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2008 DIGILAW 1091 (CAL)

C. E. S. C. Ltd v. Sk. Salauddin

2008-12-23

PARTHA SAKHA DATTA

body2008
JUDGMENT:- (1). The order dated 8th July, 2008 passed by the learned Additional District Judge, 4th Court, Alipore under Misc. Appeal No.278/06 arising out Title Suit No. 96/02 which has been subsequently renumbered as Title Suit No. 20/05 now pending before the learned Civil Judge, Junior Division, 1st Court, Alipore is under challenge. (2). The facts are these: The opposite party/plaintiff instituted the aforementioned Title Suit on 11th March, 2002 against the present petitioner, C.E.S.C. Ltd. praying for a declaration that the electricity consumption bill for the month of February 2002 to the tune of Rs.2,0972/- was illegal, inflated, inaccurate and arbitrary against which no payment could be really called for and for the consequential relief in the form of injunction to restrain the defendant/petitioner from disconnecting the electricity supply at the premises No. 5/B Sapgachi Lane, Kolkata - 39. (3). An application was taken out by the plaintiff/opposite party praying for temporary injunction to restrain the C.E.S.C. from disconnecting the electricity supply. The learned trial Court granted injunction so as to restrain the C.E.S.C. from disconnecting tha electricity supply on condition of the plaintiff/opposite party depositing in the trial Court within 31st July, 2002 a sum of Rs.10,000/-and further depositing in every month with the Court itself current electricity charges up to the tune of Rs. 5000/- per month. This order was passed on 20th July, 2002. (4). The order of the learned trial Court was challenged in appeal and the learned Civil Judge, Senior Division, 10th Court, Alipore while confirming the order of the learned trial Court modified the same to the extent that the deposit of monthly consumption charge was to be directly payable with the C.E.S.C. The appellate order is dated 29th July, 2004. This appellate order made it clear that this order of injunction to restrain the C.E.S.C. from disconnecting the supply of electricity from the suit meter is confined to the cause of action as has been alleged in the plaint. It is significant to remember here that the cause of action for the suit is the alleged inflated amount of consumption bill for the month of February, 2002. (5). It is significant to remember here that the cause of action for the suit is the alleged inflated amount of consumption bill for the month of February, 2002. (5). Then in the early part of the month of November, 2004 the C.E.S.C. admittedly disconnected the electricity supply and consequent upon such disconnection the plaintiff/opposite party took out an application under Section 151 C.P.C. praying for restoration of the electricity supply alleging therein that despite the trial Court and appellate Courts order dated 20th July, 2002 and 29th July, 2002 the C.E.S.C. disconnected the electricity supply in his absence without any just cause on 4.11.2004. (6). Meanwhile, the order of the learned Lower Appellate Court was challenged in the revision before this Court in C.O. No. 60/05 and this Court did not interfere with the order of the learned appellate Court on the ground that the order was passed on the concession of the learned Advocate for the petitioner in the Court below. This revisional application was disposed of on 4th April, 2005. (7). However, on the application of the plaintiff/opposite party under Section 151 C.P.C. dated 20th May, 2005 the learned trial Court passed an order on 22nd March, 2006 directing restoration of the electricity supply. (8). It was the contention before the learned trial Court by the C.E.S.C. that the disconnection was effected as it was discovered that the consumer/ plaintiff had tampered with the meter so as to abstract unjust electrical energy through a ghost meter by pilferage causing loss to the C.E.S.C. to the tune of Rs. 8,29,594/-. It was alleged by way of written objection against the application under Section 151 C.P.C. that the Assessing Officer-l in terms of Section 126 of the Electricity Act assessed the unauthorized use of electricity to the tune of Rs. 8,29,594/-and dispatched a copy of the assessment order together with the calculation sheet to the plaintiff/ opposite party on 4th November, 2004 per registered post with AD as also through courier and the opposite party received the notice on 10th November, 2004 but did not turn up before the Assessing Officer. 8,29,594/-and dispatched a copy of the assessment order together with the calculation sheet to the plaintiff/ opposite party on 4th November, 2004 per registered post with AD as also through courier and the opposite party received the notice on 10th November, 2004 but did not turn up before the Assessing Officer. Then the senior Executive Officer of the C.E.S.C. by a letter dated 16th November, 2004 intimated the plaintiff that in order to subserve the principles of natural justice the opportunity was given to the plaintiff for hearing and the notice was received by the plaintiff again on 19th November, 2004 but the plaintiff did not file any written objection nor did he appear. Then a final order of assessment was passed on 23rd November, 2004.The final bill was sent to the consumer but no payment was made. It was further agitated before the learned trial Court in connection with the hearing of the 151 C.P.C. application