[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original defendant to quash and set aside the judgment and decree dated 31.07.2002 passed by the learned Civil Judge (Junior Division), Gandevi in Regular Civil Suit No.1 of 2000 for recovery of Rs.28461.12 ps. with 24% interest p.a. as well as the impugned judgment and order dated 13.08.2004 passed by the learned Joint District Judge, 4th Fast Track Court, Navsari in Regular Civil Appeal No.50 of 2002 dismissing the said appeal filed by the appellant herein and confirmed the judgment and decree passed by the learned trial Court. [2.0] Respondent herein – original plaintiff instituted Regular Civil Suit No.1 of 2000 against the appellant herein – original defendant in the Court of learned Civil Judge (Junior Division), Gandevi for recovery of Rs.28,461.12 ps. with 24% interest to recover the amount for committing theft of electricity and using the same illegally. It is also required to be noted that simultaneously criminal prosecution was also launched against the appellant for committing theft of electricity. That the aforesaid suit was resisted by the appellant herein – original defendant submitting that he has not committed the theft of electricity as alleged. It was also submitted that he is not the owner of the agricultural field and therefore, there is no question of committing the theft of electricity by him and using the same illegally. It was also submitted that infact he has been acquitted by the competent criminal Court for the charge of electricity theft. Therefore, it was requested to dismiss the suit. It appears that though there was no evidence and/or material by which it can be said that the appellant – original defendant has committed theft, still solely and mainly on the ground that at the time of raid the appellant – original defendant ran away with the cable etc. which was recovered by the raiding party and therefore, it was presumed that the appellant has committed the theft and consequently the learned trial Court decreed the suit by judgment and decree dated 31.07.2002 and directed the appellant herein – original defendant to pay Rs.28,461.12 ps. with 24% interest p.a.
[2.1] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Junior Division), Gandevi in Regular Civil Suit No.1 of 2000, the appellant herein – original defendant preferred Regular Civil Appeal No.50 of 2002 before the District Court, Navsari and the learned Appellate Court – learned Joint District Judge by impugned judgment and order dated 13.08.2004 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order/decree passed by both the Courts below, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Ms. Japee, learned advocate appearing on behalf of the appellant has vehemently submitted that the impugned judgment and order passed by both the Courts below are absolutely illegal and contrary to the evidence on record. It is submitted that as such the respondent – original plaintiff has not proved by leading the evidence that infact the appellant had committed the power theft by connecting electric motor with electric line of the plaintiff. It is submitted that admittedly the appellant was not the consumer of the respondents. It is further submitted that the appellant was not the owner of the land in question in which the electricity was alleged to have been consumed. It is further submitted that even at the time when the inspection was made, the appellant was not present. It is further submitted that even in criminal case for a charge of power theft, the appellant has been acquitted. It is, therefore, submitted that when there is no material and/or evidence to show that infact the appellant has committed the theft, the finding of fact given by both the Courts below are on surmises and conjectures only and they are not supported by any evidence. Therefore, it is requested to allow the present Second Appeal and quash and set aside the judgment and orders passed by both the Courts below. Ms. Japee, learned advocate appearing on behalf of the appellant has further submitted that as such the learned Appellate Court has not discussed the case on behalf of the respective parties and/or has not given his own findings and only in one paragraph the learned Appellate Court has confirmed the judgment and decree passed by the learned trial Court without assigning any further reasons why he has not agreed with the submission on behalf of the appellant and why he has agreed with the submission made by the learned advocate appearing on behalf of the plaintiff. Therefore, it is submitted that as the judgment and order passed by the learned Appellate Court is absolutely non speaking and nonreasoned order, the same is required to be quashed and set aside.
[4.0] Present Second Appeal is opposed by Shri Premal Joshi, learned advocate appearing on behalf of the original plaintiff. It is submitted that as such the finding given by the criminal Court are not binding to the civil Court and therefore, merely because the appellant has been acquitted by the criminal Court still it was open for the Civil Court to come to its own finding and conclusion.
[4.1] It is further submitted by Shri Joshi, learned advocate appearing on behalf of the original plaintiff that even nobody came forward to sign the panchnama as a witness and therefore, though the panchnama and rozkam was prepared, it does not bear the signature of the independent witnesses. It is submitted that looking to the conduct of the appellant – defendant by snatching and running away with the cable etc., the learned trial Court has rightly passed the decree which is rightly confirmed by the Appellate Court. Therefore, it is requested to dismiss the second appeal.
