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1998 DIGILAW 257 (RAJ)

A. E. N. R. S. E. B. v. SHYAM SINGH

1998-02-20

P.C.JAIN

body1998
Judgment P. C. JAIN, J. ( 1 ) I propose to dispose of these revision petitions by this composite order inasmuch as the points arising for adjudication are identical. ( 2 ) THE non-petitioners are agriculturists. Each non-petitioner-plaintiff obtained an electric connection from the petitioner-defendant for his tube-well for running electricity motor of 30 hp. The defendant used to issue bills to the plaintiffs for the aforesaid sanctioned load in the past and which was also paid by the plaintiff-non-petitioner. According to the agreement entered into between the R. S. E. B. and the consumer, the consumer could not take more load for running of his motor than what has been sanctioned. In order to ensure the above condition, the petitioner-defendant effected checking from time to time by deputing its Vigilance Staff. The above Vigilance Staff checked the meters of the plaintiff with the help of modern electronic instrument. The instrument is absolutely accurate in judging the load of the motor of the plaintiff. On 27-11-1996 the defendant-petitioner checked the motor pump of the various consumers including the non-petitioner-plaintiff and it was found that the non-petitioner-plaintiff was taking load in excess of the sanctioned load. The checking report was prepared on the spot in presence of the plaintiff-non-petitioner and on the basis of the above checking report, for violation of the agreement, a demand was created for payment of excess load used by the plaintiff @ Rs. 1250/- per horse power and 25% of the above calculated amount + Rs. 100/- per horse power as penalty for unauthorised use of excess load as provided in the order No. 198 dated 2-8-1996 of the Board. A demand was accordingly raised and sent to the non-petitioner-plaintiff for payment. The plaintiff-non-petitioner, on receiving the demand note of the excess load taken by him, challenged the same by filing civil suit in the Court of Civil Judge (Jr. Divn.), Jaitaran in which the correctness of the Vigilance Report and the demand raised on that basis were assailed. Along with the suit, the non-petitioner-plaintiff also filed an application under Order 39, Rules 1 and 2 read with Section 151, C. P. C. in which it was prayed that the defendant-petitioner be restrained from disconnecting the electric supply of the plaintiff on account of non-payment of the demand raised by the Board. Along with the suit, the non-petitioner-plaintiff also filed an application under Order 39, Rules 1 and 2 read with Section 151, C. P. C. in which it was prayed that the defendant-petitioner be restrained from disconnecting the electric supply of the plaintiff on account of non-payment of the demand raised by the Board. The said application was stoutly opposed by the defendant-petitioner on various grounds and the trial Court, after hearing both the parties, rejected the application of the plaintiff-non-petitioner for the grant of temporary injunction vide order dated 4-2-1997. The plaintiff-non-petitioner filed an appeal against the above order which was allowed by the learned appellate Court vide order dated 24-7-1997. As a result of the above order, the petitioner-defendant has been restrained from releasing the demand raised by them on the basis of checking made by the Vigilance Department and also from disconnecting the connection of the plaintiff for non-payment of the above demand. ( 3 ) I have heard Shri R. K. Singhal appearing on behalf of the petitioner. Shri A. K. Rajvanshy was also heard who appeared on behalf of some of the non-petitioners-plaintiffs. All the non-petitioners were served with a show cause notice in pursuance of the order dated 20-11-1997. ( 4 ) SHRI Singhal has very vehemently contended that the trial Court has very correctly dismissed the application of the plaintiff-non-petitioner on the ground that no irreparable loss would be caused to the plaintiff-non-petitioner in case the issue of temporary injunction was withheld. The plaintiff could have deposited the above amount under protest and could have continued to pay future bills and get the dispute settled in the suit. The demand raised against the plaintiff was with-in the range of their capacity to pay and it did not cause any difficulty in parting away such a petty amount. Shri Singhal has cited Assistant Collector, Chandan Nagar v. Dunlop India Limited, AIR 1985 SC 330 , in which the Apex Court deprecated the tendency to grant interim order for mere asking. It also deprecated the practice of granting interim order practically giving principal relief sought in the petition for the mere reason that prima facie (case) has been made out. It also deprecated the practice of granting interim order practically giving principal relief sought in the petition for the mere reason that prima facie (case) has been made out. He also relied on the Municipal Board, Bundi v. M/s. RICO Agroils Limited, 1995 0 DNJ 286, in which this Court held that where public revenue is