that no order of restoration of supply can be passed by the Civil Court which has no jurisdiction to entertain the suit or proceeding in respect of any matter which an Assessing Officer as referred to in Section 126 on an appellate authority as referred to in Section 127 or the Adjudicating Officer is empowered to determine and as such no injunction order for restoration of supply is sustainable. (9). This plea did not find favour with the learned trial Court and as observed above the learned trial Court by the order dated 22nd March, 2006 directed the C.E.S.C. to restore the electricity supply on the ground that the said trial Court passed an prohibitory order of injunction against disconnection of supply on 20th July, 2002 and the appellate Court confirmed the order on 29th July, 2004. (10). This order of the learned trial Court directing restoration of the electricity supply was challenged before this High Court in F.M.A.T. No. 1509/09 but the Division Bench of this Court by order dated 19th June, 2006 observed that as the First Miscellaneous Appeal was preferred against an order allowing a temporary mandatory injunction in a suit valued at Rs.50 the appeal was not maintainable before the High Court and accordingly on that ground alone the appeal was dismissed. (11). Then the order of the learned trial Court allowing temporary mandatory injunction dated 22nd March, 2006 was challenged in Misc. (11). Then the order of the learned trial Court allowing temporary mandatory injunction dated 22nd March, 2006 was challenged in Misc. Appeal No. 278/06 but the learned Additional District Judge, 4th Court, Alipore refused to entertain the appeal and dismissed the same only on the ground that an order passed under Section 151 C.P.C. is not an appealable order. (12). In the back ground of the above factual situation the question that has cropped up in this revisional application is whether the learned Additional District Judge was justified in dismissing the appeal only on the ground that the order dated March 22, 2006 passed by the learned trial Court directing restoration of electricity supply is not an appealable order. (13). Mr. S. Sanyal, learned Advocate appearing for the petitioner, submits the following:- (a) What was prayed for by the application dated May 20, 2005 under Section 151 of the Code of Civil Procedure was indeed an order for temporary mandatory injunction for the purpose of reconnection of the supply and though the application was captioned under Section 151 of the Code of Civil Procedure the learned trial Court failed to appreciate that to all intents and purposes it was an application under Order 39 Rules 1 and 2 which was filed in connection with the suit. Mr. Sanyal argues that a casual reading of the application dated May 20, 2005 would at once reveal that the remedy sought for by that application is available only through an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. Mere mention of the caption as an application under Section 151 of the Code of Civil Procedure does not and cannot take out the application from the purview of the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure. It is submitted that the learned Court of Appeal below has not gone deep into the legal question and observed that an order under Section 151 of the Code of Civil Procedure under inherent power of the Court is not open to appeal. (b) It is submitted that the learned trial Court was unjust in making uncharitable remarks to the effect that the C.E.S.C. clearly appeared to have disobeyed the learned Appellate Courts order dated July 29, 2004 whereby trial Courts prohibitory order dated July 20, 2002 was confirmed. (b) It is submitted that the learned trial Court was unjust in making uncharitable remarks to the effect that the C.E.S.C. clearly appeared to have disobeyed the learned Appellate Courts order dated July 29, 2004 whereby trial Courts prohibitory order dated July 20, 2002 was confirmed. It is submitted that the learned trial Court committed a gross illegality in observing that if any pilferage was being committed the defendant should have informed the Court because the meter as well as supply of electricity in question was subjudice and injunction continues in respect of the disputed meter. (14). To elaborate his argument, the law does not enjoin upon the C.E.S.C. that in case of pilferage information has to be given to the Court without taking recourse to the law as is provided in the Electricity Act. The learned trial Court committed a gross illegality in overlooking the fact that while affirming the order of prohibitory injunction the Appellate Court by order dated July 29, 2004 made it clear that order of injunction was only related to the cause of action that arose in the suit. It has been submitted that the cause of action in the suit is on account of alleged inflated bill for the month of February, 2002 amounting to Rs. 20,972.00. It has been submitted by Mr. Sanyal that the Courts order was never violated. Disconnection of supply was on account of detection of pilferage for a prolonged period of time which was discovered in early part of November, 2004 and the law enables the authority to disconnect the electricity supply in the case of unauthorized consumption of electrical energy and the trial Court did not look into at all the averments in the petition of objection that was filed in connection with the plaintiffs application under Section 