[5.0] Heard the learned advocates appearing on behalf of the respective parties at length and considered the judgment and order passed by both the Courts below and the evidence on record. It appears that the learned trial Court has passed the decree against the appellant – original defendant mainly considering the conduct of the appellant that he ran away at the time of raid with the cables etc. and the learned trial Court has observed that otherwise the appellant would not have run away with the cable etc. Except the above there is no evidence by which it can be said that the appellant has infact committed the power theft. It is required to be noted that the appellant – original defendant is not the owner of the agricultural field and it belongs to his father. Nothing is on record that infact it was the appellant who used the electricity illegally and has committed the power theft. It is required to be noted that the bill was issued to the appellant who was not the consumer of the plaintiff for committing the power theft. Under the circumstances, when the plaintiff has failed to adduce the evidence and/or prove that infact the appellant had committed the power theft, the learned trial Court has materially erred in decreeing the suit. It appears that the judgment and decree passed by the learned trial Court and the findings given by the learned trial Court that the appellant has committed the power theft is on surmises and conjectures, which cannot be sustained. The finding given by the learned trial Court is based on no evidence and therefore, the same cannot be sustained.
[5.1] Now, so far as the impugned judgment and order passed by the learned Appellate Court is concerned, this Court is at pains to note the manner in which the learned Appellate Court has dismissed the Regular Civil Appeal. Except narrating the submissions made by the learned advocates appearing on behalf of the respective parties, the learned Appellate Court has not discussed the evidences and the issues. The learned Appellate Court has not given his own findings and his own conclusion except in one paragraph submitting that he agrees with the submission made by the learned advocate appearing on behalf of the plaintiff and he does not agree with the submissions made by the learned advocate appearing on behalf of the defendant and while dismissing the Appeal nothing has been discussed and/or mentioned by the learned Appellate Court. This is not the manner in which the Appellate Court is to decide and dispose of the Appeal.
[5.2] It is required to be noted that as observed by the Hon'ble Supreme Court in the case of Garikapatti Veerayya vs. N. Subbia Choudhry and Ors. reported in AIR 1957 SC 540, an Appeal is continuation of the suit. An Appeal is virtually rehearing of the matter and the Appellate Court possesses the same powers and duties as the original Court. Once again the entire proceeding are before the Appellate Court which can review the evidence as a whole, subject to statutory limitations, if any, and can come to its own conclusion on such evidence. In the case of Dayavati vs. Inderjit reported in AIR 1966 SC 1423, the Hon'ble Supreme Court has observed as under:
“An appeal has been said to be "the right of entering a superior court, and invoking its aid and interposition to redress the error of the court below." (Per Lord Westbury in Attorney General v. Sillem(2). The only difference between a suit and an appeal is this that an appeal "only reviews and corrects the proceedings in a cause already constituted but does not create the cause."
[5.3] It is also required to be noted that even the Appellate Court is required to determine and/or frame the points for determination as provided under Order XLI Rule 31 of the CPC. Considering the impugned judgment and order passed by the learned Appellate Court, it appears that the learned Appellate Court has framed only one point for determination which reads as under:
“Whether the judgment and decree passed by the trial Court is perverse, illegal and contrary to the provisions of law?”
No other points for determination has been raised/framed by the learned Appellate Court. Even considering the impugned judgment and order passed by the learned Appellate Court Even considering the impugned judgment and order passed by the learned Appellate Court, it appears that upto para 18, the learned Appellate Court has recorded the submissions made by the learned advocates appearing on behalf of the appellant and the respondent and thereafter, without any further discussion, the learned Appellate Court has dismissed the Appeal by observing that there is substance and force in the arguments advanced by the learned advocate for the respondent and there is no substance in argument advanced by learned advocate for the appellant. This is not the manner in which the learned Appellate Court could have decided the Appeal that too which is the First Appeal. Under the circumstances, judgment and order passed by the learned Appellate Court cannot be sustained.
[5.4] Therefore, this Court could have remanded the matter to the learned Appellate Court. However, considering the fact that the Civil Suit is of the year 2000 and the entire record and proceedings of the trial Court is before this Court and therefore, instead of remanding the matter to the learned Appellate Court, this Court has considered the Appeal on merits and has considered the judgment and decree passed by the learned trial Court which is found to be nonsustainable.
[6.0] In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned judgment and decree dated 31.07.2002 passed by the learned Civil Judge (Junior Division), Gandevi in Regular Civil Suit No.1 of 2000 as well as the impugned judgment and order dated 13.08.2004 passed by the learned Joint District Judge, 4th Fast Track Court, Navsari in Regular Civil Appeal No.50 of 2002 are hereby quashed and set aside. No costs.
menon (M.R. Shah, J.)