Bses Yamuna Power Ltd vs Badle
2011 Latest Caselaw 4815 Del

8
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +      RFA No.361/2010

%                          Date of decision: 27th September, 2011.


      BSES YAMUNA POWER LTD                         ..... Appellant
                    Through :         Mr. Manish Srivastava, Adv.

                  versus

      BADLE                                 ..... Respondent
                          Through :   Mr. H.L. Verma, 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 Court 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. Copy of this order be given 'Dasti' to learned counsels for both

the parties under signature of Court Master.

J.R. MIDHA, J SEPTEMBER 27, 2011 mk