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Judgment
K.N. Phaneendra, J.—The appellants herein are the defendants in O.S. No. 61/1989 on the file of the Munsiff at Yadgir. The respondents are the plaintiffs in the said suit.
For the purpose of convenience, I would like to retain the ranks of the parties as per their ranks before the Trial Court.
The plaintiffs filed a suit against defendants for declaration that, they are not the consumers of RR No. 2528 and RR No. 2530 of KEB Brach of Yadgir and they are not liable to pay any amount to the respondents and seeking for an injunction restraining the defendants from recovering any amount from the plaintiffs.
It is specifically contended that plaintiff No. 1 is the father of plaintiff No. 2 and the properties shown in the schedule to the plaint are, property Nos. 15, 407/3, 435/1. It is alleged that, the defendants claiming that the plaintiffs are the consumers of Installations-RR No. 2528 and RR No. 2530 of KEB of Yadgir Town, got issued a notice served on Plaintiff Nos. 1 & 2 by the Tahsildar for recovery of an amount of Rs. 25,119.55 and Rs. 24,268.25 respectively, ie., totally an amount of Rs. 49,387.00 and the Tahsildar, Yadgir is making all his efforts to recover the said amount as arrears of Land Revenue at the instance of the 2nd defendant. It is specifically contended at Para-5 of the plaint that Plaintiff Nos. 1 & 2 are not at all concerned to Installation Nos. RR:2528 and RR:2530 and they have not at all consumed any electrical energy and entered into any agreement with Defendant No. 2. They never made any payment towards electrical energy consumption etc. In fact, the plaintiffs have sent a notice on 03.10.1998 to Defendant No. 2 and also to the Tahsildar repudiating their liability of payment of any charges and requested them to withdraw the notice and drop the proceedings, but they did not do so. Therefore, the plaintiffs have filed a suit for several reliefs.
The defendants appeared before the Trial Court and in fact they have taken-up a contention that the plaintiffs are the consumers of electricity from the Defendants through RR Nos. 2528 and 2530 and they have executed an agreement in favour of the defendants. In fact from 1977 to 1988 they have consumed electricity and as per the line charges, they are liable to pay a sum of Rs. 49,387.80 towards the electricity charges of the said Installations.
It is contended by the defendants that the suit is not maintainable in the light of Section-6 of the Karnataka Electricity Board (Recovery of Dues) Act, 1976 (for short, ''KEB Act''). Further, it is contended that the recovery proceedings are totally independent proceedings and it can be recovered as if land revenue. Therefore, the said proceedings cannot be stalled by the Court and the Tahsildar has got rights to recover the said amount. It is also contended that the suit is barred by limitation and also barred under Section 61 of the Karnataka Land Revenue Act, 1965 (for short, KLR Act), as the plaintiffs have no right to interfere with the recovery proceedings.
On the basis of the above said rival pleadings, the Trial Court has framed the following issues:-
i) Whether defendants prove that the plaintiffs were consumers of electricity from the defendants through R.R. Nos. 2528 and 2530 and they have executed an agreement in favour of the defendants?
ii) Whether the defendants further prove that the plaintiffs are in due of Rs. 49,387.80 paise as electricity charges of the above installations?
iii) Whether the suit of the plaintiffs is not maintainable in the present form?
iv) Whether the defendants are not entitled to recover the dues as time barred?
v) Whether the plaintiffs prove that the Tahsildar, Yadgir, has no right to proceed for auction of the suit properties of the plaintiffs to recover the dues?
vi) Whether the plaintiffs are entitled for the reliefs sought?
vii) What order or decree?
The trial Court though observed that the defendants have proved that the plaintiffs are the consumers, however, held that including the arrears as per admission of the defendants that the defendants have only established that the plaintiffs are liable to pay arrears from 1977 to 1980 not from 1982. Therefore, it reduced the liability to the extent of Rs. 21,297.20 and directed that the defendants can recover the said amount from the plaintiffs.
Answering Issue No. 1 in the affirmative, Issue Nos. 2 & 6 partly in the affirmative and Issue Nos. 3 to 5 in the negative, the Trial Court has partly decreed the suit declaring that the plaintiff Nos. 1 and 2 are not at all bound to pay the amount as claimed by the defendants. But, nevertheless, held that the plaintiffs are liable to pay a sum of Rs. 21,297.20 for the period from January 1978 to March 1982.
Being aggrieved by the above said judgment and decree passed by the Trial Court, the plaintiffs have preferred an appeal before the Appellate Court claiming that, when they have taken a specific contention that they are not the consumers and as such, they are not liable to pay any amount to the defendants, the Trial Court has committed serious error in holding that the defendants have proved that the plaintiffs are the consumers and they are liable to pay the amount, as per the decree.
