Geeta Pump (Private) Limited vs District Judge And Ors.

ORDER D.K. Seth, J.

1. This petition was filed by M/s. Geeta Pump (Private) Limited for quashing the order dated 5th May, 1988 contained in Annexure 28 to the writ petition passed by the learned District Judge, Saharanpur in Civil Appeal No. 32 of 1988. By the said order, the learned District Judge had rejected the petitioner's application for modification of the order dated 23rd April, 1998 passed in the appeal staying further proceedings of Execution Case No. 41 of 1998 arising out of the decree appealed against. In connection with the writ petition, an application for grant of interim order of stay was moved on behalf of the petitioner. The said application was opposed on behalf of the respondents. After hearing Mr. Ravi Kiran Jain, counsel for the petitioner and Mr. Sudhir Agarwal, counsel for the respondents, by an order dated 28th May, 1998, an interim order was passed as would be apparent from the said order dated 28th May, 1998 while calling for the records of as many as nine suits between the petitioner and the respondents in exercise of the power under Article 227 of the Constitution of India. The said order was supported by detailed reason as can be had from the order dated 28th May, 1998 aforesaid.

2. Records of all the cases were sent for and were ultimately received by this Court. The parties had exchanged affidavits. Both Mr. Jain and Mr. Agarwal had addressed the Court at length.

3. After the records were summoned through special messenger on 7th July, 1998.

Mr. Agarwal, on 21st July, 1998 mentioned that record of one suit No. 263 of 1998 between the same parties in which by virtue of an order dated 30th June, 1998, recovery of a sum of Rs. 21,93,393.35 paisa was stayed, be called for. Mr. Pushkar Mehrotra, learned counsel appearing with Mr. Ravi Kiran Jain, for the petitioner opposed the said prayer on the ground that in the interim order dated 30th June, 1998, the petitioner was directed to deposit Rs. 5 lakhs within a specified time as a condition for continuance of the interim, order dated 30th June, 1998, but the petitioner having not deposited the said sum of Rs. 5 lakhs, the condition precedent was not complied with and in consequence whereof, the interim order dated 30th June, 1998 passed in suit No. 263 of 1998 did not become operative. However, since the records of all the suits between the parties covering the same subject-matter had already been called for, the records of the said suit No. 263 of 1998 was also called for. At this stage, Mr. Jain having prayed for accommodation on his candid confession that he was unable to prepare himself, the matter was fixed for further hearing on 18th August, 1998.

4. On 18th August, 1998, Mr. Jain submitted that his junior did not get instruction in the meantime. The petitioner also did not contact Mr. Jain. However, he submitted that the instructing lawyer Mr. Brahmjeet Sharma contacted Mr. Jain over phone and instructed him to appear in the matter on behalf of the petitioner. Mr. Jain submitted that he has informed Mr. Brahmjeet Sharma that he is not supposed to prepare himself on the basis of Instruction so conveyed over phone. Considering the predicament of Mr. Jain, who assured that if he is accommodated, he will prepare himself in the meantime, the matter was adjourned to 8th September, 1998 when Mr. Jain assisted by Mr. P. K. Jain and Mr. Brahmjeet Sharma, the instructing lawyer, who were present in the Court assured that they will give all possible assistance to the Court in disposing of the matter. On 8th September, 1998, Mr. Jain having concluded his arguments, the matter was directed to be listed on 15th September, 1998 for further hearing. Mr. Agarwal had concluded his arguments on 15th September, 1998. The matter was then fixed for further hearing on 14th October, 1998 as prayed for by Mr. Jain. Mr. Jain could not conclude his reply on 14th October, 1998, wherefore, the matter was adjourned on 30th October, 1998 for further hearing. On the ground of some difficulties on the part of Mr. Jain, he was accommodated on 30th October, 1998 fixing the matter on 12th November, 1998, on which date, having resumed the arguments, Mr. Jain concluded his reply. Upon the conclusion of the hearing, the judgment was reserved.

5. Records of all the cases were brought before this Court in terms of the earlier order passed in the proceedings. Mr. Jain had gone through all the records, and had prepared a comparative chart of the respective prayers involved in different suits as well as the contents of the pleadings incorporated in the respective plaints and had put the same on record in the form of written submissions and notes by him. Mr. Agarwal had also submitted his notes and additional notes indicating the gist of his submissions in the Court. Both the learned counsel had made elaborate submissions in support of their respective contentions which may be summarized hereafter.

SUMMONS OF THE PETITIONER :

6. Mr. Jain had not disputed the jurisdiction and power of the High Court exercisable under Article 227 of the Constitution India as was sought to be exercised through the order dated 28th May, 1998. In his usual fairness, he had conceded that whenever it comes before the High Court, it is open to it to call for the records of any case pending before any subordinate Court or Tribunal over which it exercises its jurisdiction and passes appropriate orders in respect thereof even, if the said orders have not been challenged before this Court. He was in agreement with the views taken in the case of Daya Ram @ Dalian v. IInd Additional District Judge, Mirzapur, 1996 ACJ 751; Som Prakash Rastogi v. VIII Additional District Judge, Moradabad, 1997 (3) AWC 1490 (332) : (1998 AIHC 268) and Arun Lata v. Civil Judge, Bulandshahar, AIR 1998 All 29 (291) with regard to the scope and ambit and Article 227 vis-a-vis the power of superintendence of the High Court over the Courts and Tribunals subordinate to it.

But he contends that the facts and circumstances of this case do not satisfy the test laid down in the said case which warrants invoking of power of superintendence under Article 227 of the Constitution of India. According to him, the facts and circumstances, as he had explained in the course of his arguments, does not call for any interference under Article 227 of the Constitution of India in respect of any of the other cases outside the scope and ambit of this writ petition. In his attempt to substantiate his such contention, he had led me through the respective prayers made in the different suits and respective pleadings apparent from the respective plaints of each of the suits, and contended that each of the suits relates to different cause of action and the prayers made in the respective suits are completely different from each other. None of the respective reliefs could be had in one or the other suits. There is no over-lapping either of the cause of action or of the relief sought for in the respective suits. On the other hand, the fact discloses that by reason of mala fide conduct on the part of the respondents, the petitioner was driven under compulsion to institute successive suits to obtain the relief which the respondents are bound to perform under the contract even without the intervention of the Court.

He stressed that if the relief were given by the respondents, the petitioner would not have run to the Court. The petitioner had been conducting the suits through its nose. The luxury of fighting suits is not the aim and object of the petitioner. On the other hand, through deliberate successive mala fide actions on the part of the respondents, the petitioner was saddled with the unwanted obligation to fight successive litigation having been illegally cornered by the respondents and due to which the petitioner was compelled to undertake the exercise of launching so many suits having his back to the wall with the primary instinct of survival.

