Gujarat High Court
Zakhra Hathiya Odedara (Porbandar ... vs Paschim Gujarat Vij Company Ltd. - ... on 25 November, 2025
NEUTRAL CITATION
C/SA/300/2023 ORDER DATED: 25/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 300 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 300 of 2023
==========================================================
ZAKHRA HATHIYA ODEDARA (PORBANDAR VALA)
Versus
PASCHIM GUJARAT VIJ COMPANY LTD. - CORPORATE OFFICE,
RAJKOT
==========================================================
Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Appellant(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/11/2025
ORAL ORDER
1. The present Second Appeal has been filed, challenging the judgment and decree dated 16.03.2023, passed by the Second Addt. District Judge at Porbandar, in Regular Civil Appeal No. 36 of 2017, whereby the said appeal was allowed and the judgment and decree passed by the Trial Court in Special Civil Suit No. 24 of 2004, dated 19.10.2016, was quashed and set aside. The Appellate Court held that the plaintiff is entitled to recover an amount of Rs. 7,37,092.69/- along with 18% p.a. delay payment charges from the date of filing the suit till realization.
2. For the sake of brevity, parties are referred to as per their original status in the suit.
3. The brief facts arising out of the present Second Appeal are that the plaintiff, after checking the premises of the defendant, found that the defendant was illegally and unauthorizedly committing theft of electricity without obtaining any electric connection. Consequently, the plaintiff issued a legal notice, and as the defendant did not pay the said amount, the plaintiff filed a suit for Page 1 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined recovery of Rs. 7,37,092.69/-.
4. The defendant appeared in the said suit and filed a written statement.
5. The Trial Court framed issues vide Exh. 10 and, after considering the oral evidence of the plaintiff and the defendant and giving findings on all issues, took into consideration the fact that a criminal complaint had also been filed by the plaintiff under Section 39 of the Indian Electricity Act, 1910. As the defendant was acquitted in the said criminal complaint due to non-production of cogent evidence by the prosecution, the Trial Court dismissed the said suit.
6. The said judgment and decree was challenged by the plaintiff by filing Regular Civil Appeal No. 2 of 2018. Therein, after re- appreciating the evidence, the Appellate Court allowed the said appeal, quashed and set aside the judgment and decree passed by the Trial Court, and held that the plaintiff is entitled to the amount stated in the plaint with 24% p.a. delay payment charges from the date of filing the suit. Hence, the present Second Appeal.
7. The learned advocate for the defendant has argued that the Appellate Court has erred in not appreciating the fact that the Bill issued to the defendant was a theft Bill and not the regular Bill issued in the normal course of business to a consumer. The learned advocate for the defendant has also argued that the Appellate Court has not taken into consideration the fact that in the criminal proceedings, the plaintiff had not proved that theft had been committed by the defendant. The said fact, not having been challenged by the plaintiff, had attained finality, and therefore, the Appellate Court could not have quashed and set aside the order passed by the Trial Court.
8. The learned advocate for the defendant has further argued that the Appellate Court could not have placed reliance on the judgment passed in the case of Pravin Himatbhai Purohit Vs. Paschim Gujarat Vij Co. Ltd. in First Appeal No. 4146 of 2009, in view of Page 2 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined the fact that in the said case, the criminal court had not acquitted the person from the offence of electricity theft.
9. Therefore, it has been argued that there are substantial questions of law involved in the present Second Appeal, and the Second Appeal is required to be admitted on the following substantial questions of law:
(a) Whether the First Appellate Court has correctly and properly appreciated the evidence on record for the suit regarding recovery of the theft Bill?
(b) Whether the judgment passed by the First Appellate Court is perverse?
(c) Whether the learned First Appellate Court has disturbed the findings of the Trial Court on misconceived facts?