Appeal was also contested by the defendants as respondents therein and in fact the defendants have not preferred any appeal against the judgment and decree passed by the Trial Court. It appears they were satisfied with regard to the decree granted for recovery of the amount as per the decree. The First Appellate Court after considering the grounds urged by the plaintiffs has re-evaluated the materials on record, the oral evidence of DW. 1 and the document-Ex. D1 produced by DW. 1 and came to the conclusion that the defendants have not established that the plaintiffs were the consumers of the electricity for the above said period and no cogent and convincing documents or the oral evidence have been produced before the Trial Court and that the Trial Court has committed a serious error in holding that the plaintiffs are the consumers of Defendant No. 2. On such findings, it allowed the appeal and set aside the judgment passed by the Trial Court and consequently decreed the suit in its entirety restraining the defendants from recovering any amount from the plaintiffs.
The First Appellate Court in fact has formulated a point for consideration in the following manner:-
"Whether the judgment and decree of the lower Court for part dismissal of the suit and fixing liability on the plaintiffs to pay arrears of electricity to the tune of Rs. 21,297.20 paise is capricious, perverse, illegal, etc. and it is without application of material facts placed before it and that it is liable to be set aside."
Answering the said point in favour of the appellants in the affirmative, the First Appellate Court, consequently allowed the appeal as noted above.
Being aggrieved by the said judgment of the First Appellate Court, the present appellants (Defendants before the Trial Court) have preferred this Regular Second Appeal raising several legal aspects before this Court. This Court after hearing the parties, admitted the appeal by raising the following substantial questions of law:-
i) Whether the First Appellate Court is justified in finding with regard to disconnection notice in the case on hand?
ii) Whether the suit is maintainable in the light of Sections-5 & 6 of the KEB (Recovery of Dues) Act, 1976?
iii) Whether the First Appellate Court is right in negativing the claim enforced under the KEB (Recovery of Dues) Act, 1976 in the light of the failure on the part of consumer to file a suit within the stipulated period in terms of the KEB (Recovery of Dues) Act, 1976?
iv) Whether the suit is maintainable when the sale proclamation issued by the Tahsildar exercising the power under the provisions of the Karnataka Land Revenue Act is not challenged by impleading the Tahsildar as party to the proceedings?
v) Whether the suit is maintainable in the light of Section-61 of the Karnataka Land Revenue Act, 1961?
The sum and substance of the above said questions of law framed by this Court, in fact, revolve around the issue with regard to proof of consumership of the plaintiffs. In fact, this Court would have framed a legal question that-
"Whether the First Appellate Court has committed any serious legal error in holding that the plaintiffs were not the consumers under the defendants."
All other questions of law framed by this Court shall be followed by the said legal issue, because, the maintainability of the suit in the light of Sections 5 & 6 of the KEB (Recovery of Dues) Act, 1976 or filing of the suit within the stipulated period in terms of KEB Act, 1976 or whether the Tahsildar exercising powers under Section KLR Act can be prevented by means of filing the suit or whether the suit is maintainable in the light of Section 61 of the KLR Act, all these facts comes into picture only in the event of the defendants proving before the courts that the plaintiffs are the consumers of electricity under the defendants. The issue that, whether the plaintiffs are the consumers or not under Defendant No. 1, is the crux of the case which decides the remaining aspects like, whether for recovery of such alleged amount due; whether the Tahsildar can initiate proceedings and recover the said amount as if the land revenue and in such an eventuality, the Tahsildar can be prevented by the plaintiffs, or they can file a suit as per the KEB (Recovery of Dues) Act, 1976, or to hold that the suit is not maintainable under Section 61 of the KLR Act, etc. Therefore, in my opinion, one more substantial question of law has to be framed.
After hearing the parties, I am of the opinion, it is just and proper to frame the following additional substantial question of law:
"Whether the First Appellate Court has committed any serious legal error in holding that the plaintiffs are not the consumers under Defendants and therefore, they are not liable to pay any amount in favour of defendants."