7. He had also referred to various provisions of the Indian Electricity Act 1910, and the Electricity (Supply) Act, 1948 and various other provisions of law to support his contention that the petitioner was denied its legal entitlement to receive supply in terms of the agreement. He also submitted that even in the prayer he has not asked for anything more than the compliance of the terms of the agreement for supply of electrical energy to the petitioner. The order dated 28th May, 1998 was passed on the basis of the wrong impression successfully created by Mr. Agarwal on the Court which Mr. Jain could not repel since at that point of time he did not have the advantage of going through the records of the other cases and which disadvantage he had now overcome. He had also pointed out that suit No. 685 of 1991 stood withdrawn and that suit No. 380 of 1992 was decreed on 8th January, 1998 and an appeal there out was pending. Suit No. 490 of 1992 was also withdrawn on 15th March, 1998.

8. While elaborating his submission with regard to the question of power under Article 227, he had contended that such power can be exercised when the proceedings on the face of it is mala fide, obnoxious, frivolous or that the continuance of such proceedings amounts to abuse of process of Court. According to him, a proceeding is liable to be quashed when on the face of it, the plaint does not disclose any cause of action or the suit is found to be barred expressly or by necessary implication. High Court's jurisdiction cannot be excluded in cases when a suit is filed on the ground of non-compliance of the specific provisions of law and the statutory Tribunal failed to act in conformity with the fundamental principles of judicial proceedings. Relying on the facts of these cases, he contends that there is neither any abuse of process nor the Court subordinate to the High Court had exceeded its limits nor any of the suits are mala fide, obnoxious or frivolous or devoid of cause of action. He further contends that though the records of the cases could be called for but the same cannot be decided finally by the Court in exercise of power under Article 227 of the Constitution of India, such power being available specifically under Sections 24 and 25 of the Code of Civil Procedure. In as much as when there are specific provisions of law or procedure available, the same cannot be eclipsed through a different procedure.

9. He further contended that by a notice dated 8th June, 1998 the petitioner had terminated the contract followed by a notice dated 8th July, 1998 for permanent disconnection of the supply line of electrical energy to the petitioner. As soon as the contract envisaged in the agreement is revoked, all the suits had become infructuous and thus the present proceeding also has become infructuous by reason thereof. He contends further that in exercise of power under Article 227 though the records of all the cases could be called for by this High Court but those could not be tried by this High Court. He contends further that the suits cannot be tried in the High Court because it would cause great inconvenience to the parties to contest the cases at Allahabad. He also claims that this Court may declare that there has been a permanent disconnection with effect from 1st April, 1998 and that the petitioners are not liable to pay any dues after 1st April, 1998. He relied on the submissions made in paras 14, 20, 22, 25, 26, 31, 32, 42 and 44 of the writ petition and contends that from the statements made therein, it is apparent that the petitioner was being harassed continuously, in one way or the other compelling the petitioner to file successive suits which he had attempted to demonstrate by referring to the relevant facts.

SUBMISSION OF THE RESPONDENTS :--

10. Mr. Sudhir Agarwal on the other hand contended that right from the day one of entering into the agreement the petitioner had resorted to filing of successive suits one after the other based principally on the selfsame cause of action. The process of the Court has been abused to such an extent that it warrants invoking jurisdiction under Article 227 of the Constitution so as to keep the sub-ordinate Courts within the bounds of their jurisdiction and for guiding the Courts properly in order to ensure that judicial process is not subject to abuse. He had pointed out from the various prayers and the pleadings that the cause of action and the relief in the various suits are almost one and the same and virtually had been repeated each time. He also repeated the contention, which he had made at the time when the order dated 28th May 1998 was passed. He had also taken me through various provisions of law and had contended that the petitioner cannot claim 24 hours continuous supply of energy by reason of promulgation of the U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) Order, 1977 as amended through the U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (First Amendment ) Order, 1986. He submits that the respondents had never harassed the petitioner through successive inspection. The inspections that were made at the initial stages and were formal inspections as are carried on for checking up the supply in-

stalled. On the other hand, the petitioner had prevented the respondents from entering the premises of the petitioner for inspecting the installation or otherwise as are contemplated within the scope and ambit of the Indian Electricity Act, 1910 and the Indian Electricity (Supply) Act 1948. After the order dated 28th May, 1998 was passed, the respondents could for the first time make an inspection. Only after the said order dated 28th May, 1998, a team could carry out an inspection in the premises of the petitioner, where form it was found that the petitioner had been running furnaces, which is not otherwise permissible under the agreement through which the petitioner had obtained the contract for supply of electrical energy. That apart, he had misused the electric supply to him in such a manner which entails calculation of the bills with a different rate of charges than what was being charged from the petitioner. He had sought to bring these facts on record by means of supplementary affidavit filed. Therefore, he prayed that this Court should exercise its power under Article 227 of the Constitution.

11. Both the counsel had relied on their submissions which they had made on 28th May, 1998 as was recorded in the order dated 28th May, 1998 and had repeated the same contentions. In order to avoid prolixity, I refrain from repeating those arguments once again in this order. Reference may be had to the respective contentions of the respective counsel from the order dated 28th May, 1998 in addition to what they had submitted, after the order dated 28th May, 1998 was passed, as is recorded hereinbefore.

FACTS:

12. In the facts and circumstances of the case, in order to appreciate the situation, it would be necessary to refer to the facts involved in the present case for the purpose of having a complete view of the backdrop in which this Court proposed to invoke Article 227 as indicated in the order dated 28th May, 1998. The facts summarised chronologically as hereafter will give us an impression as to over the one and same cause of action how the process of Courts has been utilised in its abuse creating confusion.

(a) Admittedly, the petitioner was an old consumer of the respondent Subsequently, a fresh agreement was entered on 2-12-1991 between the parties for supplying electricity of 940 KVA electrical load, which, is now the existing agreement between the parties. This agreement has replaced the old agreement through which supply of electricity used to be made to the petitioner. This fact is not disputed by Mr. Jain, learned counsel for the petitioner. The petitioner had been making complaints about erratic supply of electricity to the respondents, therefore, the respondents proposed to lay 11 KV feeder line to supply electricity to the petitioner.

(b) By filing suit No. 685 of 1991, the petitioner sought injunction restraining the Electricity Board from laying 11 KV feeder line for supplying electricity to the petitioner. In the said suit, an ad interim injunction was granted restraining the Electricity Board from laying 11 KV feeder line. The said interim order is still subsisting.