10. Per contra, the learned advocate for the plaintiff has argued that the Bill under dispute has not been challenged by the defendant by way of an Appeal before the Appellate Committee, and therefore, in the suit filed by the plaintiff to recover the amount under the Bill, it was not open for the defendant to challenge the legality and validity of the said Bill.
11. It was submitted that if the defendant is found indulging in any malpractice, he has to pay the fine levied by way of additional charge by the Board. If any Bill is issued, the proper remedy for the consumer is to prefer an appeal to the Appellate Authority, as provided in the condition of supply of electrical energy. As the defendant has not availed of that remedy, it was not open for the defendant to take up the same contention by way of defence in a suit filed for recovery of dues assessed in accordance with the condition of supply of electric energy. Thus, the First Appellate Court has rightly allowed the said appeal, and therefore, there are no substantial questions of law involved in the present Second Appeal, leading to the argument that the Second Appeal be dismissed.
Page 3 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined
12. Learned Advocate for the plaintiff has also argued that even the acquittal of the defendant in the criminal proceeding will not be a ground to disentitle the plaintiff to claim the amount, in view of the fact that the principle of burden of proof is different in both the cases. Therefore, it has been argued that the Second Appeal is required to be rejected.
13. Having heard the learned advocates for the parties and having considered the judgment and decree passed by the Trial Court and set aside by the First Appellate Court, the fact remains that it has come on record that the checking squad found that there was unauthorized use of electricity.
14. It has also come on record that the defendant denied to sign the Rojkaam, and the Bill for unauthorized use of power was sent to the defendant. Even the notice for the recovery of the Bill amount was sent to the defendant, which fact has been admitted by the defendant in his cross-examination. The fact remains that the defendant has neither objected to the Bill nor has produced any evidence in respect of ownership of the site where the theft has taken place, to show whether it belonged to the defendant or somebody else.
15. The fact also will have to be considered that the defendant has neither filed any objection against the Bill before the assessing officer nor filed any appeal before the competent authority. In the case of Paschim Gujarat Vij Co. Ltd. Vs. Bhikhabhai Arjanbhai Varu in Second Appeal No. 11 of 2012, this Court held at Paragraph 5.0, 5.1 as under:
"5.0- Heard the learned advocates for the respective parties at length At the outset, it is required to be noted that respondent herein-original defendant was found to have indulged in the malpractice and has committed the theft of electricity by using illegal means for which a supplementary bill of Rs.30560.66 was issued. It is required to be noted that as per the condition of Supply of Electrical Energy if the consumer is aggrieved by the supplementary bill, in that case, he is required to prefer Page 4 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined an appeal before the Appellate Authority. It is also required to be noted that as per the condition of Supply of Electrical Energy if a person/consumer is found to be indulged into malpractice, is required to pay additional charge as per the ABCD formula as per the condition of Supply of Electrical Energy. It is an admitted position that respondent herein original defendant has not challenged the supplementary bill before the Appellate Authority as provided under the condition of Supply of Electrical Energy. Therefore, as such the supplementary bill issued by the appellant-original plaintiff has attained the finality. As the respondent did not make payment of the supplementary bill, the appellant herein- original plaintiff instituted suit for recovery of amount under the aforesaid supplementary bill i.e. for recovery of Rs.30560.66 and in the said suit preferred by the appellant to recover an amount under the supplementary bill, for the first time in the said suit the respondent herein-original defendant challenged the supplementary bill. Therefore, short question which is posed for consideration of this Court is whether in a case where consumer has not challenged the supplementary bill by way of appeal before the Appellate Authority as provided under the condition of Supply of Electrical Energy and thereafter when the Board has filed the suit for recovery of the amount under the supplementary bill is it open for the consumer to challenge the supplementary bill and / or take the same contention by way of defence in the suit filed for recovery of the dues under the supplementary bill which he could have taken in an appeal before the Appellate Authority? 