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Judgment
Thomas P. Joseph, J.—Heard. Appeal is admitted on the following substantial questions of law.
(i) Whether the courts below have erred in deciding the issue on maintainability of the suit in view of Sec.145 of the Electricity Act, 2003?
(ii) Are the appellants entitled to recover the charges of energy actually consumed by the respondent which left unrecorded by the meter, as per Regulation 33(5) of the Kerala State Electricity Board Terms and Conditions of Supply?
(iii) Whether the courts below are right in allowing the above original suit and dismissing the above appeal suit?
(iv) Whether the District Court is right in dismissing the petition to condone the delay in filing the above suit?
Since in view of the substantial questions of law I am required to decide in this appeal, it is unnecessary to call for records of the case, calling for records is dispensed with.
Respondent filed O.S. No. 34 of 2002 in the court of learned Munsiff, Changanacherry for declaration and prohibitory injunction against realisation of Rs. 65,565/- as per bill dated 10.11.2006. Trial court granted a decree in favour of respondent which appellants challenged in A.S. No. 192 of 2008. As there was a delay of 200 days in filing the appeal, they filed I.A. No. 1288 of 2008 to condone that delay. That application did not find favour with the learned Additional District Judge. Application was dismissed and consequently the appeal was dismissed as time barred. Hence this Second Appeal.
Learned counsel for appellants contends that serious issues are raised in the memorandum of appeal before the learned Additional District Judge, including the very maintainability of the suit in view of Sec.145 of the Indian Electricity Act. In view of the circumstances stated in the affidavit in support of I.A. No. 1288 of 2008, learned Additional District Judge ought to have condoned the delay, it is contended.
Learned counsel for respondent contended that dismissal of I.A. No. 1288 of 2008 is justified as there is no proper explanation for the delay.
I am given copy of affidavit filed by the appellants in support of I.A. No. 1288 of 2008. In the affidavit sworn by the second appellant, it is stated that the file relating to the suit was kept in the office of the first appellant at Thiruvananthapuram, that file was misplaced in the office and it could not be traced out without delay. Delay was caused not due to any willful laches on the part of appellants but on account of the above circumstances.
Having heard learned counsel on both sides and considering the contentions urged in the appeal before learned Additional District Judge and also the circumstances stated by the second appellant in the affidavit in support of the application to condone the delay, I am inclined to think that sufficient cause is shown for the delay. There is no reason to think that delay is willfully caused. Appellants did not also stand to gain by causing the delay in filing the appeal. In the circumstances delay could have been condoned on terms. Substantial question of law No. (iv) framed is answered accordingly. Other questions are left open. Resultantly, Second Appeal is allowed as under:
(i) The order on I.A. No. 1288 of 2008 is set aside, judgment and decree in A.S. No. 192 of 2008 of the court of learned Additional District Judge, Kottayam will stand set aside and I.A. No. 1288 of 2008 will stand allowed and A.S. No. 192 of 2008 remitted to the court of learned Additional District Judge, Kottayam for consideration under Order XLI Rule 11 of the CPC on condition that appellants pay to the respondent/deposit in this Court for such payment Rs. 1,500/- (Rupees One thousand and five hundred only) by way of costs before 22.05.2012.
(ii) On such payment/deposit A.S. No. 192 of 2008 will stand remitted to the court of learned Additional District Judge, Kottayam as above stated for consideration under Rule 11 of Order XLI of the Code.
(iii) On compliance of the above condition, parties shall appear in the court of learned Additional District Judge, Kottayam on 28.05.2102.
(iv) It is made clear that if the condition for payment/deposit of costs is not complied, this appeal will stand dismissed in confirmation of the order/judgment in A.S. No. 192 of 2008.