- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the Second Appeal filed by the appellants in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code').
(3.) Background facts, as projected by the appellants, are as follows: The respondent was given electric connection bearing No.LLS-42 by the appellant-Nigam on 11.10.2002. The premises of the respondent were checked by the officials of the appellant-Nigam. It was found that the respondent was committing theft of electricity by providing bolt under the CT Chamber of the meter. On removing the earth strip from the bolt and isolating the bolt from the CT Chamber, it was noticed that there was disconnection of earth/neutral wire which caused the stoppage of the meter. Checking Report in this regard was prepared by the officials. This being a case of theft of electricity, the respondent was charged Rs.11,37,222/- as penalty. Challenging the aforesaid demand by memo dated 12.10.2000, respondent filed a Suit for declaration with consequential relief of mandatory and permanent injunction before the learned Civil Judge (Junior Division), Gurgaon. The appellants filed written statement, inter-alia, raising preliminary objections as regards the maintainability of the Suit. It is pointed out that the same was not maintainable in view of Indian Electricity (Haryana Amendment) Act, 1998 (in short the 'Amendment Act') i.e. Haryana Act No.4 of 1998. Replication to the said written statement was filed by the respondent. The trial Court framed an issue i.e. Issue No.3 in this regard but held that the memo was illegal, null and void. An appeal was filed before the learned District Judge, Gurgaon, before whom the same plea was taken. But the High Court only referred to the submission of the respondent and held that whether theft committed was to be adjudicated by reference to the Electrical Inspector. It was noted that appellant no.1 ought to have brought on record the evidence of some technical person regarding commission of theft and only then it would have been substantiated. In the absence of that, the plea relating to theft cannot be gone into. The Second appeal was dismissed but it was observed that if on independent evidence, commission of theft is established, the appellants are free to proceed to check theft of electricity in accordance with law.;