IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 909 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GEB THROUGH SECRETARY Versus SAURASHTRA CHEMICALS -------------------------------------------------------------- Appearance: 1. First Appeal No. 909 of 1996 MR MD PANDYA for Petitioner No. 1 .......... for Petitioner No. 2-3 MR SN SOPARKAR for Respondent No. 1 TANNA ASSOCIATES for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 11/09/2003 CAV JUDGEMENT (Per : HON'BLE MR.JUSTICE C.K.BUCH) 1. This appeal under Section 96 of the Code of Civil Procedure is preferred by the appellants -original defendants of Special Civil Suit No. 2/1991 against the judgment and order dated 30.9.1995 passed by the ld. Civil Judge (S.D.), Porbandar whereby suit of the respondent -original plaintiff company has been decreed. Appellants are the original defendants and respondent is the original plaintiff and for the sake of convenience, they will be referred to hereinafter as defendants and plaintiff respectively. Ld. Civil Judge decreed the suit holding that the plaintiff is entitled to recover an amount of Rs. 37,17,548-00 from the defendants with running interest at the rate of 12% p.a. from the date of the suit till its realisation with costs of the suit. 2. To appreciate the rival contentions raised by the ld. Senior counsel appearing for the parties, it would be appropriate to narrate the facts of the case in nutshell. 2.1 It is the case of the plaintiff that plaintiff company namely Saurashtra Chemicals, Porbandar was provided with 2000 KVA High Tension Electric Connection as per the agreement and electricity meter was installed in the factory premises by the defendants. Installation Checking Squad of defendant no.1 Gujarat Electricity Board ( hereinafter referred to as GEB ) visited the premises without intimation, of the plaintiff company on 2.2.1982 and from that day to 7.2.1982 electricity meter was watched in the presence of the responsible officer of the company and plaintiff was informed that the meter installed in the premises of the plaintiff is not showing correct electricity supply consumed and the same is running slow. Thereafter GEB installed new Trivector meter on 9.9.1982 parallel to old existing meter No.12636824. According to the plaintiff, this act of putting parallel Trivector meter without prior intimation was objectionable and so the same was objected and the officers of the Checking Squad were requested to check the old meter. According to the plaintiff, the existing meter was giving the correct reading and defendants had agreed to check the old meter, but the same was never checked. On the contrary, on 12.5.1983, defendant no.1 GEB had issued a supplementary bill for the period from 6.12.1981 to 9.9.1982 claiming that the old meter was used for the billing purpose and for the said period, so the plaintiff should pay the amount shown in the supplementary bill. This supplementary bill was issued on the strength of the letter from defendant no.1 to defendant no.3 for Rs. 2,10,404-92. This supplementary bill was objected by the plaintiff and detailed reply was sent to the defendants. Thereafter, defendants issued notice to the plaintiff threatening to disconnect the meter connection if plaintiff fails to make payment of the amount demanded vide supplementary bill and ultimately, according to the plaintiff, defendants recovered the amount wrongly claimed by deducting that amount from the plaintiff's account in which the refund was being credited as per the rules. Undisputedly, the plaintiff is having H.T.Consumer Account with defendant no.1 GEB being Account No. 2763 in which energy charges are debited and the amounts paid by the plaintiff are credited and the said account is current and was continued (running) even on the date of filing of the suit. It is contended by the plaintiff that new Trivector Meter No. 26628293 was used for the purpose of billing from 9.9.1982, was moving fast by around 6% and for that the plaintiff had requested the defendant -concerned authority and ultimately on 22.1.1987, Trivector Meter placed was replaced by another new Trivector Meter. The grievance of the plaintiff is that the action of the defendants to issue supplementary bill of Rs.2,10,304-92 ps. and to charge the plaintiff on the strength of new meter from 6.12.1981 to 9.9.1982 and from 10.9.1982 to 21.1.1987, is totally illegal and bad-in-law and, therefore, defendants are liable to refund the amount actually recovered from the plaintiff with interest from 1.5.1983, the date on which the amount was adjusted from the amount lying in the H.T. Current Account of the plaintiff. As the amount recovered by the defendant is excess on the basis of reading of new meter which was moving fast, without referring the dispute raised to Electricity Inspector, should be held illegal. 