151 of the Code of Civil Procedure. (15). Mr. Sanyal in support of his submission that the order is appealable has taken me to the decision in Ravi Maharia v. Reliance Petroleum Limited and Ors., reported in 2000 (1) CHN Page 439. Another decision in Jamuna Chakraborty v. Sital Chakraborty and Ors., reported in 2007 (3) CHN Page 166 has also been cited. (16). Mr. (15). Mr. Sanyal in support of his submission that the order is appealable has taken me to the decision in Ravi Maharia v. Reliance Petroleum Limited and Ors., reported in 2000 (1) CHN Page 439. Another decision in Jamuna Chakraborty v. Sital Chakraborty and Ors., reported in 2007 (3) CHN Page 166 has also been cited. (16). Mr. Jiban Ratan Chatterjee, learned Senior Advocate appearing for the plaintiff/opposite party, submits in reply that whether the learned trial Courts order dated March 22, 2006 directing restoration of the supply is a correct order or not cannot be the subject-matter of discussion in this revisional application because of the fact that this Court is only to examine the legality and propriety of the order dated July 8, 2008 whereby the learned Judge in the Court below opined that the order was not open to appeal. Mr. Chatterjee supported the order of the learned Judge stating that the application for restoration of electricity supply was made under Section 151 of the Code of Civil Procedure and by virtue of the inherent power of the Court an order was passed and this being the position the order which was impugned before the learned Lower Appellate Court was a revisable order and this is more so, when it appears that the manner in which the order was passed it would reveal that the Court exercised its inherent jurisdiction to make such order. Mr. Chatterjee in support of his submission takes me to the decision in Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, reported in AIR 1962 Supreme Court Page 527. Mr. Chatterjee further referred to the following decisions:-(i) AIR 2004 SC 2093 (Shipping Corporation of India Ltd. v. Machado Brothers and Ors.), (ii) AIR 1970 SC 1468 (Khushro S. Gandhi and Ors. v. N. A. Guzder (dead) by his Legal Representatives and Ors.), (iii) 82 CWN Page 44 (Dibakar Naskar and Ors. v. Rotary Village Co-operative Multipurpose Society Ltd. and Ors.), (iv) AIR 2001 SC 2542 (Nawal Kishore Tulara v. Dinesh Chand Gupta and Ors.). (17). It is argued by Mr. Chatterjee that the Court can exercise its inherent power under Section 151 of the Code of Civil Procedure to pass a temporary mandatory injunction notwithstanding the fact that regular statutory provision containing in Order 39 Rules 1 and 2 of the Code of Civil Procedure can be resorted to by a party. (17). It is argued by Mr. Chatterjee that the Court can exercise its inherent power under Section 151 of the Code of Civil Procedure to pass a temporary mandatory injunction notwithstanding the fact that regular statutory provision containing in Order 39 Rules 1 and 2 of the Code of Civil Procedure can be resorted to by a party. It is submitted by Mr. Chatterjee that Mr. Sanyal was not justified in making the submission that the disconnection of supply which was effected in the early part of November, 2004 was on account of alleged pilferage or alleged unauthorised consumption of electrical energy because the application for restoration of the supply was made in connection with the suit and in the suit wherein permanent injunction was sought for to restrain the C.E.S.C. from disconnecting the electricity supply the plaintiff prayed for temporary prohibitory injunction. Mr. Chatterjee submitted that notwithstanding what is contained in Sections 126 and 127 of the Electricity Act, 2003 the authority was not obligated upon to make an order of disconnection when the suit was pending before the trial Court. (18). As I find from the plaint of the suit it was a suit for permanent prohibitory injunction to restrain the C.E.S.C. from disconnecting the electricity supply. The cause of action of the suit allegedly arose on March 4, 2002 when allegedly the defendant threatened with the disconnection for non-payment of the inflated amount of bill for the month of February, 2002. As it appears from the written objection of the C.E.S.C. filed against the plaintiffs petition under Section 151 C.P.C. that disconnection of the electricity supply was made on account of a different cause which is that in the early part of November, 2004. The C.E.S.C. detected abstraction of electrical energy unauthorisedly by pilferage through a ghost meter and a sum of Rs.8.00 lac and odd was estimated to be the revenue loss of the authority. A notice was served upon the consumer for hearing. Consumer did not participate in the hearing. Final assessment order was passed. Payment was not made and instead of making payment in compliance with the order passed under Section 126 of the Electricity Act on November 23, 2004 the petitioner/plaintiff preferred the application under Section 151 of the Code of Civil Procedure on May 20, 2005. (19). Consumer did not participate in the hearing. Final assessment order was passed. Payment was not made and instead of making payment in compliance with the order passed under Section 126 of the Electricity Act on November 23, 2004 the petitioner/plaintiff preferred the application under Section 151 of the Code of Civil Procedure on May 20, 2005. (19). The question now is whether the order impugned before the learned