Judgment :- 1. This second appeal is directed against the order of remand dated 26.09.2001 and made in A.S. No. 61 of 2000, on the file of the learned II Additional Subordinate Court, Villupuram, reversing the Judgment and Decree dated 14.07.2000 and made in O.S. No. 266 of 1998, on the file of the learned Additional District Munsif Court, Villupuram. 2. The facts, which giving rise to the memorandum of second appeal are detailed as under: For easy reference, the appellants herein may hereinafter be referred to as the defendants and the respondent herein be referred to as the plaintiff hereinafter wherever it occurs. 3. The plaintiff is a chartered accountant and as such he has been pursuing his profession in the premises bearing No.14, Thiyagarajar Street, Villupuram. He is having electricity service connection in S.C. No. 417 in the above premises and that he regular in payment of electricity charges without any default. 4. The second defendant Assistant Executive Engineer, Town Distribution, Tamil Nadu Electricity Board had issued a memorandum to the plaintiff under Ex.A1 dated 03.03.1998 stating that the premises for which electricity connection is provided has been used as Auditor’s office and in as much as no portion is used as residential premises and hence there is violation of electricity rule and that the violation should be stopped within seven days. 5. It is also stated in Ex.A1 memorandum that if the alleged violation is not stopped within the stipulated period of seven days, after the receipt of the show cause notice, the electricity supply would be disconnected. On receipt of the memorandum under Ex.A1, the plaintiff had suitable replied under Ex.A2 dated 18.03.1998 stating that he had been working as an auditor and his nature of job should not be construed as an employee in an industry and the tariff therefore cannot be converted to one of the commercial basis. 6. On receipt of Ex.A2 by the second defendant, the first defendant had issued a demand notice under Ex.A3, demanding the plaintiff to pay a sum of Rs. 7,474/- in five equal installments at Rs.1,498/- per installment commencing from 12.05.1998. 6. On receipt of Ex.A2 by the second defendant, the first defendant had issued a demand notice under Ex.A3, demanding the plaintiff to pay a sum of Rs. 7,474/- in five equal installments at Rs.1,498/- per installment commencing from 12.05.1998. The job of the plaintiff is neither a business nor a commercial venture, but it is a learned profession and as such when he does not come under the ambit of the industry no tariff could be levied on the commercial basis, though the premises has been used for profession as the plaintiff is the chartered accountant and auditor. 7. It is the fundamental rule that the administrative instructions and guidelines cannot be overridden the statutory provisions. The defendants have no right to change the domestic tariff under the commercial one in respect of service connection in S.C.No.417. Hence, the plaintiff had filed the suit for the relief of declaration to declare that the demand notice issued under Ex.A3 is illegal, arbitrary, void ab-initio and non-est in the eyes of law. 8. The defendants have contended that when the Assistant Executive Engineer, Anti-power Theft Squad, Villupuram had inspected the plaintiff’s premises on 13.02.1998, he had found that the entire premises was used for auditor’s office and no portion was used for domestic purpose. 9. Hence, the second defendant had issued a show-cause notice to the plaintiff on 03.03.1998 to remove the violation. Again, the second defendant had issued an assessment notice to the plaintiff on 24.04.1998 under Ex.A3, requesting the plaintiff to pay a penal levy of Rs.7,474/- in five installments. 10. The plaintiff, after making the first installment of Rs.1,498/- on 12.05.1998, had filed the suit before the vacation Court, Villupuram and obtained an order of injunction not to disconnect the service connection. As the profession of the plaintiff is a business on commercial purpose, the allegation that the premises is not an industry is meaningless. Since the plaintiff has committed an offence of mal-practice as against the rules of Tamil Nadu Electricity Board, the plaintiff is liable to pay the penal charges as assessed in the notice. 11. On the basis of the pleadings of the parties of the suit, the trial Court has formulated three issues and an additional issue in respect of the jurisdiction of the trial Court. 11. On the basis of the pleadings of the parties of the suit, the trial Court has formulated three issues and an additional issue in respect of the jurisdiction of the trial Court. The additional issue pertaining to the jurisdiction of Civil Court to entertain the suit was taken up as preliminary issue. 