(c) On 18-6-1992 the petitioner filed O.S. No. 380 of 1992 before the same Court being the Court of Civil Judge (Senior Division), Saharanpur seeking permanent injunction directing the Electricity Board to supply electricity every day for 24 hours in all three phases subject to the conditions mentioned in the agreement and in the said suit, the petitioner obtained an ex parte injunction to the same effect.

(d) On l1th August, 1992, the petitioner filed another suit (O.S. No. 490 of 1992) seeking mandatory injunction directing the Electricity Board to supply electricity continuously every day 24 hours in all three phases subject to the circumstances expressly mentioned in the agreement and not to create any obstruction therein. In the said suit also, the petitioner obtained interim injunction to the effect that in the meantime the defendants are directed by means of temporary injunction that the supply of electricity to the plaintiff shall be made available regularly on the contracted load and there shall not be interference of any kind in continuity in all the three phases.

(e) On 25th August, 1992, the petitioner filed O.S. No. 514 of 1992 seeking mandatory injunction directing the Electricity Board not to replace the existing meter unless and until its correctness is verified under the orders of the Court and in case of replacement, meter of the same company and the same type be installed after getting it tested through an approved laboratory and till then to maintain status quo and to continue electric connection. In this suit also the petitioner obtained an ex parte injunction restraining the Electricity Board from checking or replacing the meter by taking police help and to maintain status quo. Thereafter, the petitioner himself got its meter tested on 6-9-1993 by the Electrical Inspector who submitted his report on 22-9-1-993 to the extent that the said meter is 12.35955% fast and, therefore, recommended replacement of the meter. On 9-11-1993, the concerned Executive Engineer required the petitioner to allow him to change the meter on the basis of the report of the Electrical Inspector. On 11-11-1993, the petitioner allegedly disallowed the Executive Engineer from changing said meter. On 22-1-1993, a fresh request by the Executive Engineer was made for replacement of the meter but this was not allegedly acceded to by the petitioner.

(f) On 31-5-1994, O.S. No. 255 of 1994 was filed by the petitioner seeking injunction directing the Electricity Board not to replace existing electric meter at his premises till its correctness is tested at National Laboratory, Panipat and with the permission and approval of the Court and till then to maintain status quo. In the said suit, the petitioner obtained an ex parte injunction restraining the Electricity Board from replacing the meter till the existing meter is tested by the National Laboratory, Panipat, in presence of the official of Director Electricity Safety, Lucknow and to present the report in Court and till then refrain from replacing the meter.

(g) On 16-12-1994, the Electricity Board filed objection against the ex parte injunction passed in suit No. 255 of 1994. The said objection was rejected and the ex parte injunction order was confirmed. Thereupon, against the said order dated 16-12-1994, passed in suit No. 255 of 1994, Misc. Appeal No. 163 of 1994 was preferred by the Electricity Board.

(h) By an order dated 24-4-1995, the interim injunction granted on 18-6-1992 in O.S. No. 380 of 1992 was confirmed directing the Electricity Board to maintain 24 hours continuous supply to the petitioner.

(i) By an order dated 18-9-1995, passed in O.S. No. 514 of 1992, ex parte injunction order dated 25-8-1992 was vacated when on the date fixed the petitioner had sought for adjournment. Ultimately, the said order dated 8-9-1995 was recalled and the interim injunction passed in O.S. No. 514 of 1992 which was vacated by the order dated 18-9-1995, was restored on the condition that the petitioner shall not seek further adjournments. The said interim order is still continuing, though in the meantime 15 more adjournment have been sought by the petitioner.

(J) On 6-8-1997, the petitioner filed another suit being O.S. No. 409 of 1997 against the Electricity Board seeking an injunction directing the Electricity Board to allow the petitioner to pay arrears of additional security of Rs. 2,73,815/- in ten monthly instalments. In the said suit, the Court granted injunction permitting the petitioner to deposit only l/4th of the arrears of the additional security in the office of the Board and deposit security of the rest amount and stayed realisation of rest of the amount while restraining the Electricity Board from disconnecting the supply to the petitioner.

(k) Sometimes in August, 1997 yet another suit being O.S. No. 411 of 1997 was filed by the petitioner seeking mandatory injunction restraining the Electricity Board and its officials from terminating the agreement dated 2-12-1991 and not to compel the petitioner to execute fresh agreement. Mr. Agarwal submits that in this case also according to his information, ad interim order has been passed but copy of the said order having not been made available to him, he is unable to make any statement with regard thereto as well as with regard to the contents of such order.

(l) On 5-9-1997 Misc. Appeal No. 126 of 1996 , filed against the interim order passed on O.S. No. 380 of 1992, was rejected by an order dated 5-9-1997 passed by the Additional District Judge, 4th Court Saharanpur.

(m) In December, 1997, yet another suit being O.S. No. 680 of 1097 has been filed by the petitioner seeking mandatory injunction restraining the Electricity Board from drawing overhead 11 KV line order to effect supply to the petitioner through 11 KV feeder.

(n) On 8-1-1998, O.S. No. 380 of 1992 was decreed by the learned trial Court by granting mandatory injunction to the board to continuously supply electricity to the petitioner in accordance with the terms and conditions of the agreement till the agreement subsists.

(o) On 21-1-1998 O.S. No. 43 of 1998 was filed by the petitioner seeking mandatory injunction against the Electricity Board restraining it from disconnecting the petitioner's supply. In the said suit, the petitioner obtained ex parte injunction on the same terms as sought for.

(p) On 19-2-1998 Civil Appeal No. 32 of 1998 was filed by the Electricity Board against the judgment and decree dated 8-1-1998 passed in O.S. No. 380, of 1992.

(q) On 21-2-1998, the petitioner's application dated 27 -1-1998 in O.S. No. 255 of 1994 seeking ad interim mandatory injunction directing the Electricity Board to remove all additional lines, meter and cables came up for consideration before the trial Court and the trial Court held that the Board's action in installing separate line and feeder of 11 KV was contrary to the order dated 16-12-1994 and 7-3-1995 passed in O.S. No. 255 of 1994 and the Misc. Appeal and, therefore, directed the Electricity Board and its officials to remove the meter installed at the sub-station on 25-2-1998 and to inform the Court. The Court had also directed the Electricity Board to remove additional feeder line from the premises of the petitioner. Explaining the background of this order, Mr. Agarwal points out that since the Board had apprehensions about the quantum of electricity consumed by the petitioner, therefore, the Board had installed in its own sub-station so as to monitor the supply through mixed feeder which not only concerned the petitioner but also many other consumers which were being catered through it. Against the said order dated 21-2-1998 passed in O.S. No. 255 of 1994, the Electricity Board filed Civil Appeal No. 40 of 1998. In the said appeal, by an order dated 2-3-1998, the appellate Court had stayed the operation of the order date 21-2-1998 passed in O.S. No. 255 of 1994.

