Paschim Gujarat Vij Company Limited vs Nirubha Vajesang Jadejai

By way of present appeal, the present appellant, who was original plaintiff in Regular Civil Suit No.53 of 2006 and original appellant in Regular Civil Appeal No.61of 2010, has challenged the judgment and decree passed by the Court below dated 15.02.2007 and 30.06.2012 respectively.

The short facts of the present appeal are as under:

2.1 The original-plaintiff has filed Regular Civil Suit No.53 of 2006 against the opponent/original defendant for recovery of Rs.1,95,006=04 paise from 11.01.2002 for electricity bill, illegally consumed by the original defendant. The learned trial Court after recording evidence on record, dismissed the suit vide judgment and order dated 15.02.2007.

2.2 Being aggrieved and dissatisfied by the same, the original-plaintiff preferred Regular Civil Appeal No.61 of 2010 before the learned 4th Additional District Judge, Jamnagar at Khambhalia and after hearing learned advocate for the appellant and recording evidence, dismissed the appeal vide judgment and order dated 30.06.2012. Hence, this appeal before this Court.

This appeal was admitted by an order dated 20.03.2014. Notice was served to the respondent however, nobody appeared for and on behalf of the respondent before this Court to contest the appeal. Heard learned advocate Mr. Premal Joshi for the appellant. No arguments was advanced by the respondent side.

It is submitted by learned advocate for the appellant that the learned Courts below have committed an error by observing that the Deputy Engineer has not been examined. It is also submitted that to prove the calculation sheet which was produced at Exh.16, Senior Clerk has deposed. It is further submitted that the trial Courts have also committed an error by observing that neither the Engineer nor any other witnesses have been examined to prove the said document. That, trial Courts observations of no member of any checking party or Talati-cum-Mantri of the village were examined to prove the field of the opponent-original defendant is erroneous. That, the legal notice was issued by the plaintiff vide Exh.17 before filing of the suit and therefore, it was not necessary to examine any witness or employee from the postal department to prove that notice was served to the defendant. That, Senior Clerk of the appellant was examined at Exh.14 and he has supported and proved the documents produced on record. That, he was authorized by the appellant/original plaintiff to depose before the trial Court. That, under Section 118 of the Indian Evidence Act, witness examined by the plaintiff was competent to depose before the trial Court. That, documents at Exh.15 was checking list and Exh.16 was ABCD formula established, Exh.17 were the bills produced on record and all the documents are in nature of public documents and therefore, neither the Deputy Engineer nor the person present at the checking time were required to be examined by the plaintiff. It is further submitted that the suit filed by the plaintiff was never controverted/denied by the defendants or the documents produced vide Exh.15 to 17 as remained unchallenged before the Courts below ignoring the provisions of under Section 80 and 114 of the Evidence Act. Hence, it was requested by the learned advocate for the appellant to quash and set aside the judgment and decree passed by the trial Court in Regular Civil Suit No.53 of 2006 dated 15.02.2007 as well as Regular Civil Appeal No.61 of 2010 dated 30.06.2012.

As noted above, though, notice was served to the respondents, nobody has contested the present appeal or appeared before this court. It also appears from the judgment on record that in the suit as well as in Regular Civil Appeal preferred by the original - plaintiff, defendants did not appear to contest the suit as well as the appeal, however, served with the summons/notice.

