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Judgment
V. Kanagaraj, J.—The defendant in the suit in O.S. No. 21 of 2000 on the file of the court of II Additional District Munsif, Dindigul has filed
the above Civil Revision Petition against the order dated 31.3.2000 made in I.A. No. 15 of 2000 in the above suit, thereby allowing the said
petition filed by the respondent herein under Order 26, Rule 9 and Section 151 of the CPC seeking to appoint an Advocate-Commissioner to test
the defective ''meter and the wiring connection in between the points of supply and the meter with the assistance of the technically qualified
chartered Electrical Engineer with necessary equipments to test and to submit a report with the technical report of the chartered Electrical Engineer.
Tracing the facts of the petition, it comes to be known that the respondent herein has filed the suit in O.S. No. 21 of 2000 before the lower Court
for declaration that the plaintiff has raised a bona fide dispute with regard to the defective functioning of the meter in HTSC 197 DEDC, Dindigul
and that the defendant cannot raise any bill of demand based on the readings recorded in such a defective meter and that the bill of demand dated
29.12.1999 raised by the defendant for December 1999 for the said connection is arbitrary, unlawful and void and a consequential permanent
injunction restraining the defendant and his subordinates form in future, raising bills on the basis of the readings recorded therein and from
disconnecting the electricity supply for nonpayment of the said bill. Pending disposal of the said suit, the respondent/plaintiff has filed the petition in
I.A. No. 15 of 2001 with the said prayer.
This petition would be opposed by the defendant, Electricity Board on grounds such as that the petition is not maintainable nor is the petitioner
entitled to any relief sought for in the application; that as per the procedures established by law, the petitioner, instead of filing the suit, should have
filed an appeal before the statutory authorities on payment of the bills; that the trial Court has no jurisdiction to entertain the suit and the application;
that the meter was fixed on 9.2.1998 after thorough checkup and on terms, conditions; that in case, the petitioner suspects any defect, for
inspecting the same, he should have filed the application to the authorities concerned bearing the expenses involved in such inspection; that only to
refrain from payment of bills, the suit has been filed; that from the date of inspection of the meter, till date, no complaint was lodged by the
petitioner; that since he did not pay the bills to the tune of Rs. 2,98,655/- on 13.1.1999, the supply was disconnected and then the plaintiff has
come forward to institute the suit; that pursuant to the order of the City Civil Court, Chennai in a suit filed by the petitioner/plaintiff for restoration
of electricity supply, the service was reconnected on 14.12.1999 and the said suit is still pending. On such and other grounds, the Electricity Board
would stiffly oppose the petition filed by the plaintiff, further generally denying all the allegations therein.
The Court below, in consideration of the pleadings by parties and upon hearing the counsel for both, would conclude allowing the application for
the appointment of the Advocate-Commissioner further fixing the time for seeking the assistance of an expert. Aggrieved, the defendant/Tamil
Nadu Electricity Board has come forward to file the above Civil Revision Petition on certain grounds as brought forth in the grounds of revision.
Today, when the above Civil Revision Petition has been taken up for consideration, the learned counsel appearing on behalf of the petitioner
was alone present and argued his case. Neither the respondent nor his counsel appeared to argue their part of the case and hence this court is left
with no option but to decide the above matter in consideration of the pleadings by parties and having regard to the materials placed on record and
upon hearing the learned counsel for the petitioner.
The learned counsel for the petitioner/Tamil Nadu Electricity Board would point out that what the lower Court has done allowing the application
appointing the Advocate-Commission is totally wrong since in these circumstances, a statutory remedy lies u/s 26(6) of the Indian Electricity Act
and without exhausting the said remedy, the defendant has wrongly filed the application before the lower court for the appointment of the
Advocate-Commissioner and no such commission could be appointed without following the procedures established by law and therefore would
request the court to set aside the lower court''s order.
Since it is the legal position embodied in the Indian Electricity Act, it is relevant to extract Section 26(6) of the Indian Electricity Act.
Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon
the application of either party, by an Electrical Inspector, and where the meter has, in the opinion of such Inspector ceased to be correct, such
Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time'' not
exceeding six months as the meter shall not, in the opinion of such Inspector, have been correct, but save as aforesaid the register of the meter shall
in the absence of fraud, be conclusive proof of such amount or quantity;
PROVIDED that either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less
than seven days notice of his intention so to do.
When the procedure that is to be followed in case of a dispute regarding the correctness of the meter has been laid down by law, it is not only
unnecessary but unwarranted as well on the part of the Court to indulge in exercises such as appointing the Advocate-Commissioner and,
therefore, the lower Court should have directed the respondent/plaintiff to seek the remedy u/s 26(6)of the Indian Electricity Act Straightaway
dismissing the application for the appointment of the Advocate-Commissioner rejecting the reasons assigned in the petition. Since the order of the
Court below has not been made in the manner expected by law, but in total ignorance of the appropriate provision of law covering the subject the
fair and decretal order passed by the lower court becomes only liable to be set aside.
In result,
(i) the above Civil Revision Petition succeeds and the same is allowed.
(ii) The fair and decretal order dated 31.3.2000 made in I.A. No. 15 of 2000 in O.S. No. 21 of 2000 by the Court of II Additional District
Munsif, Dindigul is hereby set aside.
(iii) The petition in I.A. No. 15 of 2000 in O.S. No. 21 of 2000 on the file of the Court of II Additional District Munsif, Dindigul shall stand
dismissed.
However in the circumstances of the case, there shall be no order as to costs.
Consequently C.M.P. No. 6473 of 2000 is also dismissed.