(r) On 17-3-1998, the petitioner filed a writ petition being writ petition No. 8974 of 1998, whereupon the order dated 2-3-1998 has been staged while directing the appellant Court to dispose of the appeal itself within the shorter possible time. The learned Civil Judge by his order dated 31-3-1998 dismissed the said appeal No. 40 of 1998 as not maintainable.

(s) The trial Court by an order dated 1-4-1998 passed in O.S. No. 255 of 1994, directed the Court amin to disconnect the meter installed at the substitution and feeder line and submit compliance report to the trial Court without damaging the meter or line. Pursuant to the said order dated 1-4-1998 passed in O.S. No. 255 of 1994, the Court Amin removed the meter from the sub-station after disconnecting electric supply to the petitioner and submitted alleged compliance report to the trial Court. On 6-4-1998, the petitioner filed an application on O.S. No. 255 of 1994 seeking direction for restoration of its supply, as it was not restored when the meter from the sub-station was removed by the Court Amin and sought for supply through police help. On 7-4-1998, while issuing notice to the Electricity Board for filing objection the Court directed the Court Amin to ensure restoration of electric supply to the petitioner's feeder. On 8-4-1998, the Court Amin submitted a report before the trial Court that certain persons at the sub-station misbehaved with him and his complaint was not entertained by the police. On 10-4-1988, this Court Amin filed an application under Section 156 of the Criminal Procedure Code before the Additional Chief Judicial Magistrate 1st Court, Saharanpur seeking a direction to Police Station Kotwali Dehat to register first information report and take suitable action.

(t) Since various ex parte orders were continuing as discussed above and objections were not disposed of by the trial Court, the Electricity Board had filed successive writ petitions. Writ Petition No. 12687 was filed by the Board seeking a direction to the trial Court to decide the injunction meter on merit in O.S. No. 480 of 1992. The said writ petition was disposed of on 10-4-1998 directing the trial Court to dispose of the matter within a period of two months. Another writ petition being writ petition No. 13302 of 1998 was filed by the Electricity Board seeking direction to the trial Court to dispose of the interim injunction matter on merits in O.S. No. 409 of 1997. The said writ petition was disposed of by an order dated 16-4-1998 with similar direction. Writ Petition No. 14253 of 1998 was filed by the Board seeking a mandamus directing the Civil Judge, Saharanpur to dispose of the objection filed by the Board against ex parte injunction order dated 25-8-1992 in O.S. No. 514 of 1992 on merits. This writ petition was disposed of on 23-4-1998 with similar direction.

(u) On 23-4-1998, the learned District Judge, Saharanpur in Civil Appeal No. 32 of 1998, stayed execution case No. 4 of 1998 in respect of the trial Court's order dated 8-1-1998 passed in original suit No. 380 of 1992.

(v) Referring to the background of this order, Mr. Agarwal submits that the petitioner has filed an application in the execution case No. 4 of 1998, on which the Court had found by order dated 8-1-1998 that the officers of the Board were guilty for non-compliance of the said order and therefore, the order dated 8-1-1998 was issued directing the Board to supply continuous electricity to the petitioner and awarding civil prison to the officers of the Board as well as issuing order of attachment against the Board.

(w) Another application against the Board and its officers for committing contempt for violation of the order dated 18-4-1998 passed in Original Suit No. 255 of 1994 was filed by the petitioner and for a direction to restore the petitioner's electric supply disconnected on 1-4-1998.

(x) On the application filed by the petitioner for modifying the order dated 23-4-1998 passed in Civil Appeal No. 32 of 1998 arising out of O.S. No. 380 of 1992, the learned District Judge, Saharanpur directed the Board to install one meter at the entry point and one at the sending point. In the meantime, the order dated 5-5-1998 since been impugned in this order has been passed.

(y) In the meantime, on 30th April, 1998 a bill for a sum of Rs. 21,93,393.35 paise was raised by the respondents. The validity of the said bill was challenged in O.S. No. 263 of 1998. In the said suit, the petitioner obtained an interim order on 30th June, 1998 to the extent that on condition of deposit of a sum of Rs. 5 Lakhs, the realization of the remaining amount would stand restrained. The petitioner, however, did not deposit the sum of Rs. 5 Lakhs within the time stipulated. The records of this case where also called for by order dated 21st July, 1998 as mentioned earlier.

(z) The petitioner by a notice dated 8th June, 1998 terminated the contract with the respondents for supply of electric energy followed by a notice dated 8th July, 1998 for permanent disconnection. Mr. Agarwal had sought to rely upon the development that had taken after 28th May, 1998. But the said facts cannot have any bearing in the present case since we are concerned with the situation as was existing on 28th May, 1998 when Article 227 was invoked. Therefore, I refrain from referring to those facts at this stage.

13. I may, however, observe that the petitioner had at one point of time sought to engage Mr. H.K. Misra and Mr. Vishabh Dixit who filed Vakalatnama on behalf of the petitioner on 21st July, 1998. The said Vakalatnama did not bear any endorsement of the counsel for the petitioner already appearing signifying their consent in filing fresh Vakalatnama engaging some other counsel. Neither the counsels already engaged by the petitioner were discharged. However, by order dated 21st July, 1998 it was directed that the names of those counsel should also be printed as counsel for the petitioner along with the names of the counsel already appearing. Subsequently, however, Mr. Jain had conducted the case. The petitioner had also sought to terminate the contract by a notice dated 8th June, 1998 and contended that the proceedings had become infructuous by reason of such notice. It seems that such a step was taken by the petitioner in order pre-empt the present proceedings and overreach the exercise of jurisdiction under Article 227 by this Court and sought to suppress the judicial proceedings safeguarding the abuse of process already undergone by it bringing a disrepute in the delivery system.

POINTS FOR DETERMINATION :

14. On the backdrop of the case as indicated above, now it is to be seen as to whether the process of the Court has been abused or not, or whether the trial Court had failed to maintain its bounds or whether the alleged cause of action are so different to warrant separate suits, or could the suits be maintained.