In order to answer the above substantial question of law, it is just and necessary for this Court to re-look into the materials on record. As both the courts have evaluated the evidence of DW. 1, who is the Assistant Executive Engineer of KEB, Yadgir, and who entered into the witness box in order to prove the issues framed by the Trial Court, he has produced Ex. D1, the only document before the Court. It is an admitted fact by Defendant No. 1 that, the plaintiffs are the consumers of electricity vide RR No. 2528 and RR No. 2530 situated at Mylapura Base, Yadgir, pertaining to a Ginning Factory of the plaintiffs and those installations were serviced on 11.03.1997 and it is an admitted fact that they were disconnected on 30.06.1979. In fact, DW. 1 has stated that the plaintiffs have executed an agreement in favour of KEB at the time of service and the period of agreement was expired on 11.03.1982. It is further admitted in the course of cross-examination that the plaintiffs have issued a notice on 03.10.1988 stubbornly denying that they are not the consumers under the defendants so far as the above installations are concerned and they have denied that they have executed any agreement in favour of the defendants. It is further stated in the cross-examination that, from 1977 to 1988, the plaintiffs have consumed the electricity and paid some amount, and from 1977 to 1982, they were consumers of electricity, but, for nonpayment of some amount, on 23.08.1980, 25.08.1980 and 24.09.1980 memos were issued to the plaintiffs and thereafter, Installation-RR No. 2528 was disconnected and subsequently, on 04.02.1981, the plaintiffs have paid part payment of Rs. 5,570/- in the month of February 1981 and after part payment, re-connection was given. In order to establish these aspects, as admitted in the cross-examination, nothing has been produced before the Trial Court or before the First Appellate Court. In the cross-examination, again it is suggested that the plaintiffs have never made any payment, never executed any document in favour of defendants and they were not at all consumers of electricity under the defendants. Though these suggestions have been denied by DW. 1, but in order to substantiate the said factum DW 1 never produced any document except Ex. D1, which was extensively relied upon by the Trial Court in order to fasten the liability on the plaintiffs to the extent of the amount decreed.
The First Appellate Court in fact has considered the said aspect whether Ex. D1 is the document which has been legally produced before the Court or whether it can be accepted. It is a well-recognized principle of law under the Indian Evidence Act that, if any document is produced before the Court and if it is official document, then the Court can rely upon such documents under Sections 78 of Indian Evidence Act or if the documents are pertaining to regular course of business or transaction of a company or any institution, if it is shown to the Court, the said documents have been maintained in regular course of their business, then also the Court can rely upon those documents. Therefore, in this background, the Court has to see whether Ex. D1 has been proved to the satisfaction of the Court in such a manner. The document-Ex. D1, as I have carefully examined, contains four independent extracted sheets of the alleged ledger maintained by the defendants. Of course which show that the plaintiffs are the consumers of electricity pertaining to RR Nos. 2528 and 2530, but this particular document is not acceptable, because it is not shown or certified that this Ex. D1 was maintained in the regular course of business of the defendants. The defendants have not produced the entire ledger before the Court to show that the entries made therein are made in the regular course of business and the entries made therein are in accordance with law and therefore, the same is acceptable. If the entire ledger book itself would have been produced, the Court would have been in a position to ascertain whether the said document-Ex. D1 is maintained in the regular course of the business. In the absence of any certification on Ex. D1 by the competent authority or the ledger itself being not produced before the Court, the isolated pages of the alleged original ledger being produced before the Court, in my opinion, cannot be accepted, as rightly held by the First Appellate Court. If Ex. D1 is the part and parcel of the ledger book and how come these papers can be removed from the original book and why such an act has been done, are not explained before the Court. Therefore, it is rightly suggested to D.W. 1 by the plaintiffs that the present document produced before the Court as Ex. D1 is not reliable and it is suggested that the said document is prepared and concocted for the purpose of the case by the defendants.
Looking to the above facts and the evidence of DW. 1 and on a careful and meticulous reading of Ex. D1, it does not comply with the requirement of law with regard to the proof of the document. Therefore, if Ex. D1 is eschewed from consideration, nothing remains to show that the defendants have established that the plaintiffs are the consumers of electricity pertaining to the above noted two installations.
The Additional Issue framed by this Court has to be answered holding that the First Appellate Court has not at all committed any serious error in coming to the conclusion that the defendants have failed to establish that the plaintiffs were the consumers of the above said two Installations and that they are liable to pay any amount in this regard.
As I have already stated, the other substantial questions of law framed by this Court are dependent upon the findings of the additional substantial question of law framed by this Court. When once the defendants have failed to prove the relationship between the plaintiffs and the defendants, automatically the subsequent question of recovery of any amount from the plaintiffs, in any manner, does not arise. Therefore, question of referring the matter to the Tahsildar for recovery of the amount and following of Sections 5 & 6 of KEB (Recovery of Dues) Act, 1976, does not arise for consideration and that, preventing the Tahsildar from enforcing such direction of the defendants, does not arise, question of application of Section 61 of the KLR Act also does not come into picture at all.
In view of the above said findings, I am of the opinion that the substantial questions of law framed are answered in favour of the respondents and against the appellants herein. Consequently, the appeal is also liable to be dismissed. Hence, the following:
ORDER
This Regular Second Appeal filed by the appellants is dismissed.