The Assistant Executive Engineer vs Vishwanath

N. Ananda, J.—This appeal was admitted to consider the following substantial questions of law:

1) Whether the finding of the courts below that the suit is not barred u/s 9 of CPC, having regard to the fact that the plaintiff had already preferred an appeal under the provision of the regulation, is perverse and arbitrary being contrary to law and the material on record?

The facts giving raise to the aforestated substantial question of law are as follows:

The respondent had filed O.S. No. 98/1996 for declaration that he is not liable to pay a sum of Rs. 13,247/- demanded by the appellant by its letter dated 14.03.1996. Incidentally, it is necessary to state that aforestated amount was claimed by appellant towards back billing charges and charges for abstraction of electric energy by the respondent.

The respondent had preferred an appeal against the aforestated demand. Later, he had abandoned the appeal and filed O.S. No. 98/1996.

The appellant had raised the question of maintainability before the trial court as also before the I-appellate court. Both the courts have held that the suit is maintainable.

In RSA 169/2000 dated 01.04.2009, a Division Bench of this court following the judgment of Supreme Court in the case of Punjab State Electricity Board and Another Vs. Ashwani Kumar, has held that Section 9 CPC, is not applicable when statutory rights and remedies are available.

The Division Bench/has held that in view of Regulation 46 of the Karnataka Electricity (Supply) Regulations, 1988, a civil suit is not maintainable to challenge the back billing. In the ultimate analysis, the Division Bench has held that a party aggrieved by back billing has to file an appeal under Regulation 46 of the Karnataka Electricity (Supply) Regulations, 1988.

In the case on hand, respondent had filed an appeal and he had abandoned the appeal. In view of the judgment rendered by Division Bench of this court in RSA 169/2000 dated 01.04.2009, the court below did not have jurisdiction to try the suit. The respondent (plaintiff) had remedy of appeal under Regulation 46 of the Karnataka Electricity (Supply) Regulations, 1988.

In RSA 169/2000 dated 01.04.2009 this court has dismissed the suit however, giving liberty to the respondent (plaintiff) to file an appeal before the Appellate Authority within two months from the date of judgment. It is further observed that if such an appeal is filed, the Appellate Authority shall consider the appeal without raising the question of limitation.

In view of what has been held in RSA 169/2000 dated 01.04.2009, the substantial question of law is answered against the plaintiff.

In the result, I pass the following:

ORDER

The appeal is accepted. The impugned judgment is set aside. The respondent (plaintiff) is permitted to withdraw the suit in O.S. No. 98/1996 on the file of Civil Judge at Yadgir. If the respondent (plaintiff) desires, he can file an appeal before the Appellate Authority within two months from today. If such an appeal is filed, the Appellate Authority shall consider the appeal without raising the question of limitation.