Lower Appellate Court is revisable order or appellable order. Having given a look at the application udder Section 151 of the Code of Civil Procedure it clearly appears that it was in fact an application for temporary mandatory injunction. The prayer column of the application very expressly is that "temporary mandatory injunction" may be ordered directing the opposite parties to restore the connection of the supply of electricity at the premises. I am in agreement with Mr. Sanyal when he submits that the nomenclature of the application used by the learned Advocate for the opposite party in the trial Court is not at all decisive. It is the content of the application, the substance of the application, the spirit of the application, the tenor of the application that have to be taken into consideration in order to appreciate as to whether any order by virtue of exercise of inherent jurisdiction of the Court was prayed for. It is well known that inherent jurisdiction of the Court is not extraneous to the Court but it inheres in the Court so as to do justice to the parties. It is not in dispute by the learned Counsel for the parties that in circumstances the Court may pass injunction by virtue of the power under Section 151 of the Code of Civil Procedure but when there is a specific provision in the statute that enables a party to seek for a temporary mandatory injunction and when in fact in clear language what was prayed for by filing the application was an order for temporary mandatory injunction, it must be held that to all intents and purposes it was an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and mere use of the caption of Section 151 of the Code of Civil Procedure will not be at all decisive. In this connection, I am prompted to refer to the decision in Ravi Maharia (supra) where the exact situation was dealt with by this Court. It was held that although the second application was one under Section 151 of the Code of Civil Procedure, the prayer made therein clearly came within the purview of Order 39 Rules 1 and 2 of the Code and fresh prayer for the petitioner of injunction was turned down. It was observed by this Court that a rejection of such application squarely comes under the purview of Order 43 Rule I (r) of the Code of Civil Procedure and was appellable. It was observed that if an litigant instead of correctly describing an application as one under Order 39 Rules 1 and 2 of the Code of Civil Procedure captions the same as one under Section 151 of the Code of Civil Procedure (as is the case here) any order passed on such application on merit will be appealable. It was further observed that the litigants cannot be allowed to bypass the provisions of the Code by wrongly describing an application as one under Section 151 of the Code of Civil Procedure though it really comes within the purview of Order 39 Rules 1 and 2 resulting in deprivation of the right of appeal of a litigant. (20). The decision in Manoharlal Chopra (supra) as has been referred to by the learned Advocate for the opposite party is really an exposition of law. It was observed that if the provision of Section 94 of the Code of Civil Procedure were not there in the Code, the Court could still issue temporary injunction but it could do that in the exercise of its inherent jurisdiction. It was observed that when the Code itself recognizes the existence of the inherent power of the Court there is no question of implying any power outside limits of the Court. This decision does in no way help the opposite party. At Paragraph-7 of the judgment of Their Lordships made it clear that inherent powers are to be exercised by the Court in very exceptional circumstances for which the Court lays down no procedure. In the instant case prayer for mandatory temporary injunction was made and the same was allowed. This decision does in no way help the opposite party. At Paragraph-7 of the judgment of Their Lordships made it clear that inherent powers are to be exercised by the Court in very exceptional circumstances for which the Court lays down no procedure. In the instant case prayer for mandatory temporary injunction was made and the same was allowed. It was an injunction application under Order 39 Rules 1 and 2 C.P.C. The application was there for the Court to pass an order. But the order itself does not show that the Court itself exercises its inherent power in making such order. There was no necessity for the Court to exercised inherent power as in normal circumstances applications under Section 39 Rules 1 and 2 C.P.C. could be filed. Had it been revealed from the order of the learned trial Court that the learned trial Court exercised its inherent power to make such order that the position could have been otherwise. In such circumstances, I am of the opinion that the order impugned before the learned Appeal Court was an appealable order under Order 43 Rule 1(r) of the Code of Civil Procedure. (21). Accordingly, the application is allowed. The order dated July 8, 2008 passed by the learned Additional District Judge, 4th Court, Alipore in Misc. Appeal No. 278 of 2006 is set aside. The learned Additional District Judge, 4th Court, Alipore will now hear the appeal and decide it in accordance with law. (22). Copy of this judgment shall be sent to the learned Additional District Judge, 4th Court, Alipore for information and necessary action. Urgent xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.