HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APEAL NO. 2 OF 2003 M/s Kisan Rice Mill ….Plaintiff-Appellant Vs. U.P. Electricity Board & Others ….Defendants-Respondents Dated 18.6.2008 Hon’ble Rajesh Tandon, J. Heard Sri M.S. Pal, Sr. Advocate assisted by Shri Sukhdev Singh, counsel for the appellant and Shri B.D. Upadhyay, counsel for the respondents. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment/decree dated 27.11.2002/3.12.2002 passed by the Additional District Judge, Nainital in Civil Suit No. 64 of 1995. 3. Briefly stated, a suit was filed by the plaintiff being suit no. 64 of 1995 praying for permanent injunction restraining the defendants from disconnecting the electricity supply and further decree for declaration that the act of disconnecting the electricity supply is illegal, arbitrary and biased. According to the plaint averments, the plaintiff is a registered partnership firm and has the electric connection no. 2501/046653 with the meter load of 62 horse power. On 3.4.1995, the Junior Engineer U.P. Electricity Board Khatima Sri Iqbal Singh lodged a report with the police at P.S. Sittargang that he along with some other 2 officials made inspection of the meter installed at the Mill and the paper seal from the electric meter and C.T. Box was found removed. It has further been stated that the police P.S. Sittarganj challaned the plaintiff’s partner Sri Munshi Ram U/S 39/40 of the Indian Electricity Act and U/S 379 of the Indian Penal Code. The defendant without giving any notice to the plaintiff disconnected the electricity supply of the plaintiff on 2.4.1995. In paragraph 10 of the plaint it has been stated as under:- “10. That the cause of action arisen to the plaintiff against the defendant at Sittarganj, Distt. Nainital on 2.4.1995 when the defendant falsely alleged that the plaintiff has tempered with the paper seal put on the meter of the C.T.Box. The suit is within time and the Hon’ble court has jurisdiction to try the same.” 4. The defendant has filed a written statement denying the plaint averments. In paragraph 22 of the written statement it has been stated that a notice no. 1905/Vi. Vi. Kha. (Ru.) R/4, dated 25.4.1995 was sent to the plaintiff regarding the said assessment, providing opportunity of hearing to the plaintiff as per Regulation no. 23 (i) of the aforesaid Regulations, by registered A.D. Post, but the plaintiff refused to accept the said notice. However, the said assessment was appellable under Regulation no. 23 (ii), but the plaintiff did not file any appeal against the said assessment and the same became final. 5. In paragraph no. 23 of the written statement, it has been stated that under Regulation no. 22 (D) of the aforesaid Regulations, unless the plaintiff deposits the entire amount of assessment bill along with all outstanding arrears, together with disconnection and reconnection fee and stops malpractice, pilferage or irregular use of energy and unless all other 3 necessary formalities, as may be required to the entire satisfaction of the supplier, i.e. the concerned officers of the defendant Board, the supply of electricity shall remain disconnected. 6. On the pleadings of the parties, the trial court has framed the following issues:- “1. D;k izfroknhx.k ds vf/kdkfj;ksa@deZpkjhx.k us oknh dk fo|qr dusD’ku voS/k :Ik ls dkVk gS] ;fn gWka] rks izHkko\ 2- D;k oknh dks dksbZ okn dkj.k mRiUu gqvk\ 3- D;k ;g okn /kkjk 38 o 41 fof’k"V vuqrks"k vf/kfu;e ds izko/kkuksa ls ckf/kr gS\ 4- oknh D;k vuqrks"k ikus dk vf/kdkjh gS\Þ 7. The plaintiff has produced two documents per list 6 ga. Towards the oral evidence, the plaintiff has examined P.W.1 Munshi Ram and P.W.2 Mansha Singh. 8. The defendant has produced one document per list 36 ga. Towards the documentary evidence, the defendant has examined Atul Kumar Agrawal as D.W.1, Shailesh Kumar as D.W.2 and Iqbal Singh as D.W.3. 9. While deciding issue no. 1 as to whether the act of the defendant employees in disconnecting the electric supply is illegal, the trial court has recorded the finding that the defendant was competent to disconnect the electric supply of the plaintiff. The trial court has recorded the finding to the following effect:- “bu ifjfLFkfr;ksa esa tc ekSds ij pSfdax ds nkSjku ehVj dh lhy VwVh gqbZ ik;h x;h gS vkSj foHkkx }kjk fo|qr pksjh dk dsl ntZ fd;k x;k gS rks fo|qr vkiwfrZ jsX;wys’ku ds rgr fdlh uksfVl dks fn;s tkus dh vko’;drk ugha Fkh vkSj izfroknh ds vf/kdkjh ekSds 4 ij rqjUr fo|qr vkiwfrZ dk dusD’ku foPNsn djus dks l{ke Fks vkSj ,slk gh fd;k x;k gS A dsoy bl vk/kkj ij fd fo|qr pksjh ds eqdnesa esa oknh dks lUnsg dk ykHk nsrs gq, cjh dj fn;k x;k gS ;g ugha ekuk tk ldrk fd fcuk uksfVl fn;s fo|qr vkiwfrZ ugha jksdh tk ldrh Fkh vkSj bl lUnHkZ esa fd;k x;k d`R; voS/kkfud gS AÞ 10. While deciding issue no. 2 as to whether the plaintiff has any cause of action to file the suit, the trial court has come to the conclusion that the plaintiff had no cause of action to file the suit. 11. While deciding issue no. 3 as to whether the suit is barred by Sections 38 and 41 of Specific Relief Act, the trial court has come to the conclusion that the suit of the plaintiff is barred by Sections 38 and 41 of Specific Relief Act. 12. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiff. 13. Counsel for the appellant has referred paper no. 116 ga where the proceedings initiated against the appellant under Section 39/40 of Electricity Act as well as under Section 379 of I.P.C. criminal proceedings, finding has been recorded that according to the contention of the appellant that it is quite possible that the seal was an old one and the factory was lying closed, therefore, it cannot be denied that the seal was broken and accordingly, the court has acquitted the appellant on the benefit of doubt. 14. So far as the contention of the respondent that huge amount was due and for that purpose, the assessment was made and the same remained final. No issue has been framed by the 5 trial court on the basis of paragraph nos. 22 and 23 of the written statement and in case the amount was due, the plaintiff was required to satisfy the Civil Court as to whether the amount is due or not and for that purpose an issue was required to be framed. 15. In view of the aforesaid, without entering into the findings recorded by the trial court, the judgment of the trial court being cryptic one is set aside. The appeal is remanded to the court below for deciding afresh. Trial court shall not be guided by any findings recorded above and shall frame the issues in accordance with the plaint as well as the written statement. 16. In view of the aforesaid, appeal is allowed and is remanded to the court below for deciding afresh in the light of the observations made above. The trial court shall decide the matter expeditiously. No order as to costs. (Rajesh Tandon, J.) 18 .6.2008 Avneet