12. It was contended on behalf of the defendants that since the suit is relating to the theft of energy, the jurisdiction of the Civil Court ceases to exist and hence the suit is not maintainable before the trial Court. It was argued that it is true that ordinarily the Civil Court has got jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. It was also contended that 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 and the instructions issued by the Board in that behalf from time to time as stated above. 13. In support of his argument, the learned counsel for the defendants before the trial Court had placed reliance upon the following decisions” i. Punjab State Electricity Board and Another Vs. Ashwani Kumar, reported in (1997) 5 SCC 120 ii. Tamil Nadu Electricity Board V. Shanmuga Engineering College and Shanmuga Polytechnic, reported in 1999 (3) MLJ 566 = 1999-3 – L. W. 784. 4. On appreciation of the evidences on record and on taking into consideration of the decision cited on behalf of the defendants, the trial Judge had concluded that the Civil Court did not have jurisdiction to entertain the suit as there is statutory bar. In respect of remaining issues on the entitlement of the plaintiff to have the relief of declaration and permanent injunction, the trial Court had also concluded that the plaintiff is not entitled to the reliefs sought, ultimately dismissed the suit on 14.07.200. 15. Challenging the said Judgment and Decree dated 14.07.2000, the plaintiff had preferred the appeal in A.S.No. 61 of 2000, on the file of the learned II Additional Subordinate Judge, Villupuram. 16. During the pendency of the appeal, the plaintiff had taken out an application in I.A.No. 110 of 2001 to amend the prayer portion of the plaint. 15. Challenging the said Judgment and Decree dated 14.07.2000, the plaintiff had preferred the appeal in A.S.No. 61 of 2000, on the file of the learned II Additional Subordinate Judge, Villupuram. 16. During the pendency of the appeal, the plaintiff had taken out an application in I.A.No. 110 of 2001 to amend the prayer portion of the plaint. That application was allowed on 23.04.2001 and accordingly the prayer portion was amended as detailed below: ”vi. The plaintiff therefore prays that the Honorable Court may be pleased to declare that the demand notice issued by the defendants as per letter No. ¦º.¦À¡.¾¢.Å¢õ.«ö.þ.³ Á¢ ýÅ¢¾¢ Á£Èø Á£.¾£.À.±ñ / 475/4/90 that the defendants have no right to change the tariff from that of domestic to one of commercial for S.C.No. 470/TFIA in the premises bearing Door No.14, Thyagarajar Street, Villupuram. a. direct the defendants to pay cost and b. grant such other relief as the Honorable Court may deem fit in the circumstances of the case.” 17. It is pertinent to note here that the prayer portion in respect of permanent injunction as originally prayed for in the original plaint was deleted by way of amendment. 18. The learned counsel for the plaintiff has contended before the first appellate Court that the suit as per the amended plaint for relief of declaration was very well maintainable before the Civil Court and in support of his contention the learned counsel for the plaintiff before the first appellate Court had placed reliance upon the decision reported in Tamil Nadu Electricity Board V.Shanmuga Engineering College and Shanga Polytechnic, reported in 1999(3) MLJ 566 = 1999–3-L.W. 784. 19. On considering the submissions made on both sides, the first appellate Court had included that since it was decided by the trial Court that the Civil Court was not having jurisdiction to entertain the suit relating to electricity theft it would be better to set aside the Judgment and Decree of the trial Court and to remit back the suit for fresh disposal, on the basis of the amended plaint to decide as to whether the plaintiff is entitled to the relief of declaration as per the amended prayer portion. Accordingly, the appeal was allowed, the Judgment and decree of the trial Court dated 14.07.2000 and made in O.S. No.266 of 1998 was set aside and the suit was remitted back to the trial Court for fresh disposal. 20. Accordingly, the appeal was allowed, the Judgment and decree of the trial Court dated 14.07.2000 and made in O.S. No.266 of 1998 was set aside and the suit was remitted back to the trial Court for fresh disposal. 