CAV Judgment

1. The learned 3rd Senior Civil Judge, Bharuch by its impugned judgment and decree dated 18.11.2003 decided Special Civil Suit No.150 of 1997 filed by erstwhile Gujarat Electricity Board (for short, 'G.E.B') and now Dakshin Gujarat Vij Company Limited (for short, 'DGVCL') and Special Civil Suit No.195 of 1994 filed by M/s. Garrison Polysacks Private Limited (for short, 'the Company') by common judgment and decree, whereby the former suit was dismissed and latter was decreed. The supplementary bill issued by the DGVCL in tune of Rs.8,37,153.14/- is declared arbitrarily illegal and void and the suit for recovery of the said supplementary bill is dismissed.

2. The aforesaid captioned appeals have been preferred by DGVCL under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') to question the legality and merit of the impugned judgment and decree. In view of that, I propose to decide the captioned appeals by this common judgment.

3. Facts of the case are as follow:

          3.1 M/s. Garrison Polysacks Private Limited (for short, 'the Company') urged DGVCL to release the electricity connection.

          Consequently, the DGVCL (erstwhile 'G.E.B') released the electricity connection in favour of the complainant on 1 st January, 1992 for customer no.1039. This electricity connection was listed under the rules and regulations of the erstwhile G.E.B and on 21st April, 1994, the surveillance squad of G.E.B had made surprise checking at the Company's electrical installation and tested the electricity meter installed at the Company's premises with trivkometer and subsequent thereto prepared a checking report E-0405 and E-0443. The electricity company found that the electricity meter installed at the Company's premises was running slow. Thus, the L.T. meter was installed on 4th July, 1994 to check the slowness of the meter. Then, subsequently on 7th July, 1994, HT and LT installations were checked by the checking squad and found that the electricity meter installed at the premises of the Company was running slow by 48.56%. Pursuant to which a Rojkam was prepared on the spot whereby, according to G.E.B - DGVCL, the authorized officer of the company refused to sign.

          3.2 G.E.B - DGVCL, after preparing the aforesaid Rojkam and a report, issued a supplementary bill for the period commencing from January 1993 to June 1994 on 29.09.1994 in tune of Rs.8,37,153.14/- for a recovery of the electricity loss which was not recorded in the electricity meter, due to slowness of meter to the tune of 48.56%.

          3.3 The Company having received this supplementary bill filed Special Civil Suit No.195 of 1994 against the G.E.B - DGVCL in the Court of Senior Civil Judge, Bharuch for the relief of permanent injunction restraining the G.E.B - DGVCL from disconnecting the electricity connection. An application for interim injunction was moved whereby the learned Civil Judge, Senior Division directed the Company to deposit 45% amount of supplementary bill and upon fulfilling such condition, restrained the G.E.B - DGVCL from disconnecting the electricity connection. The Company in three installments totallys deposited Rs.3,76,723/-, which was given set off by the G.E.B - DGVCL and thereafter, G.E.B - DGVCL filed Civil Suit No.150 of 1997 for recovery of the remaining amount of Rs.4,60,430.14/- with interest.

          3.4 A Special Civil Suit No.195 of 1994 filed by the Company and Special Civil Suit No.150 of 1997 filed by the G.E.B - DGVCL were tagged together and decided by a common judgment. The entire evidence was recorded in Special Civil Suit No.150 of 1997.

          3.5 In a Special Civil Suit No.195 of 1994, the Company had challenged the supplementary bill issued by the G.E.B - DGVCL on the ground that the electrical meter and all apparatus are belonging to the electricity company. Therefore, even if the electricity meter runs slow, it is not an obligation of the Company to pay electric energy charges. G.E.B - DGVCL is in default. It has installed defective CTPT and checking meter and therefore, if any loss is sustained by the G.E.B - DGVCL, same cannot be reasoned to disconnect the electricity connection. Upon this contention, the Company has filed the suit for permanent injunction restraining the G.E.B - DGVCL from disconnecting the electricity connection.

