MANGERAM DAULATRAM AGARWAL v. UNION OF INDIA — 1992 DIGILAW 223 (GUJ)

J. N. BHATT, J. ( 1 ) IN this appeal under Section 96 of the Civil Procedure Code (Code for short) the appellant/original plaintiff has questioned the dismissal of Civil Suit No. 385 of 1983 passed by the City Civil Court Judge Ahmedabad on 23 ( 2 ) SOME material facts giving rise to the present appeal needs narration. M/s Daulatram Mangilal was allotted and installed a telephone No. 442340 in Ahmedabad at the residence of the appellant and the appellant-Mangeram Daulatram Agarwal is the sole proprietor of the said concern. The appellant who is the original plaintiff initiated the suit in the Trial Court for a declaration that the respondents/original defendants are not entitled to the amounts shown in the telephone bills in respect of the said telephone number for different periods. The said telephone came to be disconnected on the ground of non-payment of telephone bills. The plaintiff is also having two telephone connections at Calcutta bearing No. 357400 and 357401. The plaintiff received a notice for the disconnection of telephones at Calcutta on account of non-payment of telephone bills at Ahmedabad. Therefore the plaintiff filed the suit. ( 3 ) THE defendants appeared and resisted the suit of the plaintiff denying all the allegations. According to the contention of the defendants the complaints about excessive billing made were investigated into and no substance was found therein. On the contrary the department found that there was excessive use of STD facility made by the plaintiff for long distance calls at Bombay Calcutta Rajkot etc. The grievance of the plaintiff was personally examined by the General Manager Ahmedabad Telephones and no justification was found by him. The department also relied on the testing report and the documentary evidence of the department. It was pointed out by the department that during the period of observation it was found that the plaintiff used to call upto 30 minutes at various stations like Calcutta Bombay Madras etc. on STD. The report made by the department had shown that the meter registered 2040 calls during the said period of observation which came to average 250 calls per day. It was the defence of the department that there was no fault or any negligence on the part of the department and therefore the subscriber was liable to pay the bills as demanded. It was the defence of the department that there was no fault or any negligence on the part of the department and therefore the subscriber was liable to pay the bills as demanded. It was also contended by the department that the defendants are entitled to disconnect the plaintiffs any other telephone situated in any part of the country under various provisions of the Indian Telegraphs Rules. ( 4 ) THE plaintiff placed reliance on the evidence of power of attorney holder Kamlesh Agarwal who was examined at Exh. 24. The department relied on the evidence of one Divisional Engineer Joitabhai Prabhudas Patel at Ex. 51. The parties also relied on the documentary evidence. ( 5 ) IN view of the facts and circumstances of the case and the evidence on record the Trial Court was pleased to hold that there was no substance in the suit. Therefore the suit of the plaintiff came to be dismissed and the interim injunction granted on 26-7-1983 in the notice of motion proceedings came to be vacated. Not only that the Trial Court was pleased to direct the plaintiff to pay compensatory cost in the sum of Rs. 1 0 over and above the cost of the suit to the defendants in the circumstances of the case. ( 6 ) BEING aggrieved by the said judgment and decree the original plaintiff has now come up before this Court challenging its legality and validity. ( 7 ) HAVING examined the facts of the present case and having read the judgment under challenge this Court is satisfied that there is no fit case to interfere with the impugned judgment and decree. The Trial Court has appreciated the evidence and the factual scenario in its proper perspective while dismissing the suit of the plaintiff with compensatory cost. ( 8 ) THE learned Counsel for the appellant contended that the Trial Court has committed a serious error in deciding issue No. 3 pertaining to the jurisdiction. It is true that the Trial Court had held that it has no jurisdiction to hear the suit as the plaintiff has not followed the procedure of the Ahmedabad Telephones by filing Appeal before the Area Manager or the Competent Authority against the rejection of the complaints. The suit is not dismissed only on this technical ground. The suit is decided on merits. The suit is not dismissed only on this technical ground. The suit is decided on merits. Therefore the question as to whether the finding of the Trial Court with regard to issue or jurisdiction is correct or not would not assume much significance. Once the suit is disposed of on merits after appreciation of evidence the question of jurisdiction pales into insignificance. Had the Trial Court decided the suit of the plaintiff only on issue No. 3 the question would have been different. The suit is dismissed on merits after appraising and analysing the facts emerging from the evidence on records. Thus the impugned judgment and decree is passed on full-fledged decision and not on technical point of jurisdiction as contended. Therefore the said contention does not help the appellant/original plaintiff. ( 9 ) THE complaint made by the plaintiff on 2 to the department was attended and the plaintiff was called for personal representation on 23-6-1981. But he did not avail of the opportunity. The plaintiff also complained of excessive bills in respect of the residential telephone No. 442340 for the following period : Sr. No. Period Amount 1 11 to 10-4-1981 8735. 2 2 11 to 10-7-1981 17607 3 11 to 10-10-198 16444 4 11 to 10-1-1982 27841. 