WHY ARTICLE 227 IS INVOKED :

15. One of the grounds for invoking the power of superintendence in the present case calling for records of all the cases, was to ensure that the trial Court must act within its bounds and that the process of the Court is not misused or abused. It was so done in the situation as would be apparent from discussion hereinafter.

16. In the facts and circumstances of the case, it appears that the cause of action was based on the agreement between the petitioner and the Electricity Board and revolves round the compliance of the terms and conditions thereof. Admittedly, cause of action is a bundle of facts. Some times within the scope and ambit of the same cause of action, subsequent developments between the parties arising out of the one and same agreement, can very well be brought in. In effect in each suit the plaintiff had sought to enforce its right emanating from one and the same agreement. It is in fact a specific performance of the contract. Even, if there are subsequent departures, the same are also part of the same cause of action namely the specific performance of the contract and could very well be brought within the scope and ambit of one suit even if there might be some difference about some facts, and could very well be joined together. Admittedly, the parties are same; performance, which is sought to be enforced also, flows from one and the same contract.

17. The relief that is being claimed in all these suits appears to be in the form of injunction either prohibitory or mandatory in order to prevent breach of the contract. If there is an injunction, prohibitory or mandatory, securing performance of contract by preventing breach thereof either by restraining the defendants from doing something or by directing the defendant to do something to prevent further breach than the breach alleged or made the bases of the cause of action including apprehended breach. In such case, it would not be necessary to institute separate suit if subsequent breach of the same contract is alleged inasmuch as further breach could be taken care of by means of prohibitory injunction in the pending suit.

18. In such circumstances, it is very difficult to conceive that there is several successive causes of actions.

HOW THE SUITS WERE FILED :

19. In the above context, let us now examine the scope and ambit of the various suits instituted by the petitioner. Pursuant to the agreement entered into on 2-12-1991, the first suit, O.S. No. 685 of 1991, was filed within a fortnight of the execution of the agreement. After six months, the second suit, O.S. No. 380 of 1992 was filed on 18-6-1992. Within less than two months, the third suit, O.S. No. 490 of 1992, was filed on 11th August, 1992. Within another fortnight, the fourth suit, O. S. No. 514 of 1992 was filed on 25th August, 1992. The fifth suit, O.S. No. 255 of 1994, was thereafter, filed after about two years namely on 31-5-1994. The sixth suit, O.S. No. 409 of 1997, was then filed about three years thereafter viz., on 6-8-1997. In the same month of August, 1997 the seventh suit, O.S. No. 411 of 1997 was tiled. After about four months thereafter, the eighth suit, O.S. No. 680 of 1997 was filed in December, 1997. Within less than one month, thereafter the ninth suit, O.S. No. 43 of 1998 was filed on 21-1-1998. The tenth suit, O.S. No. 263 of 1998 was filed in June, 1998. In the meantime on 6th May 1998, criminal contempt No. 36 of 1998 was filed alleging violations of the order dated 8th April, 1998 passed on O. S. No. 255 of 1994 being the fifth suit. The above description indicates the close proximity of the successive suits filed one after the other in between the same parties, arising out of the one and the same agreement as referred to hereinbefore.

THE CAUSE OF ACTION OF FIRST THREE SUITS -- A COMPARISON :

20. Now let us examine the cause of action and the" relief claimed in the suits comparatively. OS. No. 685 of 1991 filed within a fortnight of the agreement dated 2-12-1991, was based on the cause of action that pursuant to the said agreement the petitioner was entitled to continuous supply of the electricity and that such supply was not possible from Manani (rural) feeder line, but the petitioner apprehended that the respondents wanted to shift the supply from the existing feeder line to another feeder line. In the said cast;, it was prayed that the Board may be restrained from transferring or shifting the electric connection to another feeder line and from interfering with the electric connection. In the said suit, an ad interim injunction was granted restraining the Electricity Board from laying 11KV feeder line. In the second suit, O.S. No. 380 of 1992, the cause of action was that on account of filing of O.S. No. 685 of 1991, the board had been sending wrong bills and was not giving regular supply and the petitioner apprehended that the respondents may not be giving continuous supply. Therefore, an injunction was sought for directing the board to supply electricity to the plaintiff-factory situated at Delhi Road, Saharanpur, on every day in a week, 24 hours continuously at 3 phases without creating any obstruction except the circumstances (exceptions) provided in the agreement. The third suit, O.S. No. 490 of 1992, was instituted on llth August, 1992 on the basis of enforcement by the Sub Divisional Officer apprehending stoppage of supply of electrical energy, praying for an injunction against the defendant Board that electricity should be supplied to the plaintiff-factory situated at Delhi Road, Saharanpur, in every day in a week 24 hours continuously on three phases without creating any obstruction except the circumstances (exceptions) provided in the agreement. In both, O.S. No. 380 of 1992 and O. S. No. 490 of 1992, same interim order was issued ex parte though on two different dates and couched in different languages but to the same effect. A perusal of the cause of action and the relief in OS. No. 380 of 1992 and O. S. No. 490 of 1992, shows that there was no fresh cause of action nor any further relief was asked for in the two suits. Then again, from the relief which was asked for in the second and third suit was also implicit in the first suit where a prayer was made for injunction restraining the Board from interfering with the electric connection of the petitioner. The interim order, which was sought for in the second and third suit, could very well be asked for in the first suit itself. The cause of action for the second and third suit were ancillary and virtually the relief could have emanated from the first suit. Even for arguments sake, if it is presumed that the relief contemplated in the second and third suit could not be achieved in the first suit, then again the reliefer cause of action for the third suit could have very well be brought within the scope and ambit of the first suit. The alleged endorsement could have been brought within the scope of the second suit simply by means of an application under Order 39 Rules 2-A of the CPC. The alleged endorsement does not give rise to a fresh cause of action warranting filing of a fresh suit.

CAN THERE BE ANY CAUSE OF ACTION FOR THE FIRST THREE SUITS :

21. Mr. Sudhir Agarwal had contended that since the petitioner had insisted immediate installation of the supply, therefore, supply was effected from 940 KV feeder line, instead of laying down 11 KV feeder line for the petitioner.

22. Under the provisions of the Indian Electricity Act 1910 and the Electricity (Supply) Act 1948, a consumer has no choice as to from which source electricity would be supplied. It is the decision of the Board to supply electrical energy according to the terms and conditions of the agreement. In case the supply is affected from one or the other line, the consumer cannot claim any cause of action to prevent the Board from effecting supply from a particular line. Laying of lines is the prerogative of the Board. A consumer cannot claim any right with regard to laying of a line for effecting connection of the consumer unless it affects its safety or other proprietary right.

