C.E.S.C. Limited and Others vs Ram Nivas Shaw

Samapti Chatterjee, J—The petitioner has filed the present revisional application assailing the order No. 13 dated 20th January, 2015 passed by the Learned Judge, Bench-VIII, City Civil Court, Calcutta in T.S. No. 118 of 2014 (Ram Nivas Shaw vs C.E.S.C Limited & Anr).

The case of the petitioner/CESC Company Limited is that plaintiff/opposite party is a consumer of electricity under the CESC Limited, Kolkata, North Region office. The plaintiff/opposite party applied before the petitioner/defendant for installation of a new meter in premises being No. 166A, Ahiritola Street, Kolkata. Inspection took place and the plaintiff/opposite party was directed to pay the earnest money and thereafter accordingly on 28th November, 2013 the CESC Company Limited installed the meter in the name of the plaintiff/opposite party at the said premises. Since the plaintiff/opposite party was threatened by the defendant/petitioner to disconnect the electricity to the plaintiff/opposite party''s premises, therefore, the plaintiff/opposite party filed the said suit and when the petition was pending the petitioner illegally disconnected the supply of the electricity to the plaintiff/opposite party''s premises on 5th July, 2014 as a result thereof the plaintiff/opposite party filed a petition under Section 151 for restoration of the electric supply to the plaintiff/opposite party''s premises.

It also appears that in the notice of disconnection the allegation of pilferage was mentioned by the CESC Limited and an amount of Rs. 3,48,609/- was payable therefor. The said application of the plaintiff under Section 151 of the CPC was allowed by the Learned Judge, Bench-VIII, City Civil Court, Calcutta by directing the defendant/petitioner to restore the electricity connection to the meter No. 4896467 of the plaintiff immediately within seven days from the date of payment of Rs. 40,345/- by the plaintiff/opposite party to the CESC Limited.

Hence, the present revisional application.

Mr. U.S. Bhattacharya learned Advocate appearing for the petitioner submits that the impugned order is irregular, illegal and at the same time bad in law as the said Court has no jurisdiction to try the said suit. Under Section 145 of the Electricity Act, 2003, filing of suit before any Civil Court against disconnection of electricity is barred. The said Section 145 of the Electricity Act, 2003 is quoted below:-

"Section 145 - Civil court not to have jurisdiction - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

Therefore, the City Civil Court, Calcutta has no jurisdiction to entertain/try the said issue of disconnection.

Mr. Bhattacharya also vehemently urged that there is no bar to file a revisional application and also an application under Section 227 of the Constitution of India challenging the order passed in an application under Section 151 of the Code of Civil Procedure.

Mr. Bhattacharya also vehemently urged that when any order is passed by a Court lacking jurisdiction then against that impugned order petition under Article 227 lies instead of appeal because appeal is the normal procedure as per Civil Procedure Code and when an order is passed by the Court which has no jurisdiction that order can be challenged by filing an application under Article 227 of the Constitution of India instead of preferring shall appeal before the Division Bench.

Mr. Bhattacharya further strongly contended that any order passed in an application under Section 151 of Civil Procedure Code is not appellable. Therefore, challenging the said order by filing revisional application is not barred. In support of his contention Mr. Bhattacharya relied on decisions reported in West Bengal Agro Industries Corporation Ltd. Vs. Sirajul Haque, (2012) 2 CHN 529 , L and T Finance Limited Vs. Anup Kumar Bera and Another, AIR 2014 Cal 78 : (2014) 3 CPJ 124 : (2014) 2 WBLR 897 , Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, AIR 2006 SC 1474 : (2006) 101 CLT 659 : (2006) 3 CTC 185 : (2006) 2 JT 351 : (2006) 2 SCALE 304 : (2006) 3 SCC 312 : (2006) AIRSCW 1077 : (2006) 2 Supreme 75 and Rita Das Vs. Jayashri Ghosh, (2012) 1 CHN 272 .

Mr. Bhattacharya also vehemently contended that provision of appeal does not create any bar to exercise the jurisdiction under Article 227 of the Constitution of India. In support of his contention State of Madhya Pradesh Vs. Babu Lal and Others, AIR 1977 SC 1718 : (1977) 2 SCC 435 , 87 CWN Page-358 (Hiralal Show And Ors vs State Of West Bengal), Union of India (UOI) Vs. Ad-hoc Claims Commissioner and Others, AIR 1977 Cal 393 : (1977) 1 CALLT 159 : (1977) 1 CompLJ 456 : 81 CWN 649 .

Mr. Bhattacharya also relied on Section 104 and 105 of Civil Procedure Code.