3 ( 10 ) IT is very clear from the evidence that the complaint dated 2 - 5- 1981 was immediately attended but the plaintiff did not turn up for representation. During the period from 11-1-1981 to 10-4-1981 the plaintiffs telephone recorded high calling rate and therefore obviously his complaint was without any substance. It may be noted that the plaintiff was called for personal hearing again on 26-11-1981 in respect of the second complaint but the plaintiff did not remain present on that occasion also. It is found from the evidence on record that the plaintiff was informed telephonically on 1-11-1981 to remain present on 26-11-1981 for personal hearing in respect of his complaint. The department rightly found that in view of the excessive use of STD facility for long distance calls at Bombay Calcutta Rajkot etc. there was no substance in the complaint of the plaintiff. It may be noted that plaintiffs case was personally examined by the General Manager Ahmedabad Telephones who was satisfied that there was no justification in the complaint of the plaintiff as the plaintiff had made use for long distance calls on STD. there was no substance in the complaint of the plaintiff. It may be noted that plaintiffs case was personally examined by the General Manager Ahmedabad Telephones who was satisfied that there was no justification in the complaint of the plaintiff as the plaintiff had made use for long distance calls on STD. Even the observation report for the period from 2-4-1982 to 10 showed that the plaintiff used to talk upto 30 minutes at various stations like Calcutta Madras etc. The said chart had shown that the meter registered 2040 calls during the said period which means an average call of 250 per day. Apparently there was no fault of the department. Obviously there was no misuse of telephone on the part of the department staff. Therefore on account of non-payment of telephone bills the said telephone was disconnected on 17-6-1982. The plaintiff was informed on 28-5-1982 to pay the arrears of telephone bills. Again on 7-6-1982 the plaintiff was informed on telephone in this behalf. In the facts and circumstances the Trial Court has rightly found that the impugned telephone bills were not excessive as alleged by the plaintiff. ( 11 ) THE department relied on the evidence of Divisional Engineer J. P. Patel at Ex. 51. His evidence is found quite trustworthy. The department has also produced documentary evidence. The complaints made by the plaintiff were attended promptly. The plaintiff was time and again called for representation and for personal hearing. But the plaintiff did not avail such opportunities. The telephone in question was kept under observation for a long time by the department. The department concluded that the meter was working properly. There was no any defect therein. The report of the department is produced at Ex. 52. The TRD Form No. 325 was also produced. The test was done in pursuance of the complaint made by the plaintiff with regard to excessive bills. The meter in question was found working in normal condition. General checking was also carried out by the department. The distribution point situated outside the plaintiffs house was also checked and it was found normal. Unfortunately the plaintiff rushed to the court and obtained interim order by virtue of which his telephone was reconnected. The telephone was disconnected by the department on 17-6-1982. Thereafter the plaintiff obtained interim order on 27-9-1983 and the telephone was reconnected. The distribution point situated outside the plaintiffs house was also checked and it was found normal. Unfortunately the plaintiff rushed to the court and obtained interim order by virtue of which his telephone was reconnected. The telephone was disconnected by the department on 17-6-1982. Thereafter the plaintiff obtained interim order on 27-9-1983 and the telephone was reconnected. The plaintiff had not paid full amount of telephone bills. The Trial Court has observed in the judgment in para 12 that when the plaintiffs telephone was disconnected on 17-6-1982 he was required to pay telephone bills of Rs. 85 358. 2 Learned Counsel for the appellant/original plaintiff half - heartedly contended that the said observation is not correct. But he has not been able to show what was the correct amount due at that time. The plaintiff rushed to the court when he received the notice of disconnection of his Calcutta telephones. In fact the plaintiff filed the suit eight months after receipt of the said letter from the Calcutta Telephone Authority. Needless to mention that the interim order should not have been granted to such a plaintiff who enjoy STD telephone facility and made extensive use of STD facility and has office of business in various parts of the country like Calcutta Bombay Madras Rajkot etc. It is not in dispute that the plaintiff has been using STD facility from the inception and the said facility is still being enjoyed by him. It is not in dispute that the plaintiff is a businessman and he is running business at Calcutta and is also a subscriber to two telephones bearing Nos. 357400 and 357401. The Trial Court has also rightly relied on Rule 443 of the Indian Telegraphs Rules holding that the Department has right to disconnect other two telephones in view of the non-payment of telephone bills in respect of the telephone at Ahmedabad. ( 12 ) IN these circumstances this Court is in broad agreement with the Trial Court. The final conclusions arrived at by the Trial Court is required to be confirmed. No illegality is pointed out. No perversity is spelt out. No misreading of evidence is shown. No misinterpretation is suggested. Since there is no substance in this appeal it is required to be dismissed at the threshold. ( 13 ) LEARNED Counsel for the appellant/original plaintiff Mr. No illegality is pointed out. No perversity is spelt out. No misreading of evidence is shown. No misinterpretation is suggested. Since there is no substance in this appeal it is required to be dismissed at the threshold. ( 13 ) LEARNED Counsel for the appellant/original plaintiff Mr. Raju has also submitted that the plaintiff should be given some time so that he can pay up the arrears of telephone bills. This Court reluctantly grants 15 days time for the payment of full arrears of telephone bills so far issued in respect of the aforesaid residential telephone of the plaintiff. The respondents-department shall not disconnect the said telephone for a period of 15 days from today as the plaintiff is given time to pay up the full arrears within 15 days from today. ( 14 ) IN view of the aforesaid observation this appeal is summarily dismissed. There shall be no order as to costs. Appeal summarily dismissed. .