Madras High Court
Department Of Telecom Rep By vs A.Mohammed Kamaludeen on 26 April, 2021
S.A.No.835 of 2008
fIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.835 of 2008
Department of Telecom rep by
The General Manager,
Bharath Sanchar Nigam Limited
Thanjavur Telecom District,
Thanjavur ... Appellant
Vs
A.Mohammed Kamaludeen ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree passed in A.S.No.42 of
2006 dated 07.01.2008 on the file of the Sub-Court, Mannargudi
reversing the Judgement and Decree passed in O.S.No.71 of 2004 dated
16.12.2004 on the file of the District Munsif, Mannargudi.
1/12
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
For Appellant : Mr.S.Gopinathan
For Respondent : No Appearance
JUDGEMENT
When this matter was posted on 22.04.2021 there was no
appearance on behalf of the respondent though counsel had entered
appearance and their names printed. The appellant has argued the
matter extensively. The matter was therefore adjourned under the
caption “For Orders” today.
2. Even today, there is no representation on behalf of the
respondent. Considering the fact that the appeal is of the year 2008,
this Court is proceeding to pronounce Judgement on the basis of the
arguments of the appellant and the records.
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
3. The plaintiff is the appellant before this Court. The suit is
filed for recovery of a sum of Rs.56,144/- together with interest at 18%
per annum from the date of filing of the suit till the date of realisation.
The said amount was due from the respondent towards the usage of the
telephone bearing old No.36483 subsequently changed as No.KTN
436483 and installed at 67 – B, Tamilar Street, Nelakondali,
Koothanallur, Needamangalam Taluk, Tiruvarur District.
4. The case of the appellant is that this connection was provided
to the respondent on 11.08.2000 and a sum of Rs.1,200/- was collected
as security deposit. As per the terms of the agreement between the
appellant and the respondent / subscriber, the respondent was bound to
pay the amounts claimed in the bills that would be forwarded to him on
a bi-monthly / monthly basis.
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
5. The appellant would submit that though the bi-monthly bills
were forwarded to the respondent, the respondent did not make the
payment and the arrears accumulated to the tune of Rs.56,144/-.
Considering the continued non payment the appellant in order to
exercise their right had disconnected the respondent's connection on
19.10.2001 and the respondent was declared as defaulter. Despite
repeated requests the respondent failed to make the payment. A notice
dated 14.03.2002 was also issued to the respondent, however, there
was no response there by constraining the appellant to file the suit
O.S.No.71 of 2004.
6. The respondent had resisted the above suit on the ground that
there were several discrepancies in the bill and despite his request for
revised bill the appellant had not come forward to provide him with the
same. That apart, the appellant had not taken note of the change in
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
tariff. The respondent would submit that once the revised bill is sent,
he would make the payment. The respondent would submit that the
tariff was calculated as one unit. The respondent has also admitted the
fact that he was using an Internet over the said connection.
7. The parties had gone to trial and on the side of the appellant
one S.Baskaran was examined as P.W.1 and Ex.A.1 to Ex.A.9 were
marked. The respondent examined himself as D.W.1 and marked
Ex.B.1 to Ex.B.12.
8. The learned District Munsif, Mannargudi on consideration of
the pleadings framed the following issues:
“1/thjp nfhjpathW bjhif thjpf;F fpilf;ff;
Toajh>
2/tHf;Fiu jhf;fy; bra;a tHf;Fiuapy;
ifbaGj;jpl;Ls;stUf;F jFjp ,y;iyah>
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
3/jhth bjhiff;F tl;o nfhu xg;ge;jk; ,y;iyah>
4/thjpf;F ntW vd;d gupfhuk; fpilf;ff; ToaJ>
9. On a perusal of the evidence on record both oral and
documentary, the learned District Munsif, Mannargudi returned a
finding that the respondent had not let in any evidence whatsoever to
show that the calculation of the amounts due under the various bills by
the appellant was wrong. On the contrary, the documents filed by the
respondent would not in any manner advance the case of the
respondent that the calculation given by the appellant was wrong.