In conclusion Mr. Bhattacharya contended that the revisional application should be allowed by this Hon''ble Court by setting aside the impugned order No. 13 dated 20th January, 2015 passed by Learned Judge, Bench-VIII, City Civil Court, Calcutta in T.S. No. 118 of 2014.

Per contra, Mr. Abhijit Ray, learned Advocate for the plaintiff/opposite party contended that the nature of the impugned order No. 13 dated 20th January, 2015 clearly shows that an interim order was passed to restore the electricity of the opposite party/plaintiff''s premises after depositing Rs. 4,345/- by the plaintiff with the CESC Limited/defendant/petitioner. As per order 43 Rule 1 of the Civil Procedure Code rejection of any interim order or granting of an interim order an appeal lies. Therefore, the opposite party should have filed first miscellaneous appeal instead of filing the present revisional application.

Mr. Ray further contended that the defendant/petitioner has chosen the wrong forum by filing the revisional application instead of filing appeal as per Order 43 Rule 1 of the Civil Procedure Code. Therefore, this revisional application is not the proper forum to challenge the order impugned.

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and also the decisions relied on by Mr. Bhattcharya I find that though this impugned order was passed in an application filed under Section 151 of the Civil Procedure Code but relief prayed for in the said application clearly indicates that the said application was filed for some interim relief. Prayers in the application under Section 151 of the CPC are quoted below:-

a) "Mandatory injunction directing the defendants to restore the supply of electricity of the plaintiff under Meter No. 4896467 at 166A, Ahiritola Street, Kolkata-700 005 under Consumer No. 39086217013 hereunder in any manner whatsoever otherwise than due process of Law.

b) Ad-interim orders in terms of prayers (e) above.

c) To pass other order or orders as your Honour may deem fit and proper."

It is also clear that nature of the order passed in Order No. 13 dated 20th January, 2015 shows that interim order was passed in favour of the plaintiff/opposite party. Some extract of the said order No. 13 dated 20th January, 2015 is quoted below:

"That the petition under Section 151 of CPC filed by the plaintiff on 24/7/2014 is disposed of on contest but without cost.

The defendants are directed to restore the electricity connection to the meter number 4896467 of the plaintiff immediately within seven days from the date of payment of Rs. 4,345 by the plaintiff to the defendants."

Therefore, I find though the nomenclature is different as it is filed under Section 151 of the CPC instead of Order 39 Rule 1 and 2 of the Civil Procedure Code but the relief sought for in the said application and the nature of the order passed in the said application clearly indicates that an interim relief has been granted in favour of the plaintiff/opposite party. Therefore, as per Order 43 Rule 1 of the Civil Procedure Code any order granting of injunction or refusal of injunction is appellable. The said Order 43 Rule 1 is quoted below:

"1. Appeal from orders. - An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

(f) an order under rule 21 of Order XI;

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable;

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

(n) an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(na) an order under rule 5 or rule 7 of Order XXIII rejecting an application for permission to sue as an indigent person;

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) AN ORDER UNDER RULE 2, RULE 3 OR RULE 6 OF Order XXXVIII;

(r) an order under rule 1, rule 2 [rule 2A] rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1 or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 [or rule 23A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(w) an order under rule 4 of Order XLVII granting an application for review."

It is not disputed that under Section 145 of the Electricity Act, 2003 filing of any suit before any Civil Court against disconnection of electricity supply is barred but challenging mandatory impugned order passed in Order No. 13 dated 20th January, 2015 in the said revisional application is in my opinion not maintainable as per Order 43 of the Civil Procedure Code. There should be a regular appeal in form of first miscellaneous appeal against granting of interim order instead of challenging that interim order by filing revisional application. Whatever the decisions relied on by Mr. Bhattacharya all have been challenged in revisional application from a regular appeal. But in the present case the petitioner/defendant without preferring miscellaneous regular appeal before the appellate forum under Order 43 Rule 1 of the Civil Procedure Code has challenged the impugned order by filing the revisional application.

After considering the decisions relied on by Mr. Bhattacharya and after considering the relief sought for in the said application under Section 151 of the CPC filed by the plaintiff/opposite party and the nature of the order passed in Order No. 13 dated 20th January, 2015 in Title Suit No. 118 of 2014 I am of the opinion that petitioner instead of filing the present revisional application should have challenged the same by filing regular appeal before appellate forum. Therefore, in my opinion, the revisional application is not maintainable and therefore, should be dismissed.

Accordingly the revisional application is dismissed but the dismissal of the revisional application will not prevent the petitioner to file a regular appeal before the appellate forum after taking back the original certified copy of the impugned order No. 13 dated 20th January, 2015 passed by the Learned Judge, Bench-VIII, City Civil Court, Calcutta in T.S. No. 118 of 2014. Merit of the matter, it is made clear, has not been gone into.

This application is dismissed without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.