Honble MADAN, J.–The appellant Rajasthan State Electricity Board (in short `Board or `RSEB) has come up by way of this appeal before this Court, challenging the judgment & decree dated 16.4.94 passed by the District Judge, Sikar, whereby the said appellate Court allowed the appeal of the respondent plaintiff by modifying the judgment & decree of the learned Munsif, Sikar. (2). The facts relevant for deciding this second appeal are that the plaintiff had filed a civil suit before the Munsif, Sikar, seeking declaration and permanent injunction against the appellant Board. It has been averred in the plaint inter-alia that the plaintiff had obtained connection for supply of electricity in the year 1970 for his water pump installed at his agricultural field. Since there was a dispute bet- ween the plaintiff and his brothers regarding sharing of the electrical connection, which was got disconnected, but in view of the family settlement arrived at between them, fresh connection for supply of electricity was applied for by the plaintiff on 14.8.1985, wherein after completion of the pre-requisite formalities required for restoration of supply of -electricity and accordingly, the supply of elec- tricity was restored and before restoration, the plaintiff got all outstanding dues against electricity charges deposited with the appellant Board to the tune of Rs. 6000/- and, hence there was no outstanding against the plaintiff as on the date of institution of the suit. After restoration of the electricity connection, the appellant Board raised the demand claiming payment of dues towards electricity charges to the tune of Rs. 6665.20p. in the bill, payment of which was to be made by 29.7.86, to which the plaintiff objected and raised the dispute by filing the present suit for declaring the bill of Rs. 6665.20p. as illegal and for restraining the defendant Board by a permanent injunction from disconnecting the electricity supply under the garb of realisation of the said bill. (3). In written statement, the defendant appellant Board contested the suit by denying the averments in the plaint and contending that the bill raised was correct. (4). On the basis of the pleadings of the parties, as many as seven issues were framed by the learned trial Court. (5). The plaintiff examined PW. 1 Bhinvaram & PW. 2 Rameshwarlal in support of his plaint and the defendant examined D.W. 1 S.K. Mehta. (4). On the basis of the pleadings of the parties, as many as seven issues were framed by the learned trial Court. (5). The plaintiff examined PW. 1 Bhinvaram & PW. 2 Rameshwarlal in support of his plaint and the defendant examined D.W. 1 S.K. Mehta. After hearing the par- ties, the learned trial Court dismissed the suit by its judgment & decree dated 27.9.93 deciding issues Nos. 1 to 4 against the plaintiff, the onus to prove the same was on him. Against the said judgment of the trial Court, the plaintiff preferred first appeal before the District Judge, Sikar, who by his judgment & decree dated 16.4.94, partly allowed the appeal and decreeing the plaintiffs suit in part declaring that the defendant RSEB is not entitled to recover Rs. 3760.80p. against the bill in dispute. Against the judgment & decree of the first Appellate Court, the appellant Board has come up in this second appeal. (6). I have heard the learned counsel for the appellant and also perused the record. (7). The case of the appellant Board is that supply of electricity at the plaintiffs agricultural field was disconnected in March, 1984 and till that date, total due amount was Rs. 5,614/- which the plaintiff deposited at the time of restoration of the electricity supply on 15.10.85, and thereafter there was outstanding amount to the tune of Rs. 3760/- as against the minimum charges and further amount of the bills till July, 1986 totalling to Rs. 6,665.20p. because realisable from the plaintiff, liability thereof has been challenged by the plaintiff. (8). The only contention urged by Shri Alok Garg learned counsel for the appellant Board is that the Board is entitled for the minimum charges as per condition No. 30 of the General Conditions of Supply & Misc. Charges of Electricity Rules and, therefore, the first appellate court has committed an error of law in not considering this aspect of the case while partly decreeing the suit of the plaintiff for the period during which the electric connection remained disconnected and for which Rs. 3760/- had been claimed as minimum charges. In support of his contention, Shri Garg has relied upon the decisions in Bihar S.E.B. Patna vs. M/s. Green Rubber Industries (1) and Orissa S.E.B. vs. Orissa Tiles Ltd. (2). (9). 3760/- had been claimed as minimum charges. In support of his contention, Shri Garg has relied upon the decisions in Bihar S.E.B. Patna vs. M/s. Green Rubber Industries (1) and Orissa S.E.B. vs. Orissa Tiles Ltd. (2). (9). Despite service of the notice upon the plaintiff respondent, neither the respondent nor his counsel appeared to counter the case of the appellant Board. (10). I have given my thoughtful consideration to the contentions of the learned counsel for the appellant Board and legal aspect of the case. Condition No. 30 of the General Conditions of Supply & Misc. Charges of Electricity Rules reads as under- ``30. Discontinuance of supply - (i) The Board reserves the right to discontinue supply to a consumer on giving 24 hours notice in writing if there is reason to believe that the consumer is contravening any of the provisions of the Act or of these conditions of supply or committing of breach of the agreement with the Board or in the event of the consumers bankruptcy or the execution of any assignment for the benefit of the consumers creditors or, if the consumer is a limited company, in the event of compul- sory or voluntary liquidation. (ii) In the event of the supply being disconnected for any reasons detailed above, all the money then payable by the consumer shall become due and recoverable forthwith and the consumer shall continue to pay the monthly minimum charges and the minimum guar- antee, if any, for the unexpired period of the agreement or, where is no written agreement, for the