2.2 Defendants have resisted the suit by filing written statement vide exh.16 and they have denied the allegations made in the plaint. According to the defendants, the suit of the plaintiff is neither true nor legal or otherwise maintainable in law. It is also the say of the defendants that the suit is hopelessly barred by limitation in view of the Limitation Act and, therefore, the suit of the plaintiff need to be dismissed without going into merits of the facts stated by the plaintiff. According to defendants, plaintiff has not mentioned any exact date on which cause of action has allegedly arisen. Defendants have inter alia contended that the suit of the plaintiff requires to be dismissed in view of the provisions of O.9 R.9 of CPC as the same is not maintainable and therefore deserves dismissal in view of the provisions of O.2 R.2 of CPC. Prior to filing of the present suit, plaintiff had filed a suit being Special Civil Suit No. 7/1986 in the Court and the Court dismissed the said suit under O.9 R.8 of CPC for want of prosecution. It was filed on the same ground and for the said alleged cause. Undisputedly, defendant no.1 GEB as licensee doing business of supplying electric power by providing electricity connection to the consumers in their respective premises and as per its norms including Statute and Statutory Rules framed thereunder. According to law, they are providing meter and consumers are given bills as per the electricity energy consumed in accordance with the reading of the meter and the consumer is liable to pay the amount of bill. It is the say of the defendants that they are given right and authority to check, to search the meter installed at the place or premises of the consumer and checking of the plaintiff's meter by Checking Squad made from 2.2.1982 to 7.2.1982 was absolutely in accordance with the authority of law. As the meter was not found rotating or moving properly against the energy consumed, they put parallel meter with old existing meter in exercise of the authority and powers under sub-section 7 of Section 26 of the Indian Electricity Act. This parallel Trivector meter was fitted in the presence of the responsible officer of the plaintiff and as per rules. This act of putting parallel Trivector meter was with a view to test and verify whether the old existing meter is showing correct figures of rotation or not. It is contended by the defendants that new parallel Trivector meter fitted was a calibrated and tested by the Laboratory maintained by defendant no.1 GEB. 2.3 It is contended that GEB is doing business of supplying electrical energy and for the purpose i.e. to assess the consumption of supply, it also provides meter along with connection and bills are being issued as per the reading of the meter to the consumers and the consumer is supposed to pay bill amount. The law also gives right and authority to check and inspect the meters so installed at the premises of its consumers and in exercise of statutory right the team of GEB visited the premises of the plaintiff. The plaintiff company has experienced and qualified Electrical Engineer as employees. The old meter was initially watched manually and as it was found that rotation is probably slow and so a meter parallel to the load meter in accordance with the provisions of Sec.26(7) of the Act was installed. This new parallel meter was installed in presence of one responsible officer of the plaintiff company and ultimately it was found that the old meter of the plaintiff was moving slowly at the rate of 5.87% and, therefore only, the plaintiff was issued supplementary bill of Rs.2,10,304-92 ps. According to GEB, if the plaintiff had any objection against the issuance of supplementary bill on the ground that new meter is moving fast in the same percentage i.e. 5.87% or say 6%, then the plaintiff itself ought to have referred the dispute as to genuineness of the new meter to the Electrical Inspector under Section 24(2) of the Act. On the contrary, the plaintiff had paid the amount of bill to the defendant by permitting adjustment without raising any formal dispute before the Electrical Inspector and after a long time, various false pleas are raised. While denying the claim of the plaintiff, GEB contended that the suit of the plaintiff is barred by limitation because the same is brought after the lapse of more than three years of the adjustment of the amount-recovery of the amount of the supplementary bill. In view of the disposal of the earlier suit, it is contended that the present suit is barred and not maintainable in view of the provisions of O.9 R.9 of CPC. The relief which has been prayed in the present suit could have been prayed much earlier and especially when the first suit was filed in the year 1986 being Spl.Civil Suit No.7/1986. So also, the present suit is barred in view of the provisions of O.2 R.2 of C.P.C. The earlier suit was not withdrawn as per the scheme provided under O.23 of C.P.C., but the same was dismissed for want of prosecution on the day fixed for recording evidence. So, the provisions of O.2 R.2 and O.9 R.9 of C.P.C. would hit the suit of the plaintiff. For short, it is contended that there is no base for filing the present suit against the recovery of the amount in question and, therefore, the same should be dismissed. 2.4 The ld. trial Court framed various issues in view of the rival contentions raised by the parties vide exh.17 and the parties have led oral as well as documentary evidence in support of their pleadings. The plaintiff company has examined his one of the officer Mr. Ramjeevn Rampratap Singhal who was a Manager at relevant point of time vide exh.37 and defendants have examined Executive Engineer Shantilal Liladhar Soneji vide exh.58. Parties mainly have placed reliance on the documentary evidence. Most of the documents have been produced and on admission they have been exhibited and the some of the documents have been proved by the witnesses examined by the parties. 