23. Mr. Ravi Kiran Jain in his usual fairness had admitted that neither safety nor any other proprietary right was being affected by reason of laying of 11 KV feeder line.

24. But it appears that the consumer had an apprehension that continuous supply may not be available on shifting of the line. It was purely based on an apprehension, which was absolutely subjective consideration of the consumer himself. Thus, it appears that there was no cause of action for the first suit. On the other hand, it shows mala fide and frivolity on the part of the petitioner itself. Then again, the agreement itself contained a clause that the supply would be effected to the petitioner through 11 KV line. In such circumstances the first suit appears to be speculative and frivolous and based on no cause of action available to the petitioner and as such is surely an abuse of the process of law.

WHETHER 24 HOURS SUPPLY IS A RIGHT UNDER THE LAW :

25. The distribution and supply of electricity is a statutory duty and obligation of the Board, which is governed by different orders passed in exercise of the powers conferred on it through statute. A contract having been entered into and being governed by statutory provisions, the petitioner cannot claim any right outside the scope and ambit of the statutory provision. The supply, distribution, consumption, and use of electricity can be regulated by the Government through issue of appropriate orders under Section 22-B of the Indian Electricity Act 1910. In exercise of the power conferred by Section 22-B of the 1910 Act, the U. P. Electricity (Regulation of Supply. Distribution, Consumption and Use) Order, 1977 was issued for regulating regulation of supply, distribution, consumption and use of electricity. The petitioner cannot claim continuous supply in view of the said order as is apparent from the agreement itself.

26. The said U. P. Electricity (Regulation of Supply, Distribution, Consumption and Use) Order 1977 as amended by U. P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (First (Amendment) Order 1986, empowers the Board to impose cut in consumption of energy and demand compulsorily in respect of different kinds of consumers as provided therein. It is only continuous process industrial power consumers listed in Annexure 2 and textile mills receiving power at 33 KV and below from U.P. State Electricity board excluding oxygen and medicines for medical purposes, were subjected to a block closure of 10/11 days in a month upon a division of these industries in 3 groups according to Schedule 'C' to the 1977 order and would be required to close their process for 10 days followed by working period of 20/21 days into rotation. Admittedly, the petitioner was not a continuous process industrial power consumer within the meaning of Annexure 2. The petitioner does not come within any of the continuous process industrial power consumers listed in Annexure 2, and is subject to power cut which fact is also not disputed by Mr. Jain.

NO CAUSE OF ACTION FOR FIRST SECOND. THIRD & EIGHTH SUIT :

27. Thus, the petitioner cannot claim continuous 24 hours supply de hors the agreement. The supply is subject to 1977 Order read with 1986 (First amendment) Order. The petitioner, therefore, cannot claim a cause of action for supply of electrical energy continuously for 24 hours every day in a week once it is subject to the provisions of the said Orders as well as the agreement. The cause of action of the second and third suit even on independent merits, are also not available to the petitioner though such relief could very well be obtained through the first suit itself. The second and the third suit thus also appear to be frivolous and baseless and have been instituted in sheet abuse of the process of law.

28. The interim orders issued in the said two suits were also beyond the competence of the Court itself. The Court cannot grant interim injunction to the extent of contradicting statutory provisions. The Court appears to have exceeded the bounds beyond its limits in granting two successive interim orders on the same terms in two suits. Factually it is correct as contended by Mr. Agarwal that it was the same officer, who had passed orders in both the second and the third suit. In clause 8 of the 1977 Order, any non-continuous process industry other than petrol pump, automobile services and air filling station were not entitled to use electrical energy between 18.00 to 22.00 hours. It is common knowledge that there is schedule for power cuts by reason of dearth of production of the electricity in the State in the present situation. It is very difficult to conceive that the learned Judge was not aware of any such regulations.

29. The supply of electrical energy is so technical a matter and has so many details that it is not possible to supervise the process of supply by the Court and, therefore, the suit that was filed for enforcement of the contract running into minute details unsupervisable by the Court renders the very basis of the suit itself not maintainable in view of Section 14 of the Specific Relief Act.

30. The eighth suit being O. S. No. 680 of 1997 filed in December, 1997 seeking mandatory injunction restraining the Board from drawing overhead 11 KV feeder line in order to give supply to the petitioner from such 11 KV feeder line, appears to be a repetition of the first suit being O. S. No. 685 of 1991 where an injunction was sought for restraining the respondents from shifting the connection from 940 KV line.

31. Thus it is abundantly clear that the first, second, third and eighth suits could not at all be maintained and are wholly frivolous.

NO CAUSE OF ACTION FOR FOURTH & FIFTH SUIT :

32. The fourth suit being O.S. No. 514 of 1992 filed on 25th August 1992 filed on 25th August, 1992 was intended for seeking mandatory injunction restraining the Board from replacing the existing meter until its correctness is verified. Admittedly, it was so verified at the behest of the petitioner and was found to be defective and required to be replaced.

33. In the fifth suit being O.S. No. 255 of 1994, filed on 31st May 1994, same relief was sought for through an injunction restraining the Board from replacing the existing meter at the petitioner' premises till its correctness was tested at the National Laboratory, Panipat. This very relief could very well be included in the first suit itself. It is a part of the same cause of action emanating from the agreement itself relating to supply of electrical energy. It appears that for the same identical relief, the fourth and fifth suits were filed, which could very well be included in the first suit. That apart, the petitioner cannot claim any right relating to the meter or otherwise beyond the scope and ambit of the agreement and the statute the extent and effect whereof would be discussed later on.

CAUSE OF ACTION FOR SEVENTH & NINTH SUIT :

34. The seventh suit being O. S. No. 411 of 1997, filed in August, 1997 was for mandatory injunction restraining the Board and its officials from terminating the agreement (dated 2-12-1991) and compel the petitioner to execute a fresh agreement.

35. In the ninth suit being O.S. No. 43 of 1998 filed on 21st January 1998, mandatory injunction restraining the Board from disconnecting the supply was asked for. These two suits sought for the same and identical claim.

CAUSE OF ACTION FOR SIXTH & TENTH SUIT:

36. In the sixth suit being O. S. No. 409 of 1997 filed on 6th August, 1997, the petitioner sought for instalment in respect of arrears of additional security for payment of the same in ten monthly instalments, in which an injunction was granted for depositing l/4th of the arrears and to furnish security for the rest.

37. In the 10th Suit, the petitioner claimed stay of realisation of the arrears bill raised against it.

CAUSE OF ACTION FORTHE ELEVENTH ONE :

38. The 11th one being Criminal Contempt No. 36 of 1998 filed on 6th May, 1998 was in respect of contempt for violating the order dated 8th April 1998 passed in O. S. No. 255 of 1994.