          3.6 In both the suit, issues were framed separately but common evidence was led and ultimately, by a common judgment, the suit filed by the Company was decreed and suit filed by the G.E.B - DGVCL was rejected.

4. In the impugned judgment passed by the learned 3 rd Joint Senior Civil Judge, Bharuch dated 18.11.2003, the following final order was passed:

          "- The plaintiff-board Special Civil Suit No.150 of 1997 is rejected with costs.

          - The defendant/plaintiff-co. Special Civil Suit No.195 of 1994 is hereby decreed.

          - It is hereby declared that the bill issued by the plaintiff-board Rs.8,37,153.14ps is arbitrary, illegal and void.

          - It is also hereby directed that the plaintiff-board their servants, engineers and agents are hereby restrained from disconnecting the electricity connection of the defendant-company.

          - Considering the facts and circumstances of the case, the defendant- board bear the costs of the plaintiff- company and shall bear their own."

5. Being aggrieved, G.E.B - DGVCL had filed the captioned appeals.

6. Learned Advocate Mr. Chinmay Gandhi argued for G.E.B - DGVCL and learned Advocate Mr. Chaitanya Joshi argued for the Company. In addition to the oral arguments, learned Advocate Mr. Chinmay Gandhi has also placed on record the written submission with list of facts and events etc, which is also taken on record.

          6.1 The submission of learned Advocate Mr. Chinmay Gandhi is summarized as under:

          (i) That the learned trial Court had committed a serious error in passing the impugned judgment dismissing the suit of the G.E.B - DGVCL and granting decree in favour of the complainant;

          (ii) That the learned trial Court had committed serious error in declaring the supplementary bill issued by the G.E.B - DGVCL as arbitrarily illegal and void, more particularly, in-absentia of relief claimed by the Company;

          (iii) That the Company in its civil suit ask the relief for permanent injunction only, yet the learned trial Court granted that relief not prayed by the Company and thereby, manifestly erred;

          (iv) That the slowness of the meter was following from the difference in CTPT. Therefore, it was not exactly a case under Section 26(6) of the Indian Electricity Act (for short, 'the Act') that the learned trial Court mainly referred to Section 26(6) of the Act to held that slowness of the meter can only be determined by the Electrical Inspector and not by the electricity company;

          (v) That the learned trial Court committed a serious error in ignoring that the Company at no point of time had questioned issuance of the supplementary bill by the electricity company based upon 48.56% meter running slowly and yet the learned Court below has dismissed the suit of the G.E.B - DGVCL on the ground that the electricity company cannot decided the supplementary bill on the ground of slowness of the meter.

          (vi) That the learned trial Court did not consider that during the suit proceedings, G.E.B - DGVCL had preferred application under Order 26 Rule 10A of the CPC to refer the matter to the Electrical Inspector for scientific analysis, however, the learned trial Court rejected this application and ultimately also rejected the suit on the ground that the electricity company had not carried out any action to take the decision of slowness from the Electrical Inspector thereby G.E.B - DGVCL suffered double jeopardy.

          (vii) That otherwise learned trial Court has committed serious error in rejecting the documentary evidence and oral evidence produced by the DGVCL.

          6.2 Mainly upon above arguments, learned Advocate Mr. Chinmay Gandhi submitted to allow captioned appeals, quash and set aside impugned judgment and further to allow the suit filed by the G.E.B - DGVCL and to dismiss the suit filed by the Company.

          6.3 In support of his submissions, learned Advocate Mr. Chinmay Gandhi relied upon the judgment of the Hon'ble Supreme in the case of Belwal Spinning Mills Limited vs. Uttar Pradesh State Electricity Board, reported in AIR 1997 SCC 2793 as well as in case of Tata Hydro-electric Power Supply Company Limited vs. Union of India, reported in AIR 2003 SCC 1585.

