Uttar Haryana Bijli Vitran Nigam Ltd. vs Sh. Harjit Singh

Sanjay Kishan Kaul, C.J.—This is a case where the matter is being carried from one forum to the other unnecessarily when the appellant has not cared to take the relevant defences in its written statement filed before the trial Court. The suit was filed by an electricity consumer aggrieved by the disconnection of his electricity arising from a disputed bill. The appellant before us being electricity supplier entered appearance on 3.12.2012 when the consumer expressed his readiness to deposit the forty percent of the bill amount under protest. In view of the statement, recovery of balance amount of the bill was stayed with a direction to the consumer to pay future bills and the application was disposed of. There is nothing contained in the order dated 3.12.2012 to even suggest that the counsel, who had entered appearance for the electricity company, wanted to further contest the interlocutory order or that the interim arrangement was not acceptable to him which almost partakes the character of a consent order.

Insofar as the suit is concerned, time was granted to file the written statement which was subsequently filed. In this written statement, no plea of lack of jurisdiction and bar of suit under any statutory provision has at all been taken. There is only the first preliminary objection which states that the suit is "not maintainable", an aspect quite different from pleading bar of the jurisdiction of the civil Court on account of any statutory provision. While dealing with the paragraph of cause of action and jurisdiction, there is general denial while conceding to the territorial jurisdiction. It is not in issue that no application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 was ever filed for rejection of the plaint on any ground, more specifically, there being bar of law.

Insofar as the aspect of interim relief is concerned, in law, the same is an appealable order, but no appeal was filed against that order, possibly, because there has been really no contest even before the trial Court. On the other hand, the writ petition was filed under Articles 226/227 of the Constitution of India for reasons best known to the appellant seeking to assail the order dated 3.12.2012. It is this writ petition, which was filed and pressed and a judgment invited from learned single Judge, which has been dismissed vide impugned order dated 9.7.2013.

In the writ petition, the appellant before us had taken the solitary plea of bar of jurisdiction of the civil court in view of the provisions of Section 145 of the Electricity Act, 2003. The learned single Judge has opined that this plea was not even raised before the civil court and the writ petition is misconceived while examining the effect of the provisions of Section 145 read with Sections 56 and 42 of the Electricity Act. It has been opined that the jurisdiction of the civil Court is barred only to a limited extent, i.e., for matters arising out of the actions taken u/s 126 or 127 of the Electricity Act while the dispute in the present case falls within the scope of Section 56 of the Electricity Act. Insofar as the issue of appropriate relief to be considered only by the Tribunal is concerned, it has been opined that in the factual matrix of the case, there would be an option of remedy u/s 42(5) of the said Act or the civil Court.

The aforesaid order is now sought to be assailed before us in a letters patent jurisdiction which, in the given facts of the case, would really amount to a second appeal against an interlocutory order which itself would not be maintainable if the appropriate course of remedy of filing an appeal from the order of the civil court would have been availed of under Order 43 of the said Code.

Learned counsel for the appellant has vehemently contended before us that the ramifications of the matter are large much beyond the individual consumer and that is why the matter has been carried forward. If we may say so, the appellant wants us to take it out of the mess which is its own creation by neither taking appropriate defences and then taking appropriate remedies. The very edifice of defence has not been built in the civil suit and yet on a theoretical aspect the matter is sought to be carried forward.

In the aforesaid circumstances, learned counsel for the appellant, thus, concedes that the appropriate course would be to amend the written statement to incorporate all the relevant pleas and defences as may be available to the appellant as also move the trial Court by filing an application under Order 7, Rule 11 of the said Code. His apprehension is that an independent application of mind may not be possible because of the impugned order of the learned single Judge.

We are of the view that what is submitted before us by learned counsel for the appellant, insofar as the appropriate course of action is concerned, is really the only course of action. Unless a specific plea is taken, the occasion for the trial Court to apply its mind to the issue would not arise. Such defence may result in framing of either a preliminary issue or decision on the issue during the course of trial. Not only that, the option is available to the appellant to move an application under Order 7, Rule 11 of the said Code to invite an opinion on the same.

We do believe that the apprehension of the appellant may have some merit, albeit a creation of the appellant itself by taking recourse to an inappropriate course of action. But then what was before the learned single Judge under Articles 226 and 227 of the Constitution of India was really an appeal against an interlocutory order passed under Order 39, Rules 1 and 2 of the said Code predicated on a defence not disclosed before the trial Court of bar of jurisdiction. It was, thus, really not necessary for the learned single Judge to have opined on the various ramifications of the same, as the appellant ought to have been relegated to appropriate remedy. It is not possible to opine by the learned single Judge as to whether defence is of such a nature as would result in an opinion on an application under Order 7, Rule 11 of the said Code or a preliminary issue or whether it would be a matter which should be decided post trial.

It would, thus, not be appropriate to shut out the remedies which are in law available to the appellant because the appellant has taken recourse to inappropriate remedies. In any case, any order passed of the nature, as impugned before us, can only be prima facie in character, as it arose out of an order passed by the trial Court under Order 39, Rules 1 and 2 of the said Code.

We are, thus, of the view that if the appellant seeks to amend the written statement and file appropriate proceedings before the trial court for rejection of the plaint, an independent application of mind would be made by the trial Court keeping in mind those pleas and the material produced to determine whether there is bar to the suit on account of a statutory provision and/or whether the plaint is liable to be rejected or not, uninfluenced by any observations which may have been made against the appellant in the impugned order.

The appeal accordingly stands disposed of. We may note in the and that as per order dated 13.11.2013 we had recorded that service was complete but none had chosen to appear for the respondent and we had, thus, sought the assistance of Mr. Puneet Bali, Senior Advocate as Amicus. We appreciate the assistance rendered by the learned senior counsel to resolve the controversy.