involved, Court should not be liberal inasmuch as non-recovery of such revenue may paralyse the working of the Department. It was observed that such recovery may be deposited in a separate account. These observations were made while disposing of the matter under Order 39, Rules 1 and 2, C. P. C. ( 5 ) LEARNED counsel for the non-petitioners has supported the order of the learned appellate Court on the ground that the report of the Vigilance Staff who checked the meter of the plaintiff was not absolutely reliable and in order to boost the revenue of the R. S. E. B. , who is in total financial mess, such reports were manipulated to fasten unreasonable liability on the apparent ground that the consumer was guilty of drawing power more than sanctioned to him. The appellate Court realised this aspect of the matter and has been persuaded to give judicial relief to the plaintiff-non-petitioner by allowing the application. Learned counsel has cited the following cases in support of his contention that for making a proper inspection, the consumer should also be associated and such disputes must be settled departmentally. He referred M/s. Shri Krishna Rajendra Mills Limited v. Chairman, Karnataka State Electricity Board, Bangalore, AIR 1991 Kar 345 , Bansanti Bai v. M. P. State Electricity Board, Indore, AIR 1985 Madh Pra 70 and M/s. Orissa Fiber, Cuttack v. Orissa State Electricity Board, AIR 1973 Orissa 104. ( 6 ) SHRI Rajvanshy also cited Smt. Vimla Devi v. Jangbahadur, 1977 Raj LW 326 : ( AIR 1977 Raj 196 ) in which this Court laid down the principles governing the appellate Courts discretion in interfering with the order of the trial Court. ( 7 ) I have considered the rival contentions. It may be stated that the granting of temporary injunction under the powers conferred by Order 39, Rules 1 and 2, C. P. C. is a matter of discretion. ( 7 ) I have considered the rival contentions. It may be stated that the granting of temporary injunction under the powers conferred by Order 39, Rules 1 and 2, C. P. C. is a matter of discretion. In issuing temporary injunction, the tests to be applied are : " (i) whether the plaintiff has a prima facie case, (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for temporary injunction is disallowed. " In the instant case, I am deciding these petitions with respect to the element which the plaintiff must prove for obtaining a temporary injunction namely, whether any irreparable injury would be suffered by the plaintiff in case the issue of the temporary injunction is withheld. Where it could not be said that refusal of injunction would result in irreparable injury to the petitioner, that compensation in money would not afford him adequate relief or that there exists no standard for ascertaining the actual damage likely to be caused in the instant case to the plaintiff, if the injunction is refused, refusal of injunction is proper. In the instant case also, the irreparable injury alleged by plaintiff is the compulsion of the plaintiff to pay the demand raised by the defendant on the basis of the report of the Vigilance Unit who checked the meter of the plaintiff. I have gone through the amount of demand and feel that the plaintiff cannot be said to suffer any irreparable injury or even much inconvenience if he is asked to deposit the amount under protest. Disconnection can only happen when the plaintiff failed to deposit the amount raised in the demand notice. I am inclined to agree with the view expressed by this Court in Municipal Board, Bundi v. M/s. RICO Agroils Limited (1995 0 DNJ 286) (supra) that if the temporary injunction is issued in such cases, the revenue of the Department will be greatly hit causing severe damage to the existence of such Department. I am fully satisfied that the proper order in such cases would have been to order the plaintiff to deposit the amount as per demand notice issued by the defendant under protest and on depositing the above amount, the R. S. E. B. may be restrained from disconnecting the connection. I am fully satisfied that the proper order in such cases would have been to order the plaintiff to deposit the amount as per demand notice issued by the defendant under protest and on depositing the above amount, the R. S. E. B. may be restrained from disconnecting the connection. The dispute regarding the amount of the demand notice can then be settled in the suit. The case law cited by Shri Rajvanshy are not relevant to the present dispute inasmuch as not a single case relates to Order 39, Rules 1 and 2, C. P. C. ( 8 ) FOR the above reasons, I allow the revision petitions, set aside the order of the learned appellate Court and restore that of the learned trial Court but amend the same to the effect that the non-petitioners shall deposit the above amount under protest in the trial Court within a period of one month from today and on their depositing the same the petitioner will not disconnect the connection of the plaintiff. In case the plaintiff succeeds, the amount deposited by him will be refunded to him with simple interest @ 12% per annum. Petitions allowed.