SUPPLY OF ENERGY-- HOW FAR COULD BE CLAIMED :

39. The only relief that, was being sought for in all these suits instituted by the petitioner aimed at securing supply of electricity to the petitioner. The only aim and object of the petitioner to approach the Court through so many suits was to secure the supply of electrical energy under the said agreement dated 2-12-1991. In view of the said agreement, the petitioner cannot claim any right outside the scope and ambit of the said agreement. Rights between the parties are governed by the said agreement. Admittedly, the said agreement is a statutory agreement. If there is anything which is not covered by the agreement in that event, the same would be covered by the provisions of the statutes operating in the field viz., the Indian Electricity Act, 1910, Indian Electricity Supply Act, 1948 and in the rules and regulations framed thereunder. The petitioner, therefore, cannot claim anything outside the scope and ambit of the said agreement and the provisions contained in the said two Acts and the rules and regulations framed thereunder.

40. Mr. Jain has also not put his claim and had very fairly contended that the right and claim of the petitioner is contemplated within the scope and ambit of the said agreement and the Acts and the rules and Regulations as referred to above and the petitioner expects the fulfilment, of its rights under the said agreement as are available within the scope and ambit of the provisions of the statutes referred to above and he cannot put his clam beyond the scope and ambit of the agreement and law.

41. Mr. Agarwal at the same time very fairly contends that, the Board is prepared to adhere to the agreement, as it is required to be adhered to by the Board within the scope and ambit of the statute.

42. Admittedly, the Board is a creature of statute. It has no power outside the scope and ambit of the statute. Neither it can act de hors the statute. All its activities are confined within the provisions of the statute and agreement, which is also a statutory agreement within the said statute. Therefore, in my view, the Board is bound to act within the scope and ambit of the statute in order to honour the agreement dated 2-12-1991. Nothing has been pointed out by Mr. Agarwal or by Mr. Jain that there is anything contained in the agreement dated 2-12-1991 is outside the scope and ambit of the statute.

COULD LAYING OF FEEDER LINE BE OBJECTED TO?

43. Mr. Agarwal contends that in order to adhere to the agreement and the provisions of statute, the Board had proposed that instead of effecting supply through mixed feeder line, even without asking for any expense for laying the line at the requisition of the consumer, it will lay 11 KV line through an independent feeder line in order to ensure better supply to the petitioner and such independent feeder line would cater to the need of the petitioner and its sister concern and it may not affect supply to any other consumer through the said feeder line so long as the petitioner and its sister concern continue to remain consumer through the said 11 KV feeder line. According to him this will secure the benefit of the petitioner since the supply will be made through an independent feeder instead of through mixed feeder line from which supply is effected not only to the petitioner but also to different consumers.

44. In that view of the matter, the petitioner cannot have any objection or opposition to such steps being taken by the board. Under the statute, the Board has the authority to do the same by virtue of Clause VI Sub-rule (2) of the schedule to the Indian Electricity Act which provides that any service line laid for the purpose of supply in pursuance of a requisition under Sub-clause (1) shall, notwithstanding that a portion of it may have been paid for by the person making the requisition, be maintained by the licensee (Board), who shall also have the right to use it for the supply for energy to any other person. Whether the consumer had paid for the whole or part or may not have paid for portion thereof the Board has a right to use for supply of energy to any other person, which, as contended by Mr. Agarwal, appears to have presently been forgone only to facilitate supply to the petitioner. The said Sub-rule (2) also requires the Board to maintain such supply line for the purpose of effecting supply to the petitioner.

45. It is an admitted proposition that maintenance includes replacement, repair or installation of fresh line in order to ensure maintenance of supply of electrical energy. Thus the petitioner cannot claim any right against the Board to install, maintain, replace any feeder line for effecting supply to the petitioner. If he has no rights such right cannot be enforced through any legal process. Any order contrary thereto would be wholly outside the scope and ambit of the statutory provisions as well as agreement and therefore, cannot be enforced by any Court which would be thoroughly an order staring on the face of the law governing the field.

46. The electrical installation remains the property of the Board. The Board has power to lay down overhead line under Indian Electricity Act and the said power can never be obstructed to by the consumer as has been held in the case of Dev Raj v. U. P. State Electricity Board, AIR 1977 All 452. In the said case it was held that by reason of the notification issued under Section 51 of the Indian Electricity Act 1910, the words Telegraph authority' in Section 10 of the Telegraph Act were substituted by 'State Electricity Board' in Section 10 of the Telegraph Act were substituted by 'State Electricity Board'. In view of the notification read with Section 10 of the Telegraph Act, it is not possible to contend that the State Electricity Board had no power to locate towers on the land owned by a person. Relying on this decision, it is contended by Mr. Agarwal that LJPSEB has the discretion to decide as to where the meter room should be located.

47. The lines are maintained in order to ensure supply to the consumer. The consumer has a right to get the supply. He has no right with regard to the line and it cannot claim any right beyond the agreement between him and the Board. My attention has not been drawn to any terms and conditions in the agreement, which is being violated by reason of installation of independent feeder line.

COULD CHANGING OF METER BE OBJECTED TO?

48. So far as the question of changing of meter is concerned, the same is governed by the provisions contained in Section 26 of the Indian Electricity Act, 1910. It makes it abundantly clear that if the consumer desires that his meter be tested through Electrical Inspector, the same may be done. In the present case the meter was so tested at the behest of the petitioner on 6th September, 1993 by the Electrical Inspector who by his report had recommended replacement of the petitioner's meter. Therefore, the petitioner has a right to get the meter replaced.

The Board is also bound to replace the meter. Sub-section (4) of Section 26 of the said Act provides that the licensee has right to test such meter and may replace such meter. It is a duty, under Section 26 of Act, of the Board to maintain correct meter.

49. The petitioner cannot claim any right de hors the agreement and the statute. Nor he has any right to oppose the change of the meter. Even if the disputes in that event, it is to be referred to the Chief Electrical Inspector of the State and not otherwise. There being an alternative remedy, it is not open to the Court to intervene in such cases, which is clearly a technical matter. Supply of electricity is a highly technical affair, which is beyond the comprehension of persons who are not acquainted with the electrical engineering or its system. These are technical matters, which the Court should avoid interference.