20. Challenging the order of remand, the defendants have approached this Court by way of this second appeal. It is pertinent to note here that this second appeal has been admitted on the following substantial questions of law: “1. Whether the lower appellate Court is correct in setting aside the well considered judgment over looking the judgment of the Honorable Supreme Court reported in 1997(5) SCC 120 ? 2. Whether the Courts below are correct in considering the fact that the suit has been filed without exhausting the appeal remedy available in the terms and conditions of supply, which is statutory in character as per the rulings of the Honorable Supreme Court reported in 1998 (4) SCC 470 ?” 21. It is also important to note here that besides the above mentioned substantial questions of law one more substantial question of law is also arisen as to “whether the second appeal is maintainable as the order of remand dated 26.09.2001 made in A.S.No.61 of 2000, on the file of the learned II Additional Sub-Court, Villupuram is interlocutory in nature?” Before we go into the merits of the case, it has become necessary for this Court to decide the question relating to the maintainability of this second appeal. 22. Order XLIII Rule 1 of the code of Civil Procedure deals with as follows: R.1 Appeals from orders.--- An appeal shall lie from the following orders under the provisions of section 104, namely ……………(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court. Order XLI Rule 23 reads as follows: R.23. Remand of case by Appellate Court. Order XLI Rule 23 reads as follows: R.23. Remand of case by Appellate Court. _ Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of Civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 23(A) reads as follows: R.23(A). Remand in other cases, - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. Section 107 of the Code of Civil Procedure reads as follows: 107. Powers of Appellate Court. – (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power - (a) to determine a case finally; (b) to remand a case; (c ) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 23. On coming to the instant case on hand, the first appellate Court has set aside the decree and judgment of the trial Court and remitted the suit back to the trial Court for fresh disposal, on the question of entitlement of the plaintiff to have the declaratory relief, since the order of remand comes under the ambit of sub-clause “U” to Rule I of Order XLIII. It is deemed to be an interlocutory nature and hence the second appeal will not be maintainable. 24. It is deemed to be an interlocutory nature and hence the second appeal will not be maintainable. 24. In support of his contention, the learned counsel for the plaintiff has placed reliance upon the decision in Mangal Prasad Tamoli V. Narvedshwar Mishra, reported in AIR 2005 SC 1964 . In this case, a suit was filed for redemption of mortgaged property, which was dismissed by the trial Court on the ground that it was premature as it was filed before the expiry of term of mortgage. Challenging the judgment of the trial Court, an appeal was preferred before the High Court. The High Court allowed the appeal taking view that since the plaintiff has stated that he would not seek delivery of possession before stipulated time, he could be heard on merits and in consequent thereof the mater was remitted back. 25. Challenging the order of remand, an appeal was preferred before the Honorable Supreme Court by the appellant. After hearing both sides, a Division Bench of the Honorable Supreme Court has held that since remand order itself was bad in law, all further proceedings consequent thereto, would be non-est and liable to be set aside. It is also held, after referring the proviso to section 107 and Order XLI Rule 23 of the Code of Civil Procedure, that the order was passed in 1966 and was challenged in 1999 after final judgment and that the order of remand being interlocutory in nature, which did not terminate the proceedings, it is open to the aggrieved party to challenge it after final judgment. To take this view, the following two decisions were placed reliance. i. In Kshitish Chandra Bose v. Commissioner of Ranchi, reported in AIR 1981 SC707 : (1981) 2 SCR 764 = (1981) 94 L.W.73 S.N., ii. Satyadhyan Ghosal v. Smt. Deorajin Bebi, reported in AIR 1960 SC 941 : (1960) 3 SCR 590 , 26. In Kshitish Chandra Bose v. Commissioner of Ranchi, reported in (1981) 2 SCR 764 = (1981) 94 L.W. 73 S.N., it was held that an order of remand by the High Court being an interloculotory judgment, which did not terminate the proceedings, it is open to the aggrieved party to challenge it after the final judgment. In Kshitish Chandra Bose v. Commissioner of Ranchi, reported in (1981) 2 SCR 764 = (1981) 94 L.W. 73 S.N., it was held that an order of remand by the High Court being an interloculotory judgment, which did not terminate the proceedings, it is open to the aggrieved party to challenge it after the final judgment. In Satyadhyan Ghosal V. Smt. Deorajin Behi, reported in (1960) 3 SCR 590 , the same ratio has been laid down that an order of remand was an interlocutory judgment, which did not terminate the proceedings and hence could be challenged in an appeal from the final order. 