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1997 DIGILAW 156 (GUJ)

Kesara Viraji Patel v. Gujarat Electricity Board

1997-03-11

J.M.PANCHAL

body1997
J. M. PANCHAL, J. ( 1 ) THIS Second appeal is directed against the judgment and decree dated August 7, 1993 passed by the learned extra-Assistant Judge, Kachchh at Bhuj in regular Civil Appeal No. 30 of 1986, by which the decree dated March 7, 1986 passed by the learned Civil judge (Jr. Division) nakhatrana (Kachchh) in Civil Suit No. 18 of 1984 is reversed. ( 2 ) THE appellant is one of the consumers of Gujarat Electricity Board. For recording consumption of energy, a meter was installed at the premises of the appellant. On May 8, 1984, the meter was checked by the officers of the Gujarat Electricity Board and it was found that the meter was tampered with. The rojkam was prepared in the presence of Panchas and thereafter, the meter was removed by the officers of the Board. The appellant was served with a letter dated May 29, 1984 informing him that the appellant had committed theft of electric energy. Appellant was also served with an additional bill dated May 29, 1984 and was called upon to make payment of Rs. 11,851. 88p. On receipt of the bill, appellant instituted Civil Suit No. 18 of 1984 in the court of learned Civil Judge (J. D.), Nakhatrana at Kachchh and prayed to declare the bill to be illegal. The appellant also prayed for mandatory injunction directing the Gujarat Electricity board to instal a meter at is original place and not to remove the same thereafter. ( 3 ) THE suit of the appellant was contested by Gujarat Electricity Board vide written statement Exh. 19. It was inter alia contended that the appellant had committed theft to energy and, therefore, suit was liable to be dismissed. ( 4 ) THE learned Judge framed nine issues for determination vide Exh, 20. In support of his case, the appellant examined Premji Kesra, his son at Exh. 43. The respondent also led necessary evidence in support of its claim. After considering the evidence on record, the trial Court held that the officers of G. E. Board had removed the meter illegally and, therefore, the additional bill raised on behalf of the Board was null and void. The Trial court also declared that the appellant had not committed any pilferage of electricity. In view of these conclusions, the Trial Court decreed the suit by a judgment and order dated March 7, 1986. The Trial court also declared that the appellant had not committed any pilferage of electricity. In view of these conclusions, the Trial Court decreed the suit by a judgment and order dated March 7, 1986. ( 5 ) FEELING aggrieved by the aforesaid decree, the Gujarat Electricity Board preferred regular Civil Appeal No. 30 of 1986 in the district Court, Kachchh at Bhuj. The learned extra-Assistant Judge, Kachchh at Bhuj who heard the appeal has allowed the same by a judgment and decree dated August 7, 1993, giving rise to the present appeal. ( 6 ) THE submission that Exh. 63 panchnama should not have been relied on as panchas were not examined, has no substance. From what is stated in para 7 of the impugned judgment, it is evident that Exh. 63 was admitted in evidence with the consent of the parties. As Exhs. 63 and 64 were admitted in evidence with the consent of the appellant, it cannot be said that any error was committed by the first Appellate Court in taking into consideration the contents of those documents. On appreciation of evidence, and more particularly, contents of Exh. 63, the Appellate court has concluded that glass of the meter was broken and the seal applied on the meter was tampered with. It is also held that the seal wires were reconnected after removing them from terminal cover, and there was no seal cover on the body of the meter. Having regard to the statement of Nanji Virji exh. 64 and the contents of the Panchnama exh. 63, the first Appellate Court has disbelieved the case pleaded by the appellant that the meter was damaged by mice. On appreciation of evidence, the first Appellant Court has rightly come to the conclusion that Premji kesra who was son of the appellant was not power of attorney holder of the appellant but the affairs of the appellant were being looked after by his son Nanji Kesra. The question whether the meter installed by Gujarat electricity Board was tampered with or not; or whether appellant had committed theft of energy or not, are essentially questions of fact and not of law, much less substantial questions of law. It is not brought to the notice of the Court that while recording findings of facts against the appellant, any evidence led by the appellant is ignored by the first Appellate court. It is not brought to the notice of the Court that while recording findings of facts against the appellant, any evidence led by the appellant is ignored by the first Appellate court. Jurisdictional sweep of the High court in second appeal is very much circumscribed. Findings of fact cannot be interfered with unless they are totally and manifestly erroneous, preverse or indicate non-application of mind. In absence of cogent reasons, the Trial Court should not have interfered with the conclusion arrived at by domestic tribunal that the appellant had tampered with the meter and committed theft of electricity. In fact contents of panchnama Exh. 63, which was prepared in presence of the son of the appellant fully establishes that the appellant had committed theft of energy. Under the circumstances, the additional bill issued to the appellant was not illegal at all and was not liable to be set aside. As the findings are reached by the first Appellate Court on proper appreciation of the evidence. I am of the view that substantial questions of law as suggested by the appellant do not arise for consideration of the Court, and, consequently, this appeal is liable to be dismissed. ( 7 ) FOR the foregoing reasons, I do not find any substance in the Second Appeal. Therefore, Second Appeal fails and is summarily dismissed. Appeal dismissed. .