7. Per contra, learned Advocate Mr. Chaitanya Joshi representing the Company supporting the impugned judgment mainly argued that the decision of the slowness of the meter can only be taken up by the Electricity Inspector in view of the mandatory provision under Section 26(6) of the Act. He would further submit that in the present case, electricity company on its own decided the slowness of the meter and further held that slowness of the meter was the resultant effect of the CTPT, electricity meter as running slow 48.56% as against it should run 100%.

          7.1 Relying heavily upon Section 26(6) of the Act, it is sought to be submitted that if electricity company intend to decide that the electricity meter was running slow and supplementary bill was required to be issued for slow running of the meter and less consumption of the electricity, the electricity company was needed to make an application to the Electrical Inspector and it is only the Electrical Inspector who has power to decide that whether meter cease to be correct and for such finding he alone has power to estimate the amount of energy supplied to the consumer or electrical quantity contending supply during such time but not exceeding six months.

          7.2 Learned Advocate Mr. Chaitanya Joshi refers to the judgment of Division Bench of this Court in the case of GEB (NOW UTTAR GUJARAT VIJ CO.LTD) vs. NIRMA PVT. LTD, First Appeal No.1113 of 2004 as well as judgment of the Hon'ble Supreme Court in the case of Belwal Spinning Mills Limited (supra) and submitted that the slowness of the meter can only be decided by the Electrical Inspector is no more res integra in view of these two judgments and therefore, the estimation in form of supplementary bill by electricity company for energy supplied through the electric meter allegedly running slow has rightly been discarded by the learned trial Court. He would further submit that Section 26(6) of the Act creates exclusive jurisdiction to Electrical Inspector decided in dispute regarding any defect in the matter when allegations of slowness of the meter is leveled.

           7.3 In the light of the aforesaid submission, learned Advocate Mr. Chaitanya Joshi submitted to dismiss both the appeals and to confirm the impugned judgment.

8. This Court has heard learned Advocates appearing for both the sides extensively and also perused the record and proceedings and applied its mind.

9. At the outset, let me say that the moot question in dispute is that whether the learned trial Court committed an error in granting a declaratory decree to declare the supplementary bill as arbitrarily illegal and void, in-absentia of relief claimed in Special Civil Suit No.195 of 1994? And secondly, whether the learned trial Court misread the record and proceeding of the Special Civil Suit No.150 of 1997 and wrongly believed application of Section 26(6) of the Act?

          9.1 In Special Civil Suit No.195 of 1994 filed by the Company, following relief has been prayed in para 10(A):

          "Be declared that the defendants themselves or their agents, engineers, employees etc be restrained from discontinuing the electricity connection as mentioned in para 2 of the complaint and further restrain to disturb the electricity connection used by the complainant in his factory."

10. Thus, it is noticeable that the platiniff has asked simple relief of perpetual injunction in the aforesaid suit. No declaratory relief has been asked by the plaintiff-company. The operative order of the common judgment is reproduced hereinabove. In black and blue, it display that the learned trial Court while decreeing the Special Civil Suit No.195 of 1994 passed the order in decree to declare the supplementary bill of Rs.8,37,153.14/- as arbitrarily illegal and void. This is the finding which according to this Court passed in excess of relief claimed in suit. At the cost of repetition, it is to be noticed that the plaintiff has asked the relief only for perpetual injunction, that the electricity company be restrained from disconnecting electricity connection. The learned trial Court in addition to granting of perpetual injunction, also granted declaratory decree and declared the supplementary bill as arbitrarily illegal and void.