Having considering the facts of the present case as well as the submissions made by the learned advocate for the appellant, it appears that the plaintiff was supplied electricity to its consumer. The defendant was never the consumer of the plaintiff. The suit was filed by the plaintiff for recovery of an amount of Rs.1,95,006=04 paise from 11.01.2002 on account of theft of electricity consumed by the defendant. Before the learned trial Court, summons was duly served to the defendant, however, defendant chosen not to appear before the trial Court. It appears from the record placed before the Court that certain documents vide Exh.15 to 22 were produced by the plaintiff before the trial Court and witness Hemrajbhai Veljibhai Vishani - Senior Clerk of the appellant/original plaintiff was examined at Exh.14. No documentary as well as oral evidence was produced by the defendant. That, in application at Exh.11, amendment was sought by the plaintiff which was allowed by the Court below and necessary amendment was carried out in the cause title at Exh.14. It appears from the record that the suit was filed under the signature of Deputy Engineer of the plaintiff. Mr. Arvindbhai Dhirubhai Vasava, filed his affidavit in chief examination. As per his evidence, one electric motor having 5HP was installed on Submersible Pump of the defendant. This witness, during the course of examination in chief, has produced checking report vide Exh.15, statement of ABCD formula at Exh.16, electricity bill showing consumption of the electricity by the defendant at Exh.17, legal notice issued by the plaintiff vide Exh.18, acknowledgment receipt under the signature of the defendant vide Exh.19, brief note vide Exh.20, performa bar vide Exh.21 and legal notice issued through advocate earlier vide Exh.22. The oral evidence of the senior clerk namely Hemrajbhai Veljibhai Vishani of the plaintiff was never challenged by the respondent/defendant before the learned trial Court. The learned trial Court on suo-moto was of the opinion that the suit was not filed under the signature of senior clerk by the plaintiff and the said witness was not examined as member of the checking party. No evidence was produced by the plaintiff revealing that submersible pump having electric motor of 5HP was installed and no checking report was prepared by the witness or Rojkam as well as bill were prepared by the plaintiff. It was opinion of the learned trial Court that no witness from the checking party was examined by the plaintiff as well as Deputy Engineer, who has filed the suit. It was observed by the learned trial Judge that the calculation sheet of the electric bill was prepared on the basis of electric motor having 5HP installed on the submersible pump. However, there was no witness examined by the plaintiff, who had seen that the electric motor having 5HP in the board as well as submersible pump was installed by any officer of the plaintiff and thereafter, examined the same, bill was issued by the plaintiff. It was further opinion of the Court below that there was no explanation forwarded by the plaintiff of non examination of any member of the checking party. Surprisingly, after examining senior clerk by the plaintiff, purshish was filed by submitting an application at Exh.23 closing evidence of the plaintiff. As per the opinion of learned trial Judge, witnesses examined by the appellant at Exh.14, senior clerk had no personal knowledge of the incident and no evidence was produced by the appellant authorizing him to depose before the Court below.

That, considering the rules and regulations of power for conducting legal affairs of the appellant, Senior clerk was never authorized to be examined as witness before the trial court. Therefore, the suit was ultimately dismissed by the Court.

If we consider the provision of Section 118 of the Indian Evidence Act, 1872, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Here in the instance case, the Court has never considered that the witness examined by the appellant was enable of understanding of questions put to him or suffering from any disease, bodily or extreme age or his mind. The documents produced by the appellant were in nature of public documents. All the documents produced by the appellant clearly shows that the checking party raided at the place of defendant situated at the field of the defendant where illegal electric consumption was found. Therefore, there was a clear case of electricity theft made by the defendant by joining the cable of 15 meter in the land and attached with the electric motor. The raid was made with the help of postal department officers of the appellant company. At the place of this raid, illegal electric consumption and theft was found by the officers and checking report was prepared under the signature of the officers of the appellant company. The defendant refused to put his sign before the officer produced vide Exh.15. The calculation sheet was prepared which was produced at Exh.16 under the signature of the Engineer and other officers of the appellant company. Total units as well as amount of consumption clearly shown in the document vide Exh.17 i.e. bill prepared by the appellant company. Legal notice was issued to the defendant for recovery of the amount as shown in the bill Exh.17, which was also produced on record as well as acknowledgment slip at Exh.19 under the signature put on behalf of the defendant. It also appears form the record that brief note was also prepared vide Exh.20 calculating the amount of theft power made by the defendant. At Exh.21 performa bar was produced on record under the signature of Deputy Engineer. Another notice through advocate was earlier issued by the appellant on 09.08.2004 produced vide Exh.22 demanding an amount of Rs.1,95,006=04 paise from the defendant, which was also received by the defendant under his signature.

It is pertinent to note that before the learned trial Court, suit as well as appeal were never contested by the defendant however, duly served with the notice/summons. Here also, respondent/defendant has not appeared before this Court to contest this appeal. There would be no necessity of examination of Deputy Engineer who has filed the suit before the trial Court. The checking report at Exh.15, statement of ABCD formula at Exh.16 and the bills at Exh.17 could not be denied for their admission by the Courts below in absence of any challenge by the defendant. The senior clerk examined vide Exh.14 was never challenged by the defendant. All the documents produced by the appellant was supported by the witness who happens to be authorized witness by the appellant.

This Court, under the circumstances of the present case, is of the view that the Courts below have committed an error by dismissing the suit as well as an appeal preferred by the present appellant, and therefore, this appeal requires to be allowed. Accordingly, the present appeal is allowed. The judgments and orders passed by the learned trial Court in Regular Civil Suit No.53 of 2006 dated 15.02.2007 as well as in Regular Civil Appeal No.61 of 2010 dated 30.06.2012 are hereby ordered to be quashed and set aside. Notice is discharged.

Records and Proceedings be sent back to the learned trial Court forthwith.