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2016 DIGILAW 988 (GAU)

Simanta Joyti Baruah v. Chairman, Aseb

2016-11-08

SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. Heard Mr. B. Banerjee, learned Senior Counsel appearing on behalf of the appellant. None appears for the respondent though names of the learned counsel have been duly shown in the Cause-List. 2. This second appeal has been preferred against the judgment and order dated 31.03.2004 passed by the Curt of Civil Judge (Senior Division), Nalbari, in Title Appeal No.3 of 2002 reversing the decree dated 25.06.2002 passed by the learned Civil Judge (Junior Division) No.1, Nalbari, in Title Suit No.49 of 1998. 3. By order dated 27.04.2005, this Court had admitted the Second Appeal after framing the following substantial question of law: "Whether the learned Court below erred in allowing the appeal on the ground of non-joinder of Smt. Bimala Dutta, the land-lady, when the issue pertained to interpretation of the Terms and Conditions of 1988 framed by the Board?" 4. The brief factual matrix of the case is that the plaintiff was running a Motor Garage as proprietor of "M/S Baruah Auto Engineering" from the tenanted premises in respect of which one Smt. Bimala Dutta was the land-lady. The plaintiff's claim is that the aforesaid garage is registered as a Small Scale Industrial Unit and therefore, the plaintiff was entitled to concession in payment of electricity bill as applicable to such Small Scale Industrial Units. The said request of the plaintiff was, however, turned down by the respondents (ASEB) on the grounds that the plaintiff did not have a valid certificate of registration as a Small Scale Industrial Unit. Although the plaintiff had later on obtained a registration certificate and informed the said fact to the defendants, yet, the defendants did not convert the power connection into one applicable for industrial units and continued to bill the plaintiff on commercial units as a result of which a substantial arrear had accrued on account of unpaid electricity bill which could not be paid by the plaintiff. Consequently, a notice of disconnection of power supply was served upon the land-lady Smt. Bimala Dutta in respect of the tenanted premises occupied by the plaintiff. The defendants had issued a bill with a notice of disconnection of the power supply to the plaintiff's industrial unit, demanding an amount of Rs.74,494.87/- as units charged at the commercial rate. Consequently, a notice of disconnection of power supply was served upon the land-lady Smt. Bimala Dutta in respect of the tenanted premises occupied by the plaintiff. The defendants had issued a bill with a notice of disconnection of the power supply to the plaintiff's industrial unit, demanding an amount of Rs.74,494.87/- as units charged at the commercial rate. Being aggrieved by such action on the part of the ASEB, the plaintiff had filed Title Suit No. 49 of 1998 before the Court of Civil Judge, (Junior Division) No.1, Nalbari, for following reliefs: "It is, therefore, prayed- (a) That a decree be passed declaring that M/S Baruah 'Auto Engineering' at Barma Road, Nalbari is a registered Industrial Unit and power load was sanctioned, as an Industrial Unit and hence, the charging of Commercial rate of consumption charge is illegal, improper and not binding upon the plaintiff. (b) That the disconnection notices issued by the Defendant No.3 are illegal. (c) That order be passed directing the defendant No.3 to rectify the metre reading since its installation and excess Unit shown in the metre due to the fault of the line be deduced and revised bills be prepared at Industrial rate of Unit consumption charge. (d) The plaintiff be allowed to pay the arrear bill at an Industrial rate on monthly instalments of Rs.100.00. (e) Any other relief/reliefs to which the plaintiff is entitled be also granted." 5. The defendants had contested the suit filed by the plaintiff by filling written statement, inter alia, questioning the maintainability of the suit on the ground of non-joinder of the land-lady, viz, Smt. Bimala Dutta. 6. On the basis of the pleadings of the parties, the learned trial court had framed as many as 10 issues for trial. Issue No.4 relates to a question of non-joinder of Smt. Bimala Dutta as a necessary party to the suit. 7. During the course of trial the plaintiff adduced evidence. However, the defendants did not adduce any evidence in support of the statement made in the written statement. Taking note of the evidence on record, the learned trial court had decreed the plaintiff's suit on 25.06.2002. The judgment and decree passed by the learned trial court in Title Suit No.49 of 1998 was challenged by the defendants/respondents by filing Title Appeal No.03 of 2002 in the Court of the Civil Judge, (Senior Division), Nalbari. Taking note of the evidence on record, the learned trial court had decreed the plaintiff's suit on 25.06.2002. The judgment and decree passed by the learned trial court in Title Suit No.49 of 1998 was challenged by the defendants/respondents by filing Title Appeal No.03 of 2002 in the Court of the Civil Judge, (Senior Division), Nalbari. The prayer of the respondents was eventually allowed by the learned Lower Appellate Court by the judgment and decree dated 31.03.2004, whereby, the learned Court below had allowed the appeal by setting aside the judgments and decree dated 05.03.2002 and 25.06.2002 respectively passed by the learned Trial Court on the sole ground that the suit filed by the plaintiff was bad for non-joinder of Smt. Bimala Dutta i.e. the land-lady. Being aggrieved by the judgment and decree dated 31.03.2004, the plaintiff has filed the instant Second appeal. 