11. In the case of Mrs. Akella Lalitha vs. Sri Konda Hanumantha Rao and Anr., reported in 2022 live law SC 638 , the Hon'ble Supreme Court dwelled upon the principle that the relief not found on pleading should not be granted and if Court consider to grant a relief not prayed by the plaintiff and the grant of prayer not pleaded in the pleading would deprive the respondent of an opportunity, oppose or resist such relief, it would tantamount to miscarriage of justice. The Hon'ble Supreme Court in the relevant paragraphs at 15, 16 and 17 in the case of Mrs. Akella Lalitha (supra) held as under:

          ..."15. Coming to address the second issue, while this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/son of respondents. It is settled law that relief not found on pleadings should not be granted. If a court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.

          16. In the case of Messrs. Trojan & Co. Ltd. vs. Rm.N.N. Nagappa Chettiar reported in AIR 1953 SC 235, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:

          "It is well settled that the decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

          17. In the case of Bharat Amratlal Kothari & Anr. vs. Dosukhan Samadkhan Sindhi & Ors. reported in AIR 2010 SC 475 held:

          "Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."...

12. In view of the above, no hesitance arise for this Court to held that the learned trial Court committed serious and manifest error in granting a decree to declare the supplementary bill as arbitrarily illegal and void. This prayer was never prayed by the plaintiff and the grant thereof by the learned trial Court is a complete miscarriage of justice.

13. Now the question arises that whether learned trial Court committed a serious error in dismissing the suit filed by the G.E.B - DGVCL for recovery of the supplementary bill on the ground that electricity company has not followed the mandatory provision of Section 26(6) of the Act and issued a supplementary bill in defiance of exclusive jurisdiction of the Electricity Inspector to quantify the loss of energy supplied through defective or a meter running slow. Let me refer to Section 26(6) of the Act, which reads as under:

          "26. Meters.

          (1) ... xxx

          (2) ... xxx

          (3) ... xxx

          (4) ... xxx

          (5) ... xxx

          (6) 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 the 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 before 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.] (7) ... xxx"

14. At this juncture, findings and observations of the Hon'ble Supreme Court in Belwal Spinning Mills Limited (supra) is worthy and requires to reproduce, which reads as under :

          ..."45. Sub-section (1) of Section 26 provides that in the absence of any agreement to the contrary, the amount of energy supplied to a consumer or the electric quantity contained in the supply, shall be ascertained by means of a correct meter. Sub-sections (2), (3) and (4) of Section 26 provide for the inter-se rights and duties of the consumer and the licensee to keep the meter and other apparatus necessary for recording the consumption of electricity by the consumer in good condition and for such purpose the licensee has been clothed with the power to enter the premises of the consumer for testing, checking, maintaining etc. the meter and other apparatus and for repairing and altering the same if needed. Explanation to sub- sec. (7) of Section 26 provides that "a meter shall be deemed to be 'correct' if it registers the amount of energy supplied or the electrical quantity contained in the supply within the prescribed limits of error and a maximum demand indicator or other apparatus referred to in sub-sec. (7) shall be deemed to be correct if it complies with such conditions as may be prescribed in the case of any indicator or other apparatus."

          46. Sub-section (6) of Section 26 provides that in case of any difference or dispute as to whether any meter referred to in sub- sec. (1) is or is not correct, the matter shall be decided upon the application of either party, by Electrical Inspector. It also provides that on a finding that meter ceased to be correct, the Electrical Inspector has to make an estimate of consumption of electricity during the statutory period as referred to in sub-sec. (6) of Section 26. What is the statutory period for which estimation is to be made by the Electrical Inspector has already been indicated. Sub-section (6) of Section 26 also provides that save as aforesaid, namely estimation of consumption of electricity by the Electrical Inspector for the statutory period, "the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity.

          (Emphasis added)

          47. On a conjoint reading of various sub- sections of Section 26 of the Electricity Act, it is evident that consumption of electricity or electrical quantity in the supply, shall be ascertained by means of a correct meter and the meter and other apparatus for recording the consumption of electricity by a consumer will be deemed to be correct if the recording is within the permissible limit of error as prescribed. if a dispute as to the correctness of the meter is raised by any party for reference, such dispute can be decided only by the Electrical Inspector and both the licensee and the consumer have to accept the estimate of supply of electricity to the consumer as may be determined by the Electrical Inspector for the statutory period referred to in sub-sec. (6) of Section 26.

