- (1.) HAVING heard learned counsel for the applicant and in view of grounds mentioned in application, delay of 44 days in filing the instant appeal is condoned. Application stands allowed.
(2.) THIS regular second appeal is directed against the judgment and decree dated 09.12.2013 passed by learned District Judge, Fatehabad whereby appeal preferred by respondents -defendants has been accepted, judgment and decree dated 19.03.2013 passed by the Court of first instance has been set aside and suit of appellant -plaintiff has been dismissed.
(3.) FOR convenience sake, hereinafter reference to parties is being made as per their status in the suit. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for declaration challenging memos bearing no.612 and 614 dated 06.04.2011 raising a demand of Rs. 33,739/ - and Rs. 12,000/ - on the basis of report of checking dated 01.04.2011 with regard to power connection bearing account No.DVID -0814, installed at his premises situated at Bazigar Basti, Jakhal. It has been pleaded that plaintiff is a consumer of the defendants having above mentioned connection. He has been paying regularly for the same and there were no dues against that account. On the basis of checking dated 01.04.2011, defendants issued impugned memos bearing no.612 and 614 dated 06.04.2011 raising a demand of Rs. 45,739/ -. This action of defendants was challenged by plaintiff on a number of grounds which may be reproduced as under: (i) That no checking dated 01.04.2011 as alleged in the impugned notices has never been conducted in the presence of plaintiff or his authorized representative and no any copy of checking report was served to plaintiff ever. (ii) That plaintiff has never been found indulging in theft of energy and plaintiff has never been found consuming electricity dishonestly and plaintiff never consumed, used or abstracted and even never attempted to use, consume or abstract the electricity dishonestly. It is totally incorrect that plaintiff is using direct supply. (iii) That no opportunity of being heard has been given to the plaintiff before issuance of the impugned notices to plaintiff. (iv) That checking officials shown in the impugned notices were not authorized to check the premises of the plaintiff. Moreover, no independent witness was joined at the time of the alleged checking. (v) That the defendants were not authorized to issue the impugned notices since they are not authorized officials. Moreover, the instructions issued by defendants have no force of law since these were not issued by the competent authority. Even otherwise, the notices are wrong, illegal, against the principles of natural justice, arbitrarily, without jurisdiction and not binding on the right of the plaintiff. (vi) That no detail has been provided to plaintiff. (vii) That no notice has ever been given to plaintiff before the alleged checking. Neither the mandatory notice or the information of 24 hours was served/given to plaintiff prior to the alleged checking nor the requisite permission from Executive Magistrate was obtained in this regard. Moreover, the defendants are not authorized officers as per law and they are also not authorized to take any action against the plaintiff unilaterally. (viii) That the alleged checking dated 01.04.2011 as shown in the impugned notices has never been done in the presence of plaintiff or his authorized representative. (ix) That the formula applied by defendant for levying the penalty is totally wrong. Despite oral reminders a number of times, defendants failed to treat these impugned memos as wrong, null and void, therefore, suit was filed. Defendants resisted the suit and filed joint written statement. It has been pleaded that on 01.04.2011, premises of plaintiff were checked and he was found committing theft of electricity. The checking report was prepared on the same day which led to issuance of impugned memos. Other averments in plaint were denied. On the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the impugned notices No.612/13 and 614/15 dated 06.04.2011 issued by the defendants to the plaintiff raising a demand of Rs.33,739/ - and Rs.12,000/ - respectively are illegal, null and void and are liable to be set aside?OPP 2. Whether the defendants are liable to be restrained from effecting the impugned recovery from the plaintiff by adopting coercive methods?OPP 3. Whether the defendants are liable to restore the electricity supply to the premises of the plaintiff as claimed by way of mandate?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiff has no locus standi or cause of action to file this suit?OPD 6. Whether the suit is false and frivolous and is liable to be dismissed with special costs?OPD 7. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 8. Whether the suit is bad for mis -joinder of parties and non -joinder of necessary parties?OPD 9. Whether the civil court at Tohana has no jurisdiction to try and decide the present suit?OPD 10. Relief." After appreciating the evidence, the Court of first instance partly decreed the suit and impugned memo no.612/13 dated 06.04.2011 issued by defendants to plaintiff on the basis of checking report dated 01.04.2011 was declared illegal, null and void and defendants were directed not to recover the penalty amounts from plaintiff on the basis of impugned memo no.612/13 dated 06.04.2011. Feeling aggrieved, defendants preferred an appeal which has been accepted by the lower Appellate Court, judgment and decree of the Court of first instance has been set aside and suit of plaintiff has been dismissed. I have heard learned counsel for appellant and perused the record.;