period which would have been applicable if an agreement had been executed. (iii) When the consumer has been disconnected on account of non payment of dues or for reasons mentioned in sub clause. (11). At the very outset, I must make it clear that the case set- up in this second appeal has never been pleaded either in written statement or oral or documentary evidence by the appellant defendant. For the first time, before the first appellate court the defendant while contesting the first appeal of the plaintiff asserted as to the minimum charges even though the supply was at a stage disconnected for non payment of electricity charges. For the first time, before the first appellate court the defendant while contesting the first appeal of the plaintiff asserted as to the minimum charges even though the supply was at a stage disconnected for non payment of electricity charges. Similar is the position as to the case set up by the appellant RSEB in this second appeal for the maintainability of the suit, itself, in the light of the judgment of the Apex Court in Punjab S.E.B. vs. Ashwant Kumar (3) be- cause no issue was framed as to the maintainability before the trial Court nor any evidence was led by the defendant to establish such a case nor any such assertion was made during arguments before the first appellate Court. (12). The first appellate court after analysing the provisions contained in Condition No. 30 of the General Conditions of Supply & Misc. Charges of Electricity Rules as aforesaid arrived at the findings that either of the parties has never asserted as to whether there was an agreement duly executed between the RSEB and the consumer plaintiff and what was and could have been the term of the agreement, if any, whereas defendants witness D.W. 1 S.K. Mehta admitted in his statement that supply to plaintiffs well was permanently disconnected in March, 1984, which was restored on 15.10.85 as per plaint and as established by D.W. 1 in his oral evidence. D.W. 1 further deposed that prior to the restoration of electricity supply, the dues were received by the RESB and that out of the bill of Rs. 6665.20p.. disputed in the suit, Rs. 3760.80p. pertained to the period during which electrical supply remained disconnected permanently on the basis of the evidence on record. The first appellate court arrived at the conclusion that the dispute was restricted to a sum of Rs. 3760.80p. which was claimed by the RSEB as minimum charges. In my considered view, such a finding of the first appellate court based on proper appreciation of evidence and material on record, cannot be upset and held to be erroneous or perverse and does not warrant any exercise of jurisdiction by this Court under Section 100, CPC. (13). Clause (ii) to Condition No. 30 of the General Conditions of Supply & Misc. Charges of Electricity Rules, contemplates that in the event of supply being disconnected for any reasons detailed in Cl. (13). Clause (ii) to Condition No. 30 of the General Conditions of Supply & Misc. Charges of Electricity Rules, contemplates that in the event of supply being disconnected for any reasons detailed in Cl. (1), all the money then payable by the consumer shall become due and recoverable forthwith and the consumer shall continue to pay the monthly minimum charges, if any, for the unexpired period of the agreement or where there is no written agreement for the period, which would have been applicable if an agreement had been executed. (14). A careful perusal of Clause (ii) to Condition No. 30 of the aforesaid General Condition Rules makes it precisely clear that this clause (ii) is applicable in the event of the supply being disconnected for reasons detailed in clause (i) which provides that the Board reserves the right to discontinue supply to a consumer if there is reason to believe that the consumer is contravening any of the provisions of the Act or of the conditions of supply or committing the breach of the agreement with the Board. From the pleadings of the RSEB it is explicitly clear that the RSEB had neither pleaded nor proved that it had discontinued the supply to the plaintiff or had given 24 hours notice in writing before discontinuing the supply as there was reason to believe that the plaintiff was contravening which of the provisions of the Act or of the Conditions of supply or committing the breach of the agreement with the Board as alleged. Undisputed facts are that the Board did not produce any agreement with the consumer or notice, which might have been served on the consumer as envisaged in clause (i) of Condition No. 30, referred to above. In these circumstances for the case set-up entirely for the first time in second appeal before this Court. Clause (ii) of Condition No, 30 of the General Condition of Supply Rules is not applicable to the claim of the plaintiff for being charged at the minimum even though the supply was at a stage disconnected for non payment.of electricity charges. (15). Orissa S.E.B. Vs. Clause (ii) of Condition No, 30 of the General Condition of Supply Rules is not applicable to the claim of the plaintiff for being charged at the minimum even though the supply was at a stage disconnected for non payment.of electricity charges. (15). Orissa S.E.B. Vs. Orissa Tiles Ltd. (supra) was a case of consumers liability to pay minimum charges and where the agreement with consumer for supply of electricity for a specific period was held that stipulating payment of certain minimum charges even though the supply was at a stage disconnected for non-payment of electricity charges and was never restored, the consumer was liable to pay the minimum charges. The decision in Bihar S.E.B. Patna Vs. Green Rubber Industries (supra) was relied in Orissa S.E.B. Vs. Orissa Tiles Ltd. which was also a case where the claim inter alia pertained to the period subsequent to the date of disconnection till the expiry of the agreement and wherein also, minimum charges were claimed by the Board even for the period during which the supply remained disconnected. In my view, the ratio of the aforesaid decisions is also totally distinguished and are not applicable to the facts of the present case where