Gujarat High Court
Vallabhbhai Devsibhai Sojitra C/O ... vs Western Gujarat Ele. Co.Ltd Known As ... on 19 June, 2024
NEUTRAL CITATION
C/FA/2186/2007 ORDER DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2186 of 2007
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2007
In R/FIRST APPEAL NO. 2186 of 2007
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VALLABHBHAI DEVSIBHAI SOJITRA C/O GAYATRI GYANTIRTH
VIDYARTH
Versus
WESTERN GUJARAT ELE. CO.LTD KNOWN AS GUJ.ELECTRICITY
BOARD
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Appearance:
MR PRADEEP PATEL(642) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/06/2024
ORAL ORDER
ORDER IN FIRST APPEAL:-
1. This appeal is filed under Section 96 of the Code of Civil
Procedure, 1908. The appellant has challenged the judgment and
decree dated 10.07.2006 passed by learned 10 th Additional
Senior Civil Judge, Junagarh in Special Civil Suit No.49 of
2000.
2. Heard learned advocate Mr. Pradeep Patel for the appellant
and learned advocate Ms. Lilu K. Bhaya for the respondent.
3. The brief facts of the case are as under:-
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3.1. The respondent herein-original plaintiff filed a suit for
recovery of Rs.10,63,509.77 paise together with delayed
payment charges @ 24% per annum from the date of filing of
the suit till realization against the defendant. On the inspection
on 18.03.1990 being carried out by the officers of the checking
squad of P.G.V.C.L, it was found that the terminal was in a
burnt condition, wiring of the terminal was direct and the meter
was found in a burnt condition, rojkam was drawn in the
presence of the officers of the respondent and checking report
was also prepared by the officers of respondent. Resultantly, the
electric connection was disconnected immediately and
supplementary bill for power theft for an amount of
Rs.9,01,518.56 was issued to the appellant-defendant. The
decision of the issuance of the bill was not challenged by the
defendant appellant. A notice was issued through an advocate to
defendant on 17.06.1999. Since the said notice was not
complied with. Respondent filed a suit for recovery of
Rs.10,63,509.77 paise with interest.
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3.2. Though the summons of the suit was served to the
defendant, the defendant-appellant neither appeared nor filed
any written statement before the learned trial Court. The learned
trial Court framed issues at Exhibit-8 which are reproduced as
under:-
"1. Whether the plaintiff proves that the defendant has
committed the theft of electricity as alleged in plaint?
2. Whether the plaintiff proves that the suit bill of
Rs.9,61,518-56 ps. on the ground of theft committed by the
defendant?
3. Whether the plaintiff proves that the total dues are of
Rs.10,63,509.77 ps. including delay payment charges of
Rs.1,29,413.38 ps. against the defendant?
4. Whether plaintiff is entitled for relief as prayed for in
plaint?
5. What order and decree?"
3.3 After considering the evidence, learned 10 th Additional
Senior Civil Judge, Junagarh decreed the suit on 10.07.2006 and
directed the appellant-defendant to pay an amount of
Rs.10,63,509.77 paise with interest @ 9 per cent per annum to
the plaintiff-respondent from the date of filing of the suit till
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realization.
3.4. Being aggrieved and dissatisfied with the impugned
judgment and decree, the appellant is before this Court.
4. The case of the appellant is that meter was not tempered
with by the appellant and when the Investigating Team visited
the place, it was already in a burnt condition and therefore, there
is no case of theft of electricity as alleged by the plaintiff
respondent. It is further submitted that the summons of the case
was served without copy of plaint and documents to the
daughter of the defendant-appellant on 26.07.2003 and the
daughter forgot to inform the appellant about the suit
proceedings. Resultantly, the appellant could not remain present
and defend the suit.
5. The ground to challenge the judgment and decree is
mainly that the suit was proceeded ex parte. The appellant has
also raised a ground that the documents produced by the
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C/FA/2186/2007 ORDER DATED: 19/06/2024
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respondent-plaintiff were not proved by the plaintiff as none of
the officers who prepared the documents were examined. It is
also alleged by the appellant that the judgment and decree is
erroneous and the suit may be remanded back to the learned trial
Court for fresh adjudication. It is also a ground of challenge that
finding of the meter in a burnt condition ipso facto does not
prove that the theft of electricity is being committed by the
appellant.