10. The learned Judge had also observed that if there were any
discrepancy in the bill then the respondent ought to have immediately
approached the department pointing out the discrepancy, such a course
has not been adopted by the respondent and it is only in the Written
statement that he has for the first time made this statement that there
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
are several discrepancies in the bills and that change in tariff has not
been taken into account.
11. The respondent produced Ex.B.1, the order of the District
Consumer Disputes Redressal Forum in C.O.P.No.55 of 2003 to prove
their case that there was discrepancy in the billing. The learned
District Munsif was not inclined to consider Ex.B.1 as the appellant
had filed an appeal against the order of the District Consumer Disputes
Redressal Forum before the State Consumer Disputes Redressal
Commission and the same was pending. Therefore, the learned Judge
was not inclined to accept the said finding of the District Consumer
Forum and had decreed the suit.
12. Aggrieved by the said Judgement and Decree of the learned
District Munsif, Mannargudi, the respondent herein had filed
A.S.No.42 of 2006 on the file of the Sub Court, Mannargudi. The only
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
ground on which the appeal has been allowed was on the ground that
the District Consumer Disputes Redressal Forum had come to the
conclusion that there was deficiency in service on the part of the
appellant department. The learned Subordinate Judge, Mannargudi
therefore held that the appellant herein was not entitled to any relief
and accordingly the appeal was allowed and the Judgement and Decree
in O.S.No.71 of 2004 on the file of the District Munsif Court,
Mannargudi was set aside.
13. Challenging the reversing Judgement and Decree the
appellant is before this Court. The Second Appeal was admitted on the
following substantial question of law on 10.07.2008:
“Whether the Judgement and Decree of the I Appellate Court is
perverse on account of its failure to consider the pleadings as well as
the evidence in their proper perspective warranting interference in
second appeal?”
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
14. Mr.S.Gopinathan, learned counsel appearing on behalf of the
appellant / plaintiff would submit that pending the Second Appeal, the
State Consumer Disputes Redressal Commission, Chennai had passed
an order in the appeal filed by the Department in A.P.No.289 of 2004
filed challenging the order in O.P.No.55 of 2003 on the file of the
District Consumer Disputes Redressal Forum, Tiruvarur. The State
Consumer Disputes Redressal Commission by its order dated
09.05.2008 was pleased to allow the appeal. The State Consumer
Disputes Redressal Commission had observed that the respondent had
admitted that he has been using the Internet service for his business
purpose and that a suit has been filed by the appellant department for
recovery of bill amount.
15. While the suit was pending, the respondent had approached
the District Consumer Disputes Redressal Forum totally suppressing
the pendency of the suit. The respondent who had availed the service
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
of the appellant and who had undertaken to pay the dues is bound to
make the payment. Therefore, the State Consumer Disputes Redressal
Commission had allowed the appeal and set aside the order passed by
the District Consumer Disputes Redressal Forum.
16. In the light of the orders of the State Consumer Disputes
Redressal Commission the Judgement passed by the Appellate Court,
namely, the Sub Court, Mannargudi in A.S.No.42 of 2006 has no legs
to stand. The only ground on which the appeal was allowed was on the
basis of the order passed by the District Consumer Disputes Redressal
Forum. Considering the fact that the order has been set aside in the
appeal by the State Consumer Disputes Redressal Commission the very
basis of the Appellate Court's Judgement fails.
17. The learned Subordinate Judge has not considered the
evidence that has been let in by the appellant. He has further failed to
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
consider that the respondent who pleads that there were discrepancy in
the appeal has not raised any dispute till the filing of the suit. It is only
in the suit for the first time that this defense has been taken. The
learned Subordinate Judge has failed to consider the pleadings and the
evidence filed from its correct perspective and therefore the Judgement
and Decree of the learned Subordinate Judge has to be set aside.
18. In view of the above discussion, the Substantial Question of
law is answered in favour of the appellant and the Second Appeal is
allowed. However, there shall be no order as to costs.
26.04.2021
kan
Index : Yes/No
Speaking order/non-speaking order
To
1.The Sub-Court, Mannargudi.
2.The District Munsif, Mannargudi
https://www.mhc.tn.gov.in/judis/
S.A.No.835 of 2008
P.T.ASHA, J.,
kan
S.A.No.835 of 2008
26.04.2021
https://www.mhc.tn.gov.in/judis/