2.5 We feel it necessary to mention certain undisputed or admitted facts; viz:- (i) Installation Checking Squad of GEB had visited the premises of the plaintiff company during 2.2.1982 to 7.2.1982 without prior information; (ii) In the presence of the responsible officers of the plaintiff company, the officers of the Checking Squad installed new Trivector Meter parallel to the old meter on 9.9.1982. Existing Meter was bearing No.12636824 and number of New Parallel Meter was No. 26628293. As per the plaintiff, the old meter was showing the correct reading as to the supply of electricity energy and Trivector meter was moving fast by about 5.87% against the say of the defendant GEB is that the old meter was moving slow to that extent. So, there is no material variation as to the percentage of fast or slow movement of the meter in question. (iii) Defendant GEB had issued supplementary bill to the plaintiff for the period from 6.12.1981 to 9.9.1982 claiming that the old meter which was used for billing purpose, was found moving slow for the said period. (iv) That amount of said supplementary bill has been paid and recovered by the defendant GEB and this recovery is by way of adjustment from the plaintiff's account. At the request of the plaintiff, new meter was removed in the year 1987 and another new- third meter was installed at the premises of the plaintiff company. (v) That installation of fresh third new meter at the request of the plaintiff and the said request was made prior to the date of filing of the earlier suit i.e. Spl. Civil Suit No. 7/1986. (vi) That the plaintiff had filed a suit being Spl.Civil Suit No.7/1986 against the defendants for various reliefs including recovery of the amount of Rs.2,10,304-92. The said suit has been dismissed by the Court on the ground of non-appearance of the plaintiff when the same was listed for recording of evidence after framing of issues. 2.6 After appreciating the evidence and various contentions raised by the parties and oral arguments advanced by the impugned judgment, the trial Court decreed the suit for the entire amount claimed by the plaintiff with running interest at the rate of 12% from the date of the suit till its realisation. The judgment and decree for the full amount with interest has been challenged by way of present appeal. 3. Ld. Senior Counsel Mr. M.D.Pandya appearing for the appellant GEB and Ld. Senior Counsel Mr. B.P.Tanna appearing for original plaintiff, have taken us through the entire oral as well as documentary evidence and have developed their arguments to all relevant legal as well as fact findings recorded by the trial Court. We have also carefully considered the reasons assigned by the ld. trial Judge for accepting the case of the plaintiff in toto. Before appreciating the arguments advanced before us, for the sake of convenience, we would like to deal with certain legal contentions raised by the appellant. According to us, these submissions go to the root of the merits of the case of the plaintiff and substantive reliefs prayed. 4. Copy of the plaint of Spl.Civil Suit No. 7/1986 filed by the respondent plaintiff and having regard to the fact that the suit was dismissed for default under O.9 R.8 of CPC, the subsequent suit i.e. Spl.Civil Suit No.2/1991 being in substance and reality a fresh suit in respect of the same cause of action would be clearly barred in light of the provisions of O.9 R.9. The cause of action shown in the earlier suit by the plaintiff company and the present suit is one and the same. The appellant company has never attempted to see that earlier suit is either restored by the Court or the decision of dismissal of the suit for want of prosecution because of non-appearance of the plaintiff on the date of recording of evidence and after framing of issues, or the decision of the dismissal is challenged in the Court of appeal treating the order having effect of dismissal under O.17 R.2 of CPC. On proper appreciation of the facts mentioned by the plaintiff in the suit and the relevant provisions of the Act and the Rules framed thereunder, it clearly transpires that the plaintiff challenged the validity of the bills, facts leading to preparation and issuance of such supplementary bills, as such it had attempted at the time of filing of earlier Spl.Civil Suit No.7/1986. Mr. Pandya, ld. Senior Counsel appearing for the appellant has fairly submitted that the finding of the ld. trial Judge, though is found legal and proper qua the decision on the issue of barring of the suit on the principles of res-judicata, the adjudication of the issue No.9(b) is not legal. Undisputedly, this is not a case where the defendant Board had either directly or indirectly admitted the claim or part thereof. So, as per the scheme of Rule 9 of O.9 of CPC, as the plaintiff company failed in appearing when the earlier suit was called out for hearing, the Court was compelled to make an order of dismissal of the suit. It is not even the case of the plaintiff respondent that somebody on behalf of the company was physically present in the Court, but on the contrary, it is clear that nobody on behalf of the plaintiff appeared on the date fixed for recording evidence. The dismissal of the suit by passing the order having effect of the order passed under O.17 R.3 and as the earlier suit of the present respondent plaintiff was wholly dismissed under R.8, the plaintiff obviously was precluded from bringing the fresh suit in respect of the same cause of action in view of R.9 O.9. Ld. trial Judge ought to have compared the averments made in both the plaints and especially the nature of relief prayed and cause of action initiated in relevant paras of both the suit plaints while appreciating the arguments advanced by the appellant Board and recording the finding on issue No.9(b). We agree that the order under O.9 R.8 of the CPC is not appealable under O.43 R.1 of CPC and the remedy of the parties is to apply for restoration, but a party who has failed in getting the suit restored, cannot bring a fresh suit modulating or camouflaging the basic facts. We