          48. Although the licensee is clothed with the power to maintain a correct meter installed at the premises of the consumer and for such purpose can enter the premises of the consumer and the licensee can also repair or alter the meter and other electrical apparatus if found defective on checking or testing by the licensee, but if the dispute as to the correct status of the meter or other electrical apparatus is raised either by the licensee or by the consumer by making reference to the Electrical Inspector under sub-sec. (6) of Section 26, then such dispute can be determined only by the Electrical Inspector and the meter or apparatus cannot also be changed by the licensee unless the dispute is resolved by the Electrical Inspector. If there is a dispute as to the proper functioning of the meter or check meter or other electrical apparatus under sub-sec. (6) of Section 26, the Electrical Inspector upon entering the reference would determine the dispute as to the proper functioning of the meter and other electrical apparatus and in the event the Electrical Inspector comes to the finding that the meter ceased to be correct, he is to determine the quantum of the electricity consumed during the statutory period referred to in sub-sec. (6) but for any other period anterior to the statutory period, the legislature, in no uncertain term, has indicated in the latter part of sub-sec. (6) of Section 26 that reading registered in the disputed meter will not only be presumed to be correct but such reading shall be conclusive proof of the quantity of electricity consumed or the amount of electricity supplied to the consumer provided no fraud has been practised by the consumer. In appreciating the intention of the legislature, the provision for treating the recording of the disputed meter to be the conclusive proof of the amount of quantity supplied to the consumer in the absence of fraud where a dispute is raised by either of the party about the functioning of the meter, cannot be overlooked. Sub- section (6) has been amended and the legislature has introduced a conscious departure by deleting the requirement of assessing the quantity of electricity consumed for the entire period during which the Electrical Inspector or the competent authority was of the opinion that the meter had ceased to be correct. In our view by limiting the period for estimation to be made by the Electrical Inspector by the amendment of sub-sec. (6) and further providing that for the anterior period, in the absence of fraud, the register of the meter shall be conclusive proof of the supply of the electricity it is quite evident that even if it transpires that the installed meter ceased to be correct, then for the period anterior to the statutory period for which the estimation is not to be made by the Electrical Inspector, the register of the meter about the consumption of the electricity supplied to the consumer shall be binding between the parties by treating such recording as conclusive proof of the consumption in the absence of any fraud practised by the consumer. By the amendment of sub-sec. (6) the Electrical Inspector has been purposely absolved from the duty to determine as to from which point of time beyond the said statutory period, the meter had ceased to function so that for such entire period, the estimation of the supply of electricity need not be made. Such amendment of sub- sec. (6), in our view, only means that beyond the statutory period, in the event of dispute between the parties as to the proper functioning of the meter and other electrical apparatus, the consumer has liability to pay the estimated amount indicated by the Electrical Inspector limiting the estimate upto the statutory period and not beyond that but for the other anterior period the consumer is required to pay according to the consumption of electricity registered in the disputed meter provided there is no fraud practised by the consumer because dispute of such anterior period remains unresolved by the change introduced by the amendment.