no agreement has been either pleaded or produced in the evidence by the RSEB. (16). Second limb of arguments canvassed by the appellant Board in the present appeal is that the plaintiffs suit was not maintainable in view of the judgment of the Apex Court in Punjab S.E.B. Vs. Ashwant Kumar according to which Civil Court will have no justification entertaining the suit and giving the decla- ration without directing the party to avail of the remedy. (17). Last argument urged on behalf of the appellant is that in the present suit, the liability to pay the due amount was assailed by the plaintiff, whereas as per Sec. 5 of the Rajasthan Governmental Electrical Undertaking Dues Recovery Act, 1960 deciding of the liability to pay the dues could only arise after depositing the amount in question with the prescribed authority. Section 5 of the aforesaid Recovery Act explicitly stipulates-(1) where a notice of demand has been served on the debtor or his authorised agent under Section 4, he may, if he denies his liability to pay the dues, penalty or costs or any part of any of them institutes a suit after depositing with the prescribed authority the aggregate amount specified in the notice of dem- and under protest in writing for the refund of the same; (2) a suit referred to in sub-section (1) may be instituted in a civil court of competent jurisdiction at any time within six months from the date of deposit with the prescribed authority and subject to the result of such suit the notice of demand shall be conclusive proof of the various dues, penalty and costs mentioned therein. (18). Section 4 of the aforesaid Recovery Act 1960, where the dues are not paid by a debtor by a date specified in the bill therefore, the prescribed authority may at any time serve or cause to be served upon him a notice of demand in the prescribed form stating the name of the debtor, the amount payable by him on account of the various dues, penalty and costs of recovery and the undertaking to which it is payable. "Prescribed authority" is defined in Section 2 (e) of the aforesaid recovery Act as under- ``(e) `prescribed authority means any person authorised, whether by virtue of office or otherwise, by the State Government, by notification in the Official Gazette, to perform the functions of the prescribed au- thority under this Act in and for such area as may be specified in the notification. (19). I may point out at the outset that the case set up as aforesaid by the appellant in this appeal is totally new and akin to the pleadings since no such case has been pleaded in the written statement, what to talk of any proof in the defen- dants evidence. (19). I may point out at the outset that the case set up as aforesaid by the appellant in this appeal is totally new and akin to the pleadings since no such case has been pleaded in the written statement, what to talk of any proof in the defen- dants evidence. None of the defendants witnesses stated that any notice of demand as envisaged in Section 5 of the aforesaid Recovery Act was ever served on the plaintiff debtor in the prescribed form for any dues/recovery unless such notice as contemplated u/s 5, ibid, is proved in the evidence to have been served upon the debtor, the appellant cannot assert that the liability to pay the dues could only arise after depositing the disputed amount in question with the prescribed authority at first instance. Hence the arguments advanced on behalf of the Board render no assistance to the appellant Board in the present appeal and hence no interference is warrant in view of the well settled law that the Court should normally refrain from interfering with the findings recorded by the Court below on close appreciation of evidence unless any illegality or jurisdictional error or perversity has been committed, which I do not find in the present case. Rather the Act of 1960 particularly Section 5 thereof makes it explicitly clear that there is no bar curtailing right to file suit if the debtor like the plaintiff denies his liability to pay the dues. In view of such a specific provision, it cannot be held that in the facts and circumstances of the case, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act. Moreover, the defendant has never pleaded in the written statement nor proved in his eviden- ce that the plaintiff has alternative remedy provided under any law or statutory instructions issued by the Board and since he failed to avail of the statutory remedy, suit was not maintainable. Moreover, the defendant has never pleaded in the written statement nor proved in his eviden- ce that the plaintiff has alternative remedy provided under any law or statutory instructions issued by the Board and since he failed to avail of the statutory remedy, suit was not maintainable. Thus, the appellant having failed to set-up such a case in his pleadings, cannot be allowed to set-up entirely a new case for the first time in the second appeal, which cannot be entertained by this Court even if contrary view is possible and even if visited by gross error, finding of facts based on proper appreciation of evidence and material on record should not be upset !in second appeal. Therefore, the ratio laid down in Punjab S.E.B. vs. Ashwani Kumar (supra) and Orissa S.E.B. vs. Orissa Tiles Ltd. (supra) are totally distinguishable and cannot be applied without commenting upon the principles laid down in those cases. On a careful perusal of the first appellate courts judgment, I find that the findings rendered by the said court are very well reasoned and based on material placed before it and hence the contrary conclusions are not sustainable. The first appellate court in its judgment has appreciated all relevant oral and documentary evidence. As a result of the above discussion, I do not find any valid ground to interfere with the judgment of the first appellate Court. This second appeal does not involve any substantial question of law and hence is not sustainable in the facts and circumstances of the case. (20). In the result, this second appeal is dismissed summarily and the impugned judgment & decree dated 16.4.94 passed by the District Judge, Sikar is un- held.