- (1.) The instant second appeal has been filed by the appellants against the judgment and decree dated 26.02.2007 passed by the Addl.District & Sessions Judge, Abu Road, in civil appeal No.36/1997 by which the learned Judge dismissed the appeal and confirmed the judgment and decree passed by the Civil Judge (Sr.Divn.), Mount Abu in civil original suit No.108/1989 dated 29.09.1997 by which the learned Civil Judge decreed the suit in favour of the plaintiff. The brief facts giving rise to this second appeal are that the respondent plaintiffs filed a civil suit for permanent and mandatory injunction for rejection of documents against the appellant defendants before the learned trial court stating that the plaintiff is running a shop for which he took electricity connection from the defendants and the Account No. is 1346/1-2-117. The electricity consumption was recorded by the defendants as 3500 units . The plaintiff made an application on 19.11.1988 for inspection of electricity meter. The appellant defendants sent the bills of electricity consumption for a sum of Rs.5713.10. Thereafter, the respondent plaintiff filed another application for replacing the meter and the electricity meter of plaintiff was sent for testing in the Laboratory and it was found in correct position. The learned trial court framed 6 issues and decided all the issues in favour of plaintiff-respondents and against the appellant- defendants and decreed the suit vide its judgment dated 29.09.1997, against which the appellant defendants preferred an appeal before the learned Addl.District & Sessions Judge, Abu Road, who dismissed the appeal vide its judgment and decree dated 26.02.2007 and affirmed the judgment and decree passed by the learned trial court. Aggrieved by the judgments passed by the learned courts below, the appellant defendants have preferred this second appeal.
(2.) Counsel for the appellant contended that the judgment and decree dated 26.02.2007 passed by the learned appellate court as well as the judgment and decree dated 29.09.1997 passed by the learned trial court are against the facts on record and contrary to law, therefore, they deserve to be set aside. Counsel further contended that the substantial question of law involved in the second appeal is that whether the express and implied bar of the jurisdiction of the civil court due to the arbitration clause and the remedy as provided under the Electricity Act, the suit decided by the learned trial court is contrary to the provisions of law I have perused the judgment of the learned trial court as well as the first appellate court.
(3.) In all, there were 6 issues, out of which the burden of proving Issue No. 1 & 2 was upon the plaintiff and the burden of proving issue No.3, 4, 5 was upon the defendant . The learned trial court, as well as the learned first appellate court, appreciated the evidence of both the side and came to the conclusion that the Electric Meter installed at the residence of the plaintiff, was defective and further both the courts below recorded their finding that the plaintiff defendant served Ex.11, Ex.12, Ex.13 and Ex.14 notices / applications for repairing of his electric meter, showing it to be defective and the witnesses examined on behalf of the defendant DW/1 Umesh Mathur, the then Asstt. Engineer, Rajasthan State Electricity Board, stated in his cross examination that whether Ex.11 to Ex.14 were received in his office, he can not say and even he has shown his ignorance about the receipt of the notice. The applications of plaintiff , Ex. 1 to Ex.14, clearly shows that his intention was always to get his electric meter repaired because soon after having informed by the Meter Reader about the defect of the meter, he applied for the repair of the same and DW/1 Umesh Mathur, in his cross examination, admitted that the meter which was sent to Electric Inspector for examination was not sealed before him and whether the report of the Electric Inspector which was received was in respect of the meter of the plaintiff or any other meter. The consistent consumption of the electricity, even before and after the change of the meter, remained almost the same reading except for the period in which the meter remained defective and depicted the excessive reading. There is a provision in the Electricity Act that in case of defective meter, the meter should be sent to the Electric Inspector for repairing but the evidence adduced by the defendant does not show any definite evidence to the effect that the meter remained in the sealed condition till it reached the office of the Electric Inspector. Further, the number of the meter has not been referred in the evidence of the defendant's witness. In my considered opinion, the questions raised in the memo of appeal are purely questions of facts and no question of law is involved in this second appeal and there is a concurrent finding on the question of facts, therefore, no indulgence is warranted at this stage, so as to set aside the decree and order passed by the learned trial court and affirmed by the first appellate court.;