Hon'ble Sibghat Ullah Khan, J. - (1.) AFTER the death of Learned Counsel for the Respondents, U.P. State Electricity Board and its authorities, notice was issued to them to engage another counsel. Respondents did not engage any other counsel. Accordingly, on 11.10.2011 arguments of Learned Counsel for the Appellant were heard and judgment was reserved.
(2.) THIS second appeal arises out of O.S. No. 899 of 1974 instituted by the Plaintiff Appellant to restrain the Defendants Respondents from realising Rs. 3043.76 as electricity dues from the Plaintiff demanded through notice dated 06.12.1973. II Additional Munsif, Gorakhpur decreed the suit on 17.09.1975 holding that the demanded amount was not due. Defendants were restrained from realising the amount from the Plaintiff. Against the said judgment and decree Defendants filed Civil Appeal No. 149 of 1976, which was allowed by II Additional District Judge, Gorakhpur on 01.11.1978 only on the ground that the suit was not maintainable in view of Section of U.P. Government Electrical Undertaking (Dues) Recovery Act, 1958. According to the said section if after service of notice of demand consumer denies his liability to pay the dues, he must first deposit the said dues with the Prescribed Authority under protest and then he could institute suit for the refund of the dues. This appeal was admitted on 16.08.1978 by the following order: Issue notice. The substantial question of law involved in this case is whether the suit was barred as found by the lower appellate court. Lower appellate court has mentioned in second paragraph of its judgment that it was undisputed that electricity connection given to the Plaintiff was disconnected in December, 1970 allegedly on account of non -payment of some of the charges for consumption of the electricity.
(3.) THE Plaintiff pleaded that in January, 1971 he had given an application to the Defendant for permanent disconnection of electricity to his premises and Defendant No. 3 sent the said application to Defendant No. 2 along with recommendation dated 30.07.1971 for accepting permanent disconnection. The main defence taken by the Defendants was that the Plaintiff was liable to pay Rs. 120/ - per annum per B.H.P. as minimum guarantee. It was further pleaded that no application for permanent disconnection was given by the Plaintiff. It was also pleaded that in the amount demanded through the notice some amount was also due for electricity consumed before disconnection in December, 1970.;