          49. Such legislative change by the amendment of sub-sec. 6 of Section 26, in our view, has been introduced to set at rest any dispute between the licensee and the consumer about the actual consumption of the quantity of electricity by the consumer where no fraud has been practised by the consumer for all other period anterior to statutory period for estimation. There is good reason for such legislative change because it may not be possible to precisely determine exactly from which point of time the meter ceased to be correct. The scheme under the Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer so that consumption of electricity is computed on the basis of reading in the meter. The scheme also reveals that unilateral decision of either of the parties about the correct status of the meter is not to be accepted by the other party if the other party raises objection as to the status of the meter. Whenever both parties do not accept a meter to be correct and the dispute is raised, such dispute is got to be resolved by referring to a statutory authority under Section 26(6), namely, the Electrical Inspector. Within the integrated scheme under Section 26 of the Electricity Act, it is not possible that even though dispute is raised about the mal functioning of the meter such dispute will be treated as statutorily resolved for a limited period in accordance with the amended sub-sec. (6) of Section 26 but for other period anterior to the same, the dispute will remain unresolved and claim of the licensee be open to be challenged. Therefore, simply on the finding that meter had ceased to be correct by the Electrical Inspector on entering the reference a licensee may not be justified in contending that a particular meter had ceased to be correct from a particular point of time even though the licensee, despite its statutory duty to maintain the correct meter by repairing or rectifying the defective meter and by replacing it if necessary has failed to take appropriate step. Both Mr. Sen and the learned Solicitor General in their fairness, have submitted that beyond the statutory period for which no estimation for the consumption of electricity is to be made by the Electrical Inspector attaching statutory finality to such estimation, although the licensee is not precluded from raising revised claim for other period anterior to the statutory period of estimation but such claim will be open to be challenged by the consumer. In our view by the amendment of sub-sec. (6) of Section 26, the Legislature has intended to put an end of such contest between the licensee and the consumer and has set at rest of any dispute relating to any period anterior to the statutory period of estimation by providing that in a case of dispute as to functioning of meter, the reading in the meter for the period beyond the period of statutory estimation, will be final.

          50. As in none of these appeals, there is any allegation that the concerned consumer had practised fraud or had tampered with the meter or other electrical apparatus provided for recording the supply of electricity to the consumer, the consumer will be entitled to the statutory protection of correctness of the recording of the consumption or supply of electricity consumed in the meter/check meter as conclusive proof of such amount of quantity of electricity consumed for all the period anterior to statutory period of estimation under Section 26(6) of the Act because admittedly there is dispute as to the proper functioning of the meter and check meter installed at the premises of the consumer.

          51. In the result, Civil Appeals Nos. 2538 of 1985 and 1571 of 1987 preferred by the Municipal Corporation of Greater Bombay and Civil Appeal No. 1255 of 1986 are dismissed without any order as to cost. Civil Appeal Nos, arising out of S.LP. Nos. 5262-64 of 1992 are allowed by setting aside the common Judgement dated 19.02.1992 passed by the Allahabad High Court in three Writ Petitions, namely, Writ Petitions Nos. 10379 of 1988, 16723 of 1988 and 16325 of 1990, D/- 19.2.1992 (All) reversed and also the interim order dated 10.03.1992 passed in the Writ Petition No. nil filed by the appellant M/s. Belwal Spinning Mills Ltd. in the Allahabad High Court on 9.03.1992. As both the original meter and the check meter installed by the U.P. State Electricity Board in the premises of the appellant M/s. Belwal Spinning Mills Ltd. were found to be defective by the Electrical Inspector the appellant has the liability to pay for the estimated amount as determined by the Electrical Inspector under Section 26 (6) of the Electricity Act for the statutory period under Section 26(6) but for the earlier period, the appellant has the liability only to pay on the basis of reading in the installed meter/check meter in view of the statutory protection of conclusive proof of consumption of electricity for such period on the basis of reading in the meter. The respondent U P. State Electricity Board will be precluded from raising any demand contrary to the aforesaid liability of the appellant and consequently will not be entitled to disconnect the electricity in the premises of the appellant for non- payment for the consumption of electricity for any period earlier than the statutory period beyond the quantity registered by the installed meter. It is, however, made clear that it will be open for the U. P. State Electricity Board to raise bills and demand payments for the period subsequent to the statutory period and to take consequential action for non- payment of bills for such period on the basis of correct reading in the meter or meters in the light of the finding of the Electrical Inspector until any new meter is installed Civil Appeal arising from SLP Nos. 5262-64 of 1992 are accordingly disposed of without any order as to costs."...

