from RSA No. 3465 of 2011 -2- 1.7.2000 to 31.5.2001 to defendant No.1 vide agreement dated 25.6.2000 for shelling of paddy on the fixed rent of ` 95,000/-. The lease amount was to be paid by defendant No.1 on or before 30.11.2000. The defendant No.1 took actual possession of the Rice Sheller on 1.7.2000 from the plaintiff. As per terms of the agreement, the defendant No.1 was to pay all the expenses in respect of dues of electricity, telephone or any other bill concerning the Rice Sheller. On 11.9.2000 a raid was conducted by the Electricity Department and defendant No.1 was found stealing the energy. A criminal case was registered against the plaintiff. A penalty of ` 5,99,420/- was imposed. The plaintiff brought the fact of lease in favour of defendant No.1 to the police and later on defendant No.1 was arrayed as accused. The plaintiff in order to avoid arrest paid ` 3 lacs to the Electricity Department out of which ` 2 lacs were given by defendant No.1 through cheque. Later on the amount of ` 1,11,650/- was also paid on account of stealing of electricity. The amount of ` 95,000/- has also been claimed as lease amount. On put to notice, defendant No.1. took the legal objections regarding maintainability, suit is bad for non-joinder of necessary parties. It is pleaded that defendant No.1 has not committed any theft of electricity nor is liable to pay any penalty amount. The defendant No.1 after taking the possession of the premises on lease on 1.7.2000 never touched the electricity meter. The lease amount of ` 95,000/- has also been paid. In fact ` 2 lacs were paid to the plaintiff out of RSA No. 3465 of 2011 -3- which ` 95,000/- was the lease amount and ` 1,05,000/- was to be returned by the plaintiff. Other averments made in the plaint were denied. Defendant No.2 filed separate written statement taking legal objections on maintainability, cause of action, non-joinder of necessary parties, locus standi. On merits, it is admitted that Electricity Department inspected the premises and theft was detected and FIR was registered. The plaintiff filed replication to the written statement denying the contents of written statement and reiterating the stand taken in the plaint. From the pleadings of parties, following issues were framed:- 1. Whether the plaintiff is entitled for recovery of ` 3,10,000/- from the defendants as defendant was running the Rice Sheller in question? OPP. 2. Whether the suit is not maintainable as the same is bad for non-joinder and mis-joinder of necessary parties? OPD 3. Relief. To prove its case, the plaintiff examined PW-1 Subhash Chand Deed Writer, PW-2 Khan Chand s/o Sukh Dayal, PW-3 Ajay Kumar Dua, PW-4 Anil Kumar , PW-5 Dharam Pal Chugh, UDC. In rebuttal, defendant examined DW-1 Jaswant Singh Rana, CA, DW-2 Raj Kumar and closed the evidence. Learned trial Court after appraisal of the evidence, reached to the conclusion that plaintiff is entitled to claim ` 2,11,650/- on RSA No. 3465 of 2011 -4- account of payment of penalty for theft of energy. However, it is held that lease amount has been paid as admitted by one of the partners of the plaintiff. Feeling dissatisfied with the judgment dated 25.9.2009 passed by Sh. Rajnish Kumar Sharma, Additional Civil Judge (Senior Division), Kaithal, defendant No.1, now appellant, preferred the Ist Appeal. The said appeal was heard by Sh. R.S. Baswana, District Judge, Kaithal, and vide judgment and decree dated 1.6.2011, dismissed the appeal preferred by defendant No.1-appellant. Still feeling dissatisfied with the judgment dated 1.6.2011 passed by Sh. R.S. Baswana, District Judge, Kaithal and judgment and decree dated 25.9.2009 passed by Sh. Rajnish Kumar Sharma, Additional Civil Judge (Senior Division), Kaithal, the present regular second appeal has been filed by defendant No.1-appellant. The appellant in paragraph No. 5 of the grounds of appeal has mentioned that following substantial questions of law have arisen for consideration in this appeal:- i) Whether the judgment and decree passed by the learned Courts below can be sustainable in the eyes of law? ii)Whether in the facts and circumstances of the present case the plaintiff was entitled for any discretionary relief? iii)Whether the hole in the meter was done by the appellant? iv)Whether without ascertaining the actual amount of the RSA No. 3465 of 2011 -5- alleged theft can be put upon the appellant? v) Whether the judgments of the Courts below are perverse and misreading of evidence? Learned counsel for the appellant has submitted that plaintiff has filed suit for recovery of ` 3,10,000 i.e. ` 95,000/- on account of lease amount and remaining amount on account of penalty in respect of theft of energy. So, far as lease amount is concerned, the trial Court has rightly held that plaintiff has paid the lease amount. The charges in respect of theft of energy have been wrongly decreed against the appellant. The theft of energy if any, was committed by the plaintiff and not defendant No.1-appellant. The amount of ` 2 lacs was paid through cheque in respect of lease money of ` 95,000/- and remaining ` 1,05,000/- was to be paid back by the plaintiff. The plaintiff instead of paying that amount has filed the present suit. There is mis-reading and mis-interpretation of evidence on the file. I have carefully considered the submission made by counsel for the appellant, but do not find any force in the submission made by counsel for the appellant. There is concurrent finding of fact recorded by both the Courts below that theft of energy has taken place on 11.9.2000, when the raid was conducted. Both the Courts below have also held that plaintiff has been able to prove that amount of ` 2,11,650/- has been paid by the plaintiff in addition to ` 2 lacs contributed by the defendantNo.1-appellant. That being a finding of fact cannot be interfered in the regular second appeal. It is not disputed during the course of arguments that defendant No.1-appellant remained in RSA No. 3465 of 2011 -6- possession of the Sheller from 1.7.2000 to 31.5.2001. the raid was conducted on 11.9.2000 by the Electricity Department. Initially a criminal case was registered against the plaintiff, but later on defendant No.1 was arrayed as accused, while plaintiff was discharged. There is nothing on the file that the judgments of both the Courts below are a result of mis-reading or mis-interpreting the evidence on the file. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 26.8.2011 Judge chugh