5.1- Identical question came to be considered by the Division Bench in the case of Vrajlal Devjibhai vs. GEB in First Appeal No.2506 of 2003 and it is held by the Division Bench that if consumer is found to have indulged in to any malpractice etc he has to pay additional charge as may be levied by the Board and if the supplementary bill is issued, the proper remedy for Page 5 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined the consumer is to prefer the appeal to the Appellate Authority as provided in the condition of Supply of Electrical Energy and if the consumer has not availed of that remedy, thereafter it is not open for him to take up same contention by way of defence in the suit filed for recovery of dues assessed in accordance with the conditions of supply. In the said decision the Division Bench considered the decisions of the Hon'ble Supreme Court in the case of Punjab State Electricity Board and Anr vs. Ashwani Kumar reported in (1997) 5 SCC 120 as well as in the case of Hyderabad Vanaspathi Ltd vs. A.P. State Electricity Board and Others reported in (1998) 4 SCC 470 and in para 5 the Division Bench has observed and held as under:
5. As held by the Supreme Court in PUNJAB STATE ELECTRICITY BOARD & ANR v. ASHWANI KUMAR [(1997) 5 SCC 120], although Civil Court had jurisdiction to go into disputed questions of civil nature, cognizance of civil cause was excluded by virtue of supplementary rules providing for disposing of the disputes expeditiously. It was held that the Civil Court was not justified in entertaining the suit and giving a declaration without directing the party to avail of the remedy provided under he Indian Electricity Act, the Indian Electricity (Supply) Act and the instructions issued by the Board in that behalf from time to time. It is also held by the Supreme Court in HYDERABAD VANASPATHI LTD. v. A.PSTATE ELECTRICITY BOARD & OTHERS [(1998) 4 SCC 470] that the Board in performance of a supplementary duty supplied energy on certain specific terms and conditions framed in exercise of a supplementary power and undoubtedly they were supplementary in character. It is also held that for ascertaining the loss and fixing the compensation, a uniform procedure has to be framed and a machinery constituted and if a consumer is found indulging in any malpractice etc., he has to pay additional charges as may be levied by the Board. Thus, the proper remedy for Page 6 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined the appellant was to prefer an appeal to the Appellate Authority as provided in the Conditions of Supply of Electrical Energy and the appellant having admittedly not availed of that remedy, it was not open for him to take up the same contentions by way of defence in the suit filed for recovery of the dues assessed in accordance with the Conditions of Supply. The trial Court has not committed any error in reaching its findings in favour of the respondent for the reasons given by it with which we fully agree".
16. Moreover, as the defendant was found to have indulged in malpractice, he is liable to pay the additional charges as levied by the Board. If a Supplementary Bill is issued, the proper remedy available to the defendant is to prefer an appeal before the Appellate Authority, as provided under the Conditions of Supply of Electrical Energy. As the defendant has not availed himself of such remedy, it is not open for him to raise the same contention by way of defence in the suit filed by the plaintiff for recovery of dues assessed in accordance with the said Conditions of Supply.
17. Therefore, as the Bill is not challenged and there is no objection taken to the supplementary Bill, it attains finality. Consequently, without challenging the said Bill, it is not open for the defendant to take the defence that he has not committed any theft of electricity.
18. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or Page 7 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025 NEUTRAL CITATION C/SA/300/2023 ORDER DATED: 25/11/2025 undefined without evidence."
19. Under the circumstances, this Second Appeal is devoid of any substantial question of law. The first appellate Court has rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The present appellant has failed to prove his case before the learned first Appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
20. In view of the same, there are no substantial questions of law involved in the present Second Appeal, and the Second Appeal is required to be dismissed and it is dismissed accordinly.
21. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.
(J. C. DOSHI,J) After pronouncement of the order, the learned advocate for the appellant has sought stay of the order in view of the fact that there was no stay granted in favour of the appellant during the pendency of the appeal.
Therefore, request made by learned advocate for the appellant is rejected.
(J. C. DOSHI,J) MANISH MISHRA Page 8 of 8 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:49:35 IST 2025