Kamaljit Singh vs Punjab State Electricity Board

Rajiv Narain Raina, J.—The subject matter of the suit relates to a notice of theft of electricity under the Indian Electricity Act, 2003 served by the respondent on the petitioner who is a consumer of electricity. The suit has been brought for a restraint order against penalty imposed for theft of electricity. The Punjab State Electricity Board has contested the suit and has taken an objection that the civil suit is not maintainable in view of the express bar contained in the provisions of the Indian Electricity Act, 2003. The trial Court has framed issues No. 4 and 5 as follows:--

"Issue No. 4:--

Whether the civil court has got jurisdiction to try the present suit? OPP.

Issue No. 5:--

Whether the suit is maintainable in the present form? OPP."

While framing these issues, the onus on the same has been placed by the learned trial court upon the plaintiff, the petitioner before this Court.

Aggrieved by the order of the learned trial court refusing to place the burden of issues 4 and S on the defendant Board the plaintiff has approached this court under article 227 of the Constitution praying for setting aside of the order and issuing a corrective direction.

It is trite that the burden of proof on the objection as to jurisdiction has to be discharged by the Board and not by the plaintiff. The plaintiff made a request to the trial Court under Order 14 Rule 5 CPC which has been turned down by the impugned order dated April 2, 2014 passed by the Civil Judge (Junior Division), Ludhiana. The learned trial Court has made an interesting observation in the order. The Court says that in case the words "no jurisdiction" had been used in the issue framed by the predecessor court then the burden could shift on the defendant, little realizing that issue No. 4 has not been well worded by the predecessor Court and does not reflect what the preliminary objection really means in cause and effect. Whenever trial courts find ex facie or accidental errors in orders passed by predecessor courts in framing issues or that those do not reflect the real controversies arising in the case they should never shy away or hesitate to revisit those errors and correct them whenever noticed even suo motu but after notice to parties but before the evidence starts. Such an exercise cannot completely alter the issue but to tune it up and refine it to suit the pleadings. The court applies its mind for the first time on framing of issues when it reads the pleadings. It is the duty of the court to frame issues and not that of counsel. Counsel can only help by producing proposed issues. By way of a word of advice, trial courts in routine should call upon the respective counsel to give their views in writing by way of proposed issues and keep them duly signed by counsel on record for any future reference by numbering the Mark ''A'' and Mark ''B'' and so on in case of multiple counsel Mark ''C'' etc. This would remove any friction that may be caused later between the parties and for a superior court to look at in case the need arises. With the two proposed issues in hand the trial court should put a short date if it is not able to apply its mind on the dais immediately, as can well be, then to take them in chambers or home and reflect upon the case and them strike them with due application of mind on both text, context, content of pleadings and burden of proof, with a view to successively launch the trial properly. Effort should be also not to frame useless issues in excess of what are the core disputes on which parties actually deserve to go to trial, they should be the fewest in number covering all aspects or points of friction deserving recording of findings of fact and law or mixed questions of law and fact. This will easily come to the civil judge newly recruited to junior division in a short time by hard work and constant practice. However, legal reasoning is a complex issue where everything depends on the ware withal each individual junior judge carries from his past into his new experience.

Talking of reasoning in this case I would help the learned judge: The case before him in the application was that the burden of issues 4 and 5 should not have been placed on the plaintiff against whom the PSEB had come down heavily with a penalty order for theft of electricity. The defense was that the suit is not maintainable for want of jurisdiction in the civil court. The predecessor judge had framed in his wisdom many issues two of which were disputed to the extent of placing burden on the plaintiff. Plaintiff wanted the yoke of onus to be put on the neck of PSEB since they were the one who questioned maintainability. The plaintiff was right in his thinking. The learned judge was worried to alter what his predecessor judge had done and was not to sure what he could do. A way was found which could only have been by adopting a reason. The court reasoned that the words used were "has got jurisdiction" but not "no jurisdiction" in issue 4 therefore the first question had to be answered by the plaintiff while the other by the defendant Since the second was not written therefore onus was correctly placed ''OPP''. This is quibbling with words. Making small and overfine distinctions or what we say is needless hair-splitting. The law is larger than words used in a statute or by judges. The learned trial judge was not dealing with statutory words but words used by a fellow judge in relation to an issue. An issue is always open to change if the need arises to more truly reflect a relevant point in issue with some circumstantial flexibility. This difference in the use of words in a statute and by judges is so succinctly put by the Supreme Court in Haryana Financial Corporation and Another Vs. Jagdamba Oil Mills and Another, . To quote the guiding principle:--

"19... Observations of courts are not to read as Euclid''s theorems nor as provisions of statute. The observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statute. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statute."

Therefore, both the texts in inverted commas have to be read in the context of the case set up by the PSEB that the suit was not maintainable a thing not found in the plaint. The error committed, by the predecessor court was compounded by the impugned order. The onus of such an issue could never be on the plaintiff.

The contested issues framed in this case really should have been as to whether the suit is barred by law. Whether it is barred by law or whether the civil court has got jurisdiction to try the present suit points only to the direction of the defendant but either way both burden and initial onus would fall on the defendant and not the plaintiff and, therefore, the learned trial court fell in error in declining the request and fastening the burden upon the plaintiff.

In order to save the time of the learned trial court after having spent a little while on the case, this Court re-frames issue No. 4 leaving all others as they are. There is another aspect which cannot be ignored after having heard the petitioner is that an issue arises whether the petitioner has alternative statutory remedies under the Indian Electricity Act, 2003 available and whether such remedies bar a civil suit. Both these are necessary to adjudicate as preliminary issues arising in the suit which go to the root of jurisdiction.

Therefore, issue No. 4 is rephrased as under for the convenience of the court:

"Whether the civil suit is barred by law and by the provisions of the Indian Electricity Act, 2003 and the availability of remedies in theft cases before statutory fora barring jurisdiction of civil courts? OPD"

Trial to proceed in the first instance on the basis of this issue to be treated a preliminary issue and finding returned thereon by reference to the provisions of the Indian Electricity Act, 2003 and interpretation thereof in cases of theft of electricity for which no evidence is required to be led by either party except to take on record through formal official witness summoned from the defendant Board the file of the theft case, including notices of theft issued and whether received by the consumer-plaintiff. The learned trial court will keep in mind the provisions of section 139 of the Indian Evidence Act, 1872 that a formal witness called to produce record is not to suffer cross-examination unless called as a witness. The court would only ensure that record produced is from proper public source. Those papers form jurisdictional facts. To decide this purely legal issue the merits of the theft case cannot be looked into unless the civil court has jurisdiction to entertain and decide the claim on merits. This would depend on the findings returned on issue 4 refrained as above. I find no reason to interfere with issue 5 which questions maintainability of suit in its present form. To that extent the prayer is rejected. Onus on this issue will remain fastened on the plaintiff.

Parties be put to notice of the above preliminary issue as framed, for them to know in advance that it will be taken up and heard first for a decision before the other issues are addressed. Learned trial court to act accordingly. Final decision be taken on the two preliminary issues on jurisdictional facts in terms of the aforesaid Act as soon as practicable. Consequently, this petition is accepted. The impugned order is set aside except qua issue S. Learned trial judge to proceed as per directions issued.