RSA No.4854 of 2004 (1) In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 04.02.2008. Gurcharan Singh ... Appellant. Versus P.S.E.B., through its Chairman ... Respondents. and another. Present: Mr.Sunil Chadha,Advocate. Mr.Rajesh K. Sharma, Advocate. PERMOD KOHLI, J. (Oral): After hearing the learned counsel for the parties, I am of the opinion that the following substantial question of law arises in the present appeal:- 1. Whether the notice of demand can survive when the defendants have failed to establish theft and the issue framed to prove the theft has not been pressed? The appeal is Admitted to hearing on this question of law. The appeal is heard with the consent of the learned counsel for the parties for final disposal at the motion stage. This is plaintiffs Regular Second appeal against the judgment and decree dated 08.10.2004 passed by the learned Additional District Judge, Ludhiana, affirming the judgment and decree dated 17.12.2003 RSA No.4854 of 2004 (2) passed by the learned Additional Civil Judge (Senior Division), Ludhiana. Briefly stated, a demand of Rs.99,41/- was raised against the plaintiff-appellant herein vide notice No.3173 dated 15.09.1993 for recovery of the amount as penalty for committing the theft of the energy allegedly supplied to the plaintiff-appellant through the meter bearing No.VK-15/12582. The plaintiff has assailed the validity of the notice aforesaid and denied the theft. The learned trial Court framed a specific issue in this regard being issue No.1, which reads as under:- 1. Whether on 14.09.1993 the plaintiff was found committing theft of energy? OPD The burden to prove this issue was upon the defendants. However, during the trial, no evidence was led by the defendants and the issue was not pressed at the time of hearing. The trial Court recorded the following findings on issue No.1:- “ During the course of arguments, learned counsel for the defendants has not pressed this issue nor any evidence was intended to lead. Hence, this issue is decided against defendants as unpressed.” Despite recording this finding, the learned trial Court dismissed the suit on the ground that the plaintiff has not led any evidence. An appeal preferred therefrom in the Court of learned Additional District Judge, RSA No.4854 of 2004 (3) Ludhiana, also resulted in dismissal. From the judgment impugned, it appears that the entire emphasis of the learned Lower Appellate Court was regarding the right of the plaintiff-appellant to lead evidence. None of the Courts below have considered the basic question regarding the validity of the demand. The defendants have raised an issue that the plaintiff has committed theft of energy, the burden was upon the defendants to establish that the plaintiff was guilty of theft and notice impugned was consequent upon the commission of theft of energy by way of penalty under the law. The issue having not been pressed, it has not been established that the plaintiff is guilty of theft of energy on 15.09.1993 and, thus, the question of imposition of penalty vide the impugned notice does not arise. However, both the learned Courts below have dismissed the suit on the ground that the plaintiff has not led any evidence. In my opinion, both the Courts below have committed a glaring illegality in dismissing the suit. When issue No.1 was not pressed, its natural consequence was that notice of demand imposing penalty based upon theft cannot survive. In view of the above, the present appeal succeeds and the judgments and decrees impugned are hereby set aside. Consequently, the suit filed by the plaintiff-appellant for quashing the impugned notice No.3173 dated 15.09.1993 is hereby decreed. No costs. 04.02.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO