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Judgment
Vinod K. Sharma, J.
CMNo. 3286-C of 2006
This is an application u/s 5 of the Limitation Act for condoning the delay of 33 days in filing the appeal.
It has been averred in the application that the counsel in lower court did not inform the applicant-appellants about the passing of judgment and decree dated 7.6.2005 by learned Additional District Judge, Gurgaon. It was only in the month of July, 2005 that the applicants came to know about the passing of the said judgment and decree, when the matter was put up before the authorities for taking decision for filing the present appeal. It has further been averred that it was due to procedural delay that the delay of 33 days in filing the appeal has occurred in filing the appeal.
Notice of the application was given to the respondent. Learned Counsel appearing on behalf of the respondent has not filed any reply to the civil misc. Thus, the averments made in the application remain unrebutted.
Consequently, the application is allowed and the delay of 33 days in filing the appeal is condoned.
RSANo. 1323 of 2006
This regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which suit filed by the plaintiff-respondent for declaration and consequential relief of permanent injunction has been ordered to be decreed.
The plaintiff filed a suit on the ground that he was consumer of electricity and was allotted AccountNo. PD-447. It was the case of the plaintiff that he was making regular payment of electricity bills as and when served upon him. However, the electric meter of the plaintiff was burnt in the month of March, 1997 and was replaced by defendantNo. 2 through MCCNo. 44/240 dated 5.3.1997. Said meter was again burnt in January, 1998 which was also replaced by defendantNo. 2 on 25.6.1998. The plaintiff was served bills on average basis. It was in the month of February, 1998 that a refund of Rs. 59,182/-was made on account of overhauling of the account of the plaintiff for the period from 10/96 to 6/97. It was the case of the plaintiff that after that BillNo. 2612 for the period of 7/98 to 8/98 for a sum of Rs. 18,390/-was received whereas the actual consumption charges were only Rs. 2448/-. It was further the case of the plaintiff that in spite of requests having been made for correction of the bills no action was taken and thus, the plaintiff deposited demanded amount on 27.10.1998. Thereafter, a bill for Rs. 6,494/-was served upon the plaintiff which was paid. Thereafter another bill was sent on 27.1.1999 for a sum of Rs. 1,18,456/-payable by 12.2.1999 and for Rs. 1,24,777/-thereafter. The said bills were challenged by the plaintiff before the District Consumer Redressal Forum, Gurgaon. During the pendency of the complaint another bill was served for a sum of Rs. 1,29,142 payable by 12.3.1999. It was the case of the plaintiff that actual amount of electricity consumed by the plaintiff was Rs. 4,993.92P. Along with the other charges the total bill came to be Rs. 4365.09P. An injunction was prayed against the appellants-defendants from disconnecting the electricity.
Written statement to the suit was filed. It was claimed in the written statement that amount of Rs. 59,182/-which was refunded on account of overhauling of the account was not in accordance with rules. It was claimed that the bills have been raised in accordance with the rules which the plaintiff was liable to pay.
Learned trial court on appreciation of evidence decided issueNo. 1 in favour of the plaintiff and held the demand notice to be illegal, arbitrary and not binding on the plaintiff for the reason that the plaintiff had already paid the bills as per consumption of electricity and there was no allegation that the meter was defected.
In appeal the findings recorded by the learned trial court have been affirmed. Learned Counsel appearing on behalf of the appellants has challenged the orders passed by the learned courts below on the assertion that the same are the outcome of misreading of evidence and misapplication of law applicable. The contention of the learned Counsel for the appellants was that once a bill was raised under the instructions of the appellants the consumer was liable to pay the said amount.
However, this plea of the apppellants cannot be accepted.Learned courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff has been paying the bill for consumption of electricity regularly and at no stage there was any allegation of the meter being defective. The court below observed that rather on overhauling it was noticed that the plaintiff had paid in excess. It was further found that the action of the defendant was totally arbitrary in raising the demands.
No ground is made out which may call for interference by this Court in regular second appeal.
No question of law much less substantial question of law arises in the present appeal for consideration of this Court.
Dismissed.