S.D.O.(Op.)City Sub Division, DHBVNL, Hansi & Anr. v. Narinder

Mr.Mohnish Sharma,Advocate for the appellants **** RAKESH KUMAR GARG J.(ORAL): This is defendants' second appeal challenging the judgement and decrees of the courts below, whereby suit of the plaintiff- respondent has been decreed. As per the averments made in this suit, the electric connection of the plaintiff-respondent was disconnected illegally and without giving him any notice on the basis of some checking conducted on

21.01.2008. The aforesaid suit was contested by the appellants on the ground that the vigilance party had raided the premises of the plaintiff- respondent and meter was found tampered with and therefore, a penalty of Rs.66,884/- was imposed upon him as per rules and thus, the action of the defendant-appellants was in accordance with law. RSA No.374 of 2010(O & M) 2 On consideration of the evidence on record, the suit was decreed and disconnection order Ex.P5/P6 was declared to be illegal with a direction to the appellants to restore the electric connection of the respondent. However, the appellants were given opportunity to take fresh decision with regard to the electricity connection of the respondent after affording him full opportunity. Feeling aggrieved from the aforesaid judgement and decree of the trial court dated 27.08.2008, defendant-appellants filed Civil Appeal No.154 of 27.09.2008, whereas plaintiff-respondent also filed Civil Appeal No.144 of 09.09.2008 before the Lower Appellate Court. Additional District Judge, Hisar, vide impugned judgement and decree dated 03.02.2009 accepted CA No.144 of 09.09.2008 filed by the plaintiff-respondent. However, Civil Appeal No.154 of 27.09.2008 filed by the appellants was dismissed. Feeling aggrieved from the aforesaid judgement and decree dated 03.02.2009 passed in Civil Appeal No.144 of 2008, the defendants have come in this appeal. It may be pertinent to mention that despite the fact that two decrees were drawn by passing the impugned judgement by the Lower Appellate Court, the appellant has not chosen to challenge the decree passed in Civil Appeal No.154 of 2008. Not only this, there is a delay of 65 days in filing this appeal as well 158 days' delay in refiling this appeal (beyond 40 days as permissible). It may be also be relevant to note that while filing this appeal, certified copies of the impugned judgement and decrees were not filed as prescribed under Order 41 Rule 1 CPC and Civil Misc.No.1063-C of 2010 was filed to grant exemption to the appellant from filing the certified copies of the impugned judgement and decrees. It is also relevant to point out that certified copies of impugned judgment and decrees were sought to be placed on record vide CM No.7670-C of 2010 filed on 14.07.2010. RSA No.374 of 2010(O & M) 3 In the aforesaid application, the following submission was made for granting the exemption to the appellant which reads as follows: “That a lot of time and money shall be consumed if the applicant is directed by this Hon'ble Court to produce the certified copy of the judgement and decree of the Ld.trial Court. However, true fair typed copies of the same are being attached herewith”. The aforesaid application was dismissed by this Court on

29.01.2010 and thereafter the case was adjourned to 25.02.2010 for further consideration. On 25.02.2010, the case was adjourned to

07.07.2010 on written request and thereafter, the case was adjourned to

15.07.2010 on the similar request of counsel for the appellant. On 15.07.2010, faced with the situation that the certified copies of the impugned judgement and decrees were placed on record after a considerable delay, learned counsel for the appellant sought a short adjournment and the case was listed for today. Today, Mr.Mohnish Sharma, Advocate has appeared on behalf of the appellant and has made a request for adjournment on the ground that counsel is not well. However, I find that in spite of the fact that casualness was shown by the appellants to pursue the present appeal, no further attempts were made to move an appropriate application. It may also be noticed that in the application for condonation of delay of 65 days in filing this appeal, the following ground has been taken by the appellants: “That the applicants/appellants contacted the present counsel to file the appeal in this Hon'ble Court well within limitation and appeal was prepared on 26.05.2009 and handed over to his clerk to file the same in this Hon'ble Court. However, the clerk forget to file the appeal and kept RSA No.374 of 2010(O & M) 4 the brief of the case in the admitted cases in the counsel office due to mistake. When the appellants contacted the counsel to know about the position of their case, then the brief of the case was searched and it was found in admitted cases. Therefore, the same is being filed in this Hon'ble Court. In this way, a delay of 65 days has been caused in filing the appeal.” The aforesaid application is supported by an affidavit of one Sh.Dharam Pal, who is stated to be clerk of the counsel for the appellant. No documentary evidence has been placed on record to support the plea taken in the aforesaid application. Neither any detail has been given as to on which date the officials of the appellant had visited the counsel's office or the appellant had contacted him to get the information. It may be further noticed that even in the application under Section 151 CPC for condonation of delay of 158 days (beyond 40 days)in refiling the appeal, an affidavit of one Mr.Ashok Kumar Bhanot, Executive Engineer(OP), Division, DHBVNL,Hansi, District Hisar has been filed, wherein it has been stated that there were certain documents which were asked by the counsel for the appellants. However, appellants failed to supply the aforesaid information and documents to the counsel. From the aforesaid facts, it is clearly established that the conduct of appellant DHBVNL pursuing the case was very casual throughout. It seems that the official concerned has not pursued the appeal with due diligence. Therefore, there are no sufficient reasons to condone the delay in filing/refiling the appeal or to allow the appellants to file the certified copies of the impugned judgement and decree which were placed on record vide Civil Misc.No.7670-C of 2010 dated 14.07.2010. In the aforesaid application also, no reasons have been given as to why the certified copies could not be placed on record, earlier. Even, in this application, the only RSA No.374 of 2010(O & M) 5 ground submitted is that the certified copies of the impugned judgement and decrees were not readily available whereas the certified copies placed on record were delivered to the appellant on 10.02.2009. This fact, itself, is sufficient to conclude that the pleadings before this Court are made with impunity and against the record. The affidavits filed by the appellants/applicants in support of CM No.7670-C of 2010 are against the record. Moreover, the appellant has not challenged the judgement and decree passed in Civil Appeal NO.154 of 2008 preferred by the appellant-defendant, therefore the present appeal is not maintainable and would be barred by principles of res judicata in view of the judgement of this Court in Harjeet Singh & ors.vs.Mehar Singh 2010(3)PLR 52. In these circumstances stated above,I find no merit in this appeal also. Resultantly, all the miscellaneous applications along with this appeal stand dismissed. However, Managing Director of the appellant-Corporation to hold an enquiry and fix the responsibility of the delinquent officials/officers who have caused the delay in filing of the appeal and filed the wrong pleadings before the court without verifying the facts. Such report be submitted to this Court within three months.

06.09.2010 (RAKESH KUMAR GARG) JUDGE