15. Coming back to the case on hand, apt to note that no allegation has been made against the Company that it has practiced fraud or had tempered the meter or other electrical apparatus provided for reckoning the supply of electricity to the consumer. There is no cavil that the statutory provision available under Section 26(6) of the Act does not authorize electricity company to quantify electricity charges for slow running of meter. It only falls in the exclusive domain of the Electrical Inspector to decide the slowness of the meter as well as the estimation of the electricity supplied. It is in this statutory background, if we examine the pleading as well as evidence on record, it is noticeable that the Company who has filed the civil suit for perpetual injunction being Special Civil Suit No.195 of 1994 did not plead for cancellation of the supplementary bill on the ground that the electricity company has no authority to issue supplementary bill on the basis of slowness of the meter.

          15.1 It is highly surprising that though the Company was served with the supplementary bill but at no point of time raised question that the electricity company cannot issue supplementary bill on the basis of slow running of electricity meter and further claimed that to do so, is only within the exclusive domain of the Electrical Inspector.

           15.2 The electricity company by adopting the procedure of installing the parallel LT meter, obtained the result of slowness of the meter to the tune of 48.50% and consequently, issued a supplementary bill. The Company asked the relief of perpetual injunction and did not question the legality or propriety of issuance of the supplementary bill.

          15.3 In Special Civil Suit No.150 of 1997 filed by the G.E.B - DGVCL, the Company had filed an application Exh.22 to reject the plaint under Order 7 Rule 11(a) of the CPC mainly contending the grounds that it is mandatory to refer the meter to Electrical Inspector to decide its slowness and further to quantify the supply of the electricity, till then no real cause of action arise to file the suit. The then learned Senior Civil Judge, who was conducting the proceeding of Civil Suit, rejected this application by an order dated 12.02.2002 by ascribing the following reasons :

          ..."I have gone through the plaint and contentions made therein. From the third paragraph of the plaint, it becomes clear that the flow was there in the C.T.P.T.. The said flow has caused the meter to have been slowed down in registering the energy consumed by the consumer, that is defect therein. The plaintiff opponent has further submitted that therefore, in this suit, the question of correctness or incorrectness of the meter is involved, so that meter was required to be compulsorily sent to the Electrical Inspector for inspecting the same. This is not done. Moreover the supplementary bill can only be issued if meter is being checked and found incorrect and it is established that the meter was being slowed in registering the energy used by the defendant herein. Therefore non- resorting to the provision of section 26 (6) of the Indian Electricity Act stops a cause of action coming into being. Hence the plaint does not disclose a cause of action. But this line of argument of the defendant applicant herein is not tenable as direct question of correctness or in-correctness of the meter does not arisen in this case, for the plaint specifically states that the slowness of the meter was the resultant effect of the defect in C.T.P.T.. If we look from this standpoint than this case would not fall within the purview of the section 26 (6) of the Indian Electricity Act only and it cannot be said that the cause of action does not arisen in this case only because the plaintiff opponent did not approach the Electrical Inspector with this question. Moreover after going through the plaint it simply clear that the plaint discloses the cause of action to file the present suit."...

          15.4 Thus, it is a finding of the learned Senior Civil Court who has tried the suit that the slowness of the meter was the resultant effect in CTPT and thereby the case would not fall within the purview of Section 26(6) of the Act. The plaintiff - G.E.B - DGVCL thereafter preferred two applications, one at Exh.17 and another at Exh.26 to refer the subject meter to Electricity Inspector for the determination of the slowness of the meter. This time, learned Court come out with different mood and declined to refer the electricity meter to Electricity Inspector for determination of the slowness of the meter.

          15.5 Order in one of the petition was challenged before this High Court by way of Special Civil Application. However, before Special Civil Application could decide, the suit proceedings were culminated and therefore, Special Civil Application had become infructuous.

