Bses Yamuna Power Ltd vs Sabir Ali
2011 Latest Caselaw 4785 Del

19
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +       RFA No.428/2010

%                          Date of decision: 26th September, 2011.


      BSES YAMUNA POWER LTD                   ..... Appellant
                   Through : Mr. Anil Bhasin, Adv.

                  versus

      SABIR ALI                                ..... Respondent
                        Through : Mr. Ashok Mahajan, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may             NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?            NO

3.      Whether the judgment should be                    NO
        reported in the Digest?

                        JUDGMENT (ORAL)

1. The appellant has challenged the judgment of the

learned Trial Court on various grounds inter alia that the Civil

Courts had no jurisdiction to entertain and try the suit and the

remedy of the respondent was to approach the Special Court

under the Electricity Act, 2003. The appellant has referred to

and relied upon the Division Bench judgment of this Court in

the case of B.L. Kantroo v. BSES Rajdhani Power Ltd.,

154 (2008) DLT 56 (DB).

2. The learned counsel for the respondent submits that this

plea was not raised by the appellant before the learned Trial

Court. The learned counsel further submits that the plea of

inherent lack of jurisdiction raised by the appellant is

misconceived and the judgment in the case of B.L. Kantroo

(Supra) referred to by the appellant is clearly distinguishable.

3. The learned counsel for the appellant submits that new

plea relating to inherent lack of jurisdiction can be raised at

any stage. The learned counsel for the appellant refers to and

relies upon the judgment of the Apex Court in the case of

Chandrika Misir v. Bhaiyalal, AIR 1973 SC 2391 where it

was held that a new plea relating to inherent lack of

jurisdiction can be raised at any stage even if it was not raised

before the learned Trial Court.

4. In the facts and circumstances of this case, this case

needs to be remanded back to the learned Trial Court for a

finding on the plea of inherent lack of jurisdiction raised by the

appellant.

5. In view of the above, the case is remanded back to the

learned Trial Court to give a finding on the plea of the

appellant relating to inherent lack of jurisdiction of the Civil

Court after hearing both the parties. It is clarified that this

Court has not examined the merits of the case and, therefore,

the parties shall be entitled to challenge the finding of the

learned Trial Court on the merits of the case after the decision

of the issue of jurisdiction. The appeal is disposed of on the

above terms.

6. Both the parties shall appear before the learned Trial

Court on 17th October, 2011 when the learned Trial Court shall

fix the date for hearing of both the parties on the issue of

inherent lack of jurisdiction of the Civil Court. The learned Trial

Court shall expedite the hearing in the matter.

7. LCR be returned back immediately through a special

messenger.

8. The appellant has deposited the decretal amount in

terms of the order dated 16th March, 2011. Let the said

amount be released to the respondent subject to furnishing the

security to the satisfaction of the Registrar General of this

Court.

9. Copy of this order be given 'Dasti' to learned counsels for

both the parties under signature of Court Master.

J.R. MIDHA, J SEPTEMBER 26, 2011 mk