6. Per contra, learned advocate Ms. Lilu K. Bhaya for the
plaintiff-respondent has vehemently submitted that there is no
case made out in the appeal and the appeal deserves to be
dismissed. It is further submitted that plaintiff respondent gave a
commercial connection vide Consumer No.80328/00156/2/C.L.
to the defendant on 18.09.1997. The defendant was also
supposed to pay the bill amount within the stipulated time. It is
further submitted that the defendant also gave an undertaking to
the plaintiff that even if there is no consumption of power, till
completion of two years, defendant shall pay minimum charges
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to the plaintiff. A checking was undertaken by the officers of the
plaintiff on 18.03.1999 and in the process of checking, it was
found that the terminal was in a burnt condition and the wiring
of the terminal was in direct condition and there were no seals.
Besides these araldite was found between the meter body and
cover which was in a broken condition.
6.1. It is further submitted that the defendant appellant had
committed theft of electric power and the electric connection
was disconnected pursuant to the report of the officers of the
plaintiff. The said report is produced at Exhibit-20, wherein
theft of electric power is proved. The supplementary bill at
Exhibit-22 was immediately issued to the defendant. However,
the defendant neither challenged that supplementary bill before
the competent authority nor paid the amount mention in the
supplementary bill. A notice thereafter, was issued at Exhibit-23
on 17.06.1999 and defendant was called upon to pay an amount
of Rs.10,63,509.77 paise. The said notice was neither replied
nor complied with. Hence, the suit was filed against the
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defendant for a recovery of an amount of Rs.10,63,509.77 paise.
It is further submitted that plaintiff examined Mr. Rashikbhai
Bhurabhia Poshia at Exhibit-18. The defendant did not cross-
examine the witness of the plaintiff and also did not lead any
oral evidence. It is submitted that since the contentions and the
allegations made by the plaintiff against the defendants are
uncontroverted, the presumption can be drawn that the
defendant has admitted the case of the plaintiff. Thus, there is no
reason to interfere with the findings of fact and hence prayed for
dismissal of the First Appeal.
7. I have considered the submissions and the record and
proceedings produced on record before this Court. It transpires
from the record that that a commercial connection being
Consumer No.80328/00156/2/C.L. was given to the defendant
in the year 1997. On checking site of the defendant, the officers
of the plaintiff-respondent found that the meter was in a burnt
condition, there were no seals and the wiring of the terminal was
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direct. Thus, it was a case of theft of electricity and
supplementary was raised against the defendant. Notice was also
issued at Exhibit-23 to the defendant. But defendant remained
silent and did not resist the notice. The contention raised by the
appellant the suit proceedings proceeded ex parte, has no force
since it is an admitted fact that the summons of the suit were
duly served to the daughter of the appellant. It is for the
defendant to show that what special circumstances prevented
defendant to counter the suit.
8. It is not the case of the appellant that summons of the suit
were not served. What is emphasized is that along with
summons, copy of plaint and the documents were not served.
Once the service of summons is completed, it is the duty of the
defendant to appear in the proceedings and defend the case.
Even the appellant could not point out the source of knowledge
of passing of the decree and judgment dated 10.07.2006. Thus,
as a fence sitter, defendant-appellant allowed the suit
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proceedings to proceed, and when decree is passed against
defendant, a lame excuse is taken by defendant regarding
proceedings be ex parte, such contention has no force in the
present set of facts. In absence of any material, I do not find any
reason to interfere with the findings which has been arrived at
by the learned trial Court. The learned trial Court has considered
the oral evidence as well as documentary evidence and
thereafter, decreed the suit. So far as the contention raised by the
appellant in the memo of appeal that the documents produced by
the respondent-plaintiff are not duly proved as the officers who
prepared the documents were not examined. Such contention
has no force in the eye of law.
When the defendant has not cross-examined the plaintiff's
witness and has not challenged the genuineness or veracity of
the documents and contents thereof, it is not open for the
appellant to raise a contention that the documents are not proved
as per the provisions of the Indian Evidence Act. At this stage.
Except bald allegations of non-proving of documents there is
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nothing worth pointing out any illegality in exhibiting
documents.
10. Thus, in view of the totality of the facts and circumstances
of the case, I do not find any reason to interfere with the
findings which has been arrived at by the learned trial Court.
Hence, the present First Appeal is dismissed. No order as to
costs.
11. Record and proceedings be sent back to the learned trial
Court below forthwith.
ORDER IN CIVIL APPLICATION:-
In view of the order passed in the main matter, the present
Civil Application does not survive and the same is disposed of
accordingly.
(D. M. DESAI,J)
RINKU MALI