27. On coming to the instant case on hand, admittedly, after allowing of first appeal and setting aside the judgment and decree of the trial court, the suit was remitted back to the trial Court for disposing of the same afresh. Hence, the amplitude of Order XLIII Rule 1 (u) could be extended in this case also and therefore the second appeal is not statutorily maintainable. 28. On the otherhand, the learned counsel for the defendants while advancing his argument has contended that the Civil Court has ousted its jurisdiction as contemplated under Section 9 of the Code of Civil Procedure as the suit relating to theft of energy, has been specifically barred under the Electricity Act 2003 and Electricity (Supply) Act 1948 and also under instructions issued by the Board. In support of his argument, he has placed reliance upon the following two decisions: i. Punjab State Electricity Board and Another Vs. Ashwani Kumar, reported in (1997) 5 SCC 120 . ii. Hyderabad Vanaspathi Ltd., Vs. A.P.State Electricity Board and Others, reported in (1998) 4 SCC 470 , 29. In Punjab State Electricity Board and Another Vs. Ashwani Jumar, reported in (1997) 5 SCC 120 , a suit was filed by the respondents seeking permanent injunction restraining the board from collecting and recovering the amount demanded, without first availing the remedy provided under Electricity Act and Electricity (Supply) Act and the instructions issued by the Board. Under this circumstance, the Apex Court had held that ordinarily civil court has jurisdiction to go into disputed questions of civil nature where fundamental fairness of procedure is violated, but where fundamental of procedure followed, cognizance of civil cause is excluded by necessary implication, and the suit therefore cannot be entertained by the civil Court. 30. Under this circumstance, the Apex Court had held that ordinarily civil court has jurisdiction to go into disputed questions of civil nature where fundamental fairness of procedure is violated, but where fundamental of procedure followed, cognizance of civil cause is excluded by necessary implication, and the suit therefore cannot be entertained by the civil Court. 30. It may also be relevant to refer Section 145 of Electricity Act, 2003 (36 of 2003), Section 145 reads as follows: “145. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” With regard to the notes on Clauses, it has also been stated that this clause provides that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in clause 126 and the Adjudicating Officer appointed under the proposed legislation is empowered to determine and no injunction shall be granted by any Court or authority in respect of any action taken in pursuance of any power under this Act. 31. It is also important to have reference of Section 9 of the Code of Civil Procedure. Section 9 reads as follows: Section 9 : Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 32. In this connection, the learned counsel for the plaintiff has submitted that since it has been contemplated under Section 145 that no Civil Court shall have jurisdiction to entertain any suit, the prayer was suitably amended in the plaint and that there is no bar in maintaining the suit before the Civil Court. 33. 32. In this connection, the learned counsel for the plaintiff has submitted that since it has been contemplated under Section 145 that no Civil Court shall have jurisdiction to entertain any suit, the prayer was suitably amended in the plaint and that there is no bar in maintaining the suit before the Civil Court. 33. As, it has been observed supra that the second appeal is not maintainable as against the order of remand, this Court is of the view that the appeal is liable to be dismissed. Further, it is open for the plaintiff to put forth his case and get appropriate remedy from the trial Court as the order of remand is an interlocutory judgment, which has not brought the proceedings to an end and the trial Court is directed to dispose the main suit in O.S. No. 266 of 1998, within a stipulated period of two months from the date of receipt of a copy of this order, without getting influenced on the observations made in this judgment. 34. In the result, this second appeal is dismissed. No costs.