are not convinced by the reasons assigned by the ld. trial Judge that the present suit of the plaintiff is on different cause of action. For the purpose of O.9 R.9, the term "cause of action" is to be construed with reference rather to the substance then to the form of action. The Apex Court, in the case of Suraj Rattan Thirnai and others v/s Azambad Tea Co.Ltd. and Ors., reported in AIR 1965 SC P.295, has observed that :- " Order 9 Rule 9 of Civil P.C. precludes a second suit in respect of "the same cause of action" where the first suit is dismissed for default of appearance of the plaintiff. In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical." Thus, the term "cause of action" is to be construed with reference rather to the substance than to the form of action." When the matter substantively in controversy in the earlier suit and the the subsequent suit are the same, then for want of any formal restoration, the subsequent suit would be barred. Right conferred under O.9 R.9 of CPC debarring a party from instituting a suit on the same cause of action, is a substantive right created in favour of the other side and such a right is not only a procedural right. Ld. trial Judge has failed in appreciating this aspect. So, ld. trial Judge ought to have held that fresh suit on the same cause of action being not maintainable, requires to be dismissed solely on this ground. 5. Ld. Senior Counsel Mr. M.D.Pandya while developing his arguments has fairly accepted that the finding recorded by the Lower Court on the issue No.6 has some legal force and as earlier suit filed by the plaintiff company was not decided on merits, requirement of section 11 of the CPC cannot be said to have been satisfied and, therefore, the 2nd suit could not have been dismissed by treating it as barred by the principles of "res judicata". It is rightly submitted that while dealing with issue No.6, ld. Judge has incorrectly interpreted the scheme of O.2 R.2 of CPC and the effect thereof while dealing with some undisputed facts available on record. Copy of the plaint of previous suit at exh.44 is a relevant document more particularly the relief clause in the said suit and cause of action for filing of that suit,mentioned in relevant para of the plaint. It is clear that the subject matter of the previous suit and the present suit are the same. The parties are also same and the plaintiff is litigating substantially on the same cause and for the amount which could have been claimed on the basis very documents that have been produced as foundation for the present suit. It is true that in the earlier suit, the State of Gujarat was joined as party-defendant and in the present suit the State of Gujarat has not been joined as one of the defendants. Tricky commission of one of the party-defendant in whose absence effective and executable decree can be passed, shall not help the plaintiff in bringing the 2nd suit on the same cause of action or grievance. Undisputedly, the defendant Board has recovered the excess amount from the plaintiff company and from its account and amount lying with the defendant Board. Merely because the said account is not closed or the plaintiff company being a consumer of electricity supply continuing its account maintained by the defendant Board, would not make him entitled to file the 2nd suit as if the suit is filed for statement of accounts. The reference of entry of adjustment effecting recovery of excess amount than payable by the plaintiff company was made much prior to the earlier suit, cannot legitimately be made basis for filing of the suit as these entries were made and referred to by the plaintiff company as one of the basic contention in the earlier suit. Though the officers of the defendant Board has admitted that they are maintaining ledger account of each consumer wherein they are crediting and crediting the amount which the consumers are entitled and debiting the amount payments of which are to be made by the consumers and accordingly entries are also made. In the case of the present plaintiff, though the Board had continued that very ledger account and credit as well as debit entries have been made even after 1986, it cannot be said that there was no final settlement of accounts till filing of the present suit i.e. 2nd suit between the parties. According to us, finding recorded by the lower Court is misconceived that the cause of action would continue till the filing of the present suit and there would not be any embargo in filing of the present suit. Interpretation of document exh.33 dated 1.5.1986 does not give rise to the new/fresh cause of action. It would be incorrect to say that the cause of action is also different than the previous suit and, therefore, there is no element of either omitting or relinquishment of any of the reliefs which could have been prayed in the earlier suit. The finding recorded by the Lower Court is misconceived in holding that O.2 R.2 of CPC is not applicable in this case. On the contrary, according to us, defendant has satisfactorily established by leading oral as well as mainly documentary evidence that the present suit is in respect of the same cause of action as that on which the previous suit was based. It would be incorrect to say that in the previous suit, no evidence was led by any of the parties and the same was dismissed for want of prosecution on failure of the plaintiff to appear and lead evidence and so provisions of O.2 R.2 of CPC is not applicable. According to us, the scheme of O.2 R.2 of CPC is discussed by the lower Court in a bit confused manner. The Lower Court also should have dealt with relevant issue