16. The deposition of the Deputy General Manager of the Company at Exh.46 as DW1 becomes relevant in the aforesaid background. In cross-examination, he had admitted that the electrical meter installed in the connection of the Company's premises had been checked in presence of the officer of the Company. He has further admitted that at the time of checking, the officers of the Company were present and did not raise any objection that the electricity meter cannot be examined in absence of Electrical Inspector for cause of deciding slowness of the meter. He has further admitted that at no point of time, company raised the contention that the G.E.B - DGVCL has no right to issue supplementary bill in absence of the determination by Electrical Inspector.

          16.1 He has further admitted that the G.E.B - DGVCL has filed the suit for recovery of the supplementary bill. He has further admitted that the Company has never preferred any application that the electrical meter should be referred to the Electrical Inspector for deciding that whether it runs slowly or otherwise.

          16.2 In the aforesaid circumstances and interpretation of the evidence, it appears that no other electricity company nor consumer opted for sending the electricity meter to the Electrical Inspector for deciding slowness of the meter before suit proceedings started. It is equally settled that electricity company has not leveled any allegations of malpractice or fraud in consumption of the electricity by the consumer. It is equally true that at no point of time, M/s. Garrison Polysacks Private Limited the plaintiff of Special Civil Suit No.197 of 1994 raise any kind of pleading or issue that supplementary bill issued by the G.E.B - DGVCL is in non-compliance of Section 26(6) of the Act. It is again an unquestionable aspect that the M/s. Garrison Polysacks Private Limited filed a suit for a simple relief of perpetual injunction and yet the learned trial Court granted a declaratory decree and set aside the supplementary bill.

          16.3 Further, it has also been noticed that M/s. Garrison Polysacks Private Limited has never questioned the legality or propriety of the supplementary bill issued by the G.E.B - DGVCL. Also as noticed hereinabove, the application filed under Order 7 Rule 11 (a) of the CPC to reject the plaint on the ground of non-compliance of Section 26(6) of the Act has been rejected by the learned trial Court and that order has not been challenged before the higher Court. The electricity company twice made attempt to send the electricity meter to the Electrical Inspector for deciding the slowness of the meter, but he could not succeed as the learned trial Court dismissed both the applications and challenged thereof made to this Court has become infructuous in view of passing the impugned judgment and decree.

          16.4 It is in this aforesaid juxtaposition, it would appear that at different stage of the suit proceedings, learned trial Court passed self-contradictory order. On one hand, the learned trial Court believed non-application of Section 26(6) of the Act (order below Exh.20). On the other hand, the learned trial Court declined to send the meter to the Electrical Inspector for examination of the slowness of the meter and lastly by an impugned judgment, dismissed the suit of the G.E.B - DGVCL on the ground of non- compliance of Section 26(6) of the Act and decreed the suit of consumer-company and in addition to passing the perpetual injunction, also passed a declaratory decree, without being asked.

17. Thus, the suit proceeding and its final outcome effectively runs on self-contradictory orders and thereby both the matters are required to be remanded back for a fresh consideration by the learned Court below.

18. Thus, for the foregoing reasons, I find it that this is a fit case where proceedings of the civil suits are required to be remanded back to the learned trial Court for fresh consideration in accordance with law. The judgments which relied upon by the learned Advocates, in the facts of this case, are distinguishable.

19. For the foregoing reasons, the captioned appeals are allowed. The impugned common judgment passed in Special Civil Suit No.197 of 1994 and Special Civil Suit No.150 of 1997 are hereby quashed and set aside and the proceeding of both the civil suits are restored back to the Court of learned Principal Senior Civil Judge, Bharuch for fresh proceedings. The parties would be at liberty to file appropriate application to refer the electricity meter to the Electrical Inspector for deciding slowness of meter and to quantify the supply of electricity, if so advised. Decree to be drawn. Registry to send back the record and proceedings. Registry is directed to maintain a copy of this order in each matter.