Municipal Corporation, Patiala (formerly known as Municipal Council) v. Punjab State Electricity Board, Patiala & Anr.

for Mr. Rupinder S. Khosla, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 24.9.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant, was ordered to be dismissed. The plaintiff/appellant, claiming itself to be body corporate, filed a suit on the pleadings, that the plaintiff/appellant has been paying electricity bills as per consumption regularly and the amounts were deposited as per the details mentioned in Annexure B to the plaint. It was also the case of the plaintiff/appellant the the payments were credited to the account of defendant and a certificate was given by the State Bank of Patiala, Dharampura Bazar, in this regard, which was attached as Annexure B, showing that the amount deposited was credited in the account of the defendant-Board. It was claimed, that defendant was, therefore, under legal obligation to supply electricity to the R.S.A. No. 483 of 2010 (O&M) -2- plaintiff/appellant, being an item of public utility services. It is further the case of the plaintiff/appellant that the request made by the appellant in this regard was not replied to by the Board. Even though the plaintiff/appellant had deposited a sum of Rs.3,68,92,231-20 in excess of the amount, which was required to be adjusted against the meter charges. It was, therefore, asserted that the defendant had no right to disconnect the electricity. The suit was contested by the defendant-Board, wherein preliminary objections were taken, that the suit filed was not competent as no resolution authorising the filing of the suit, was placed on record. It was also pleaded that the suit was not signed or verified by duly authorised representative, and was not maintainable in the present form. The suit was said to be false, frivolous and vexatious, thus, liable to be dismissed. It was also the case of the defendant-Board that the copy of the Annexure attached with the plaint was not supplied to the defendant. Besides other preliminary objections, all the averments made in the plaint, were controverted. It was pleaded that amount of electricity bills was outstanding against the plaintiff/appellant and that the plaintiff/appellant had not filed or tendered any document, which could reveal that any excess amount was paid. The plaintiff/appellant also failed to tender receipt issued by the concerned officer of the Board in lieu of receiving of payment. It was specifically pleaded, that the plaintiff/appellant has failed to disclose the account number in which the payment was made, nor the bills against which payment was made, was disclosed. The learned trial Court on the pleadings of the parties, framed R.S.A. No. 483 of 2010 (O&M) the following issues: - -3- “1. Whether the plaintiffs are entitled to decree of declaration as prayed for? OPP Whether the plaintiffs are entitled to decree of permanent injunction as prayed for? OPP Whether the suit is not maintainable as alleged? OPD Whether the suit is false and frivolous etc. as alleged? OPD Whether the suit is barred under Section 41(b) of Specific Relief Act? OPD Whether the suit is time barred as alleged? OPD Whether the suit is bade due to misjoinder of cause of action? OPD Relief.”

8. The plaintiff/appellant lead no evidence in spite of number of opportunities, therefore, the learned Courts below have recorded concurrent finding of fact, that the plaintiff/appellant was not entitled to decree of declaration or permanent injunction. Issues No. 3 to 7 were decided against the defendant-Board, as these were not pressed. In view of the finding recorded on issues No.1 and 2, the suit filed by the plaintiff/appellant was dismissed. An attempt was made by the plaintiff/appellant to amend the plaint by moving application under Order 6 Rule 17 of the Code of Civil Procedure. The application for amendment was also dismissed, as it was filed after the commencement of the trial. It was held that the facts sought to be pleaded were well within the knowledge of the plaintiff/appellant at the time of filing of the appeal. R.S.A. No. 483 of 2010 (O&M) -4- The learned counsel for the appellant, contends that the appeal raises the following substantial questions of law: - “1. Whether the learned Courts below could frame general issue without recording specific issue on the dispute raised?

2. Whether the onus of proof was wrongly placed on the parties? In support of the substantial questions of law, the learned counsel for the appellant contends, that the learned lower appellate Court wrongly placed the onus of proof of issues on the plaintiff/appellant, as it was for the defendant to prove that no payment was made by plaintiff as, it was specifically pleaded that the amount in excess stood deposited in the account of the defendant-Board. It is also the contention of the learned counsel for the appellant, that because onus was wrongly placed, the rights of the plaintiff/appellant have been prejudiced. The learned counsel for the appellant also contended that in view of the pleadings of the parties, it was for the Court to put onus on the defendant, and it was for the defendant-Board to lead evidence. The plaintiff/appellant could not lead evidence for want of decision on the application moved by the plaintiff/appellant for discovery of document, which was not supplied nor any decision was taken thereon. It is also the contention of the learned counsel for the appellant, that because of non-framing of proper issues arising out of the pleadings, rights of the plaintiff/appellant have been prejudiced. On consideration, I find no force in the contentions raised by the learned counsel for the appellant nor substantial questions of law as alleged, arise for consideration in this appeal. The plaintiff/appellant R.S.A. No. 483 of 2010 (O&M) -5- filed a suit for declaration and injunction, the onus of issues No.1 and 2 was placed on the plaintiff/appellant. It cannot be said that onus was wrongly placed or issues were not properly framed, as contended. The plaintiff/appellant did not enter the witness box to make a bald statement in support of the pleading nor any evidence was produced to prove the accounts under which the amount was deposited The substantial questions of law raised are mis-conceived, and do not arise for consideration and otherwise the questions raised are answered against the appellant. No merit. Dismissed. February 04, 2009 R.S. (Vinod K. Sharma) Judge