8. Mr. Banerjee, learned Senior Counsel for the appellant, submits that the dispute was between the appellant and the respondent ASEB and as such, the land-lady neither had any involvement in the matter nor was any relief prayed for in the suit against the land-lady. While deciding the suit filed by the plaintiff/ appellant, the learned trial court had gone into the said aspect of the matter and discussed the issue in details under Issue No.4 so as to arrive at a conclusion that the suit was not bad for non-joinder of the land-lady. Under such circumstances, according to Mr. Benerjee, the learned lower appellate court had committed manifest illegality in reversing the decree of the trial court solely on the ground of non-joinder of the land-lady holding her to be a necessary party. 9. I have considered the submissions made by the learned counsel for the appellant and I have also perused the materials available on record. 10. From a reading of the impugned judgment it appears that the basic dispute involved in the proceeding was pertaining to the question as to whether the electricity bill raised by the respondents for consumption of the electricity by the appellant's garage was required to be charged on commercial rate or the appellant was entitled to a concessional rate and corresponding load capacity, treating the same as an industrial unit. It is no doubt true that the appellant being a tenant, any dispute pertaining to the tenanted premises would one way or other involved the land-lady. It is no doubt true that the appellant being a tenant, any dispute pertaining to the tenanted premises would one way or other involved the land-lady. However, as has been indicated above, in the present case, the dispute is between the plaintiff and the respondents, the land-lady Smt. Bimala Dutta having no role, whatsoever, to play in resolution of the same. That apart, the plaintiff had also not prayed for any relief against the land-lady. Therefore, in the facts and circumstances of the case, Bimala Dutta could at best have been held to be a proper party. Even otherwise, law is well settled that a suit cannot be dismissed on the ground of non-joinder of necessary parties unless the plaintiff had failed to implead such parties despite a specific direction is passed by the Court to such effect. In the present case, there was no direction issued by the Court asking the plaintiff to implead Smt. Bimala Dutta as a party. As a matter of fact, the issue No 4 having been answered by the trial court in favour of the plaintiff, there was no occasion for the appellant to implead Smt. Bimala Dutta as a party. 11. Order 41, Rule 31 of the Code of Civil Procedure mandates that the appellate court should record its reasons for decision, more particularly, where the decree appealed from is reversed or varied. In view of the Order 41, Rule 31 of the Code of Civil Procedure, the lower appellate court ought to have appreciated the evidence and recorded findings as regards all the issues framed by the court below before reversing the decree appealed form. The same not having been done and in view of what has been held herein above, I am of the view that the impugned judgment and decree passed by the lower appellate court is not sustainable in the eye of law and the same is accordingly set aside. The appeal is, however, remanded to the learned first appellate court for a fresh decision of all the issues by appreciating the evidence available on record. In the event, the impleadment of Smt. Bimala Dutta is deemed necessary, an opportunity would be granted to the appellant to implead such party before considering what further order is required to be passed in connection with the issues involved in the present case. 12. In the event, the impleadment of Smt. Bimala Dutta is deemed necessary, an opportunity would be granted to the appellant to implead such party before considering what further order is required to be passed in connection with the issues involved in the present case. 12. With the above observations, this appeal stands allowed to the extent indicated above. Office to send back the LCR as expeditiously as possible. The learned court below would issue notice of appearance to both the parties upon receipt of the LCR. No order as to costs.