50. In the case of M.P.S.E.B. v. Smt. Basantibai, AIR 1988 SC 71, it was held that if there is a dispute whether the meter is correct or faulty, the same is to be decided by the Electrical Inspector. Relying on this decision Mr. Agarwal sought to contend that there was no dispute that the meter was fault. It was found by the U.P.S.E.B. that the meter was defective, which is also the case of the petitioner, therefore, U.P.S.E.B. was obliged to replace it and the petitioner had no legal right in the facts and circumstances of the case to oppose such replacement of the meter.

CAN INSTALLATION OF METER AT SUBSTATION BE OPPOSED?

51. There cannot be any right to the petitioner to prevent the Board to install a meter at its sub-station. The petitioner cannot claim any right over the Board's substation or as to how the Board will monitor its supply system. The Court cannot intervene with the statute empowering the Board to perform its duty relating to its own supply system. The petitioner is not being asked to pay on the basis of the meter reading at the sub-section. It is only for the purpose of the Board itself; such meter is being Installed at the sub-station. Therefore, the petitioner having no right with regard to the installation of the meter at the sub-station, neither the same can be removed nor the Board can be prevented from installing and maintaining such meter at the supply station.

COULD CHECKING OF METERS BE OBJECTED TO?

52. The petitioner alleged that the petitioner was being harassed by the Board by sending team of officers in the name of checking the electric meter and creating various disturbances which compelled the petitioner to initiate one after the other legal proceedings to save itself from the harassment caused by the officers of the Board.

53. A bare perusal of the plaint and written statement filed in O.S. No. 514 of 1992 particularly paragraph 13 of the written statement, would show that there were only two checking for testing of the meter after installation of new connection in December, 1991, namely the first checking on 5th January, 1992 and the second on 31st January, 1992 after a month's consumption. Besides the above checking. Enforcement Squad made two surprise checking on 4th February, 1992 and 27th June, 1992.

54. The allegation that there was harassment by checking the meter, if the above facts are correct, then the same cannot be sustained. Mr. R. K. Jain has not disputed the said statement of Mr. Sudhir Agarwal. Therefore, the allegation of harassment cannot be substantiated.

55. So far as testing of the meter is concerned, on 6th September, 1998 the petitioner itself got the meter tested by the Electrical Inspector, who by his report dated 22nd September, 1998 recommended replacement of the meter on account of its being defective to the extent 12.35955% faster. After such report, when the electrical meter was sought to be replaced, the plaintiff itself had filed two suits namely O.S. No. 514 of 1992, being the fourth suit and O. S. No. 255 of 1994 being the fifth suit to frustrate the changing of the meter.

56. Checking of the meter is permitted under Regulation 15 of the U. P. Electricity Supply (Consumers) Regulation 1984. The said regulation empowers the officers/employees of the Board to take meter reading on check the premises of the consumer. The Supplier (Licensee) shall be entitled, at all reasonable times on informing the occupier or consumer on the spot, to enter into the premises to which energy is being supplied for the purpose of inspecting the meter and for all other purposes connected with the supply including defect in the meter or supply line or pilferage or malpractice etc. by consumer. The persons, who are so authorised, are also mentioned in the said regulation. The Board's right to check or inspect the meter or installation is recognized in the case of Belwal Spinning Mills Ltd. v. U. P. State Electricity Board, AIR 1997 SC 2793 : (1997 All LJ 1557). In the said case It was held :

It appears to us that Section 20 of the Electricity Act authorises the licensee to enter the premises of the consumer to remove fittings and other apparatus installed by the licensee. Clause (a) of Sub-section (1) of Section 20 authorises the licensee to enter the premises of the consumer for inspecting, testing, repairing or altering the supply lines, meters, fittings and apparatus for the supply of energy belonging to the licensee. The licensee, therefore, cannot only enter the premises of the consumer for inspecting, testing etc. but the licensee also can alter the meter whenever such alteration is needed. Such power under Section 20 does not depend on the adjudication of correctness of the meter and other apparatus by the Electrical Inspector on a reference under Section 26(6) of the Electricity Act. But such power flows from the statutory duties and functions of the licensee to maintain the correct meter for recording quantum of electricity supplied to the consumer. Such duty to ensure maintenance of correct meter in the premises of the consumer has been indicated in Sub-section (1) and Sub-section (2) of Section 26. The power of removing the meter under Section 20, however, is circumscribed by the proviso to Sub-section (4) of Section 26 only when the dispute as to the functioning of the meter has been referred to the Electrical Inspector under Sub-section (6) of Section 26. A licensee is authorised under Sub-section (7) of Section 26 to place in addition to the meter installed in the premises of consumer as referred to in sub-section (1) of Section 26, other meter or apparatus as the licensee deem fit for the purpose of recording or regulating the amount of energy supplied to the consumer. Such power also does not depend on the existence of any dispute as to the correctness of the meter installed.

Check meter is usually installed for the purpose of checking and ascertaining the proper functioning of the installed meter but there is no legal bar for treating the check meter as on altered meter in place of the meter installed earlier when on checking the meter the licensee has found it to be defective, such power of installing the meter replacing it by another meter is also independent of existence of any dispute between the consumer and the licensee.

The expression 'check meter' has no special significance or legal incidence for which there is a bar that check meter cannot be treated as an altered meter, if the licensee intends to replace the defective meter by the check meter. It will be open to the Electrical Inspector to ascertain the correctness of the check meter along with the disputed meter when dispute is referred for adjudication by the Electrical Inspector and the licensee finds its case with reference to check meter. Prior to the amendment of Section 26(6) of Electricity Act, the Electrical Inspector or the competent person specially appointed by the State Government in this behalf had a statutory duty to first determine whether the meter in question was defective and thereafter to estimate the quantity of the electricity consumed during such time as the meter in the opinion of the Electrical Inspector or the competent person shall not have been correct. After the amendment of Sub-section (6) of Section 26, the Electrical Inspector is the only statutory authority to decide the dispute about the correctness of the meter, if such dispute is raised by either of the parties. If the Electrical Inspector on a reference comes to the finding that the meter has ceased to be correct, the said Inspector has a statutory duty to estimate the amount of energy supplied to the consumer or electrical energy 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.

57. The Board had power to check the meter and to do all things necessary for it even to replace by new meter of its own choice, as is clear from Section 26(4) of the Indian Electricity Act, 1910, Rules 47 and 57(4) of the Indian Electricity Rules, 1956, Regulations 15, 21 (iii)(c) and 23(vii) of the Electricity Supply Consumers Regulations, 1984 framed under Sections 49 and 79 of the Electricity Supply Act. 1948. Besides this, the power of checking is also contained in Section 20 and 39(3) of the Indian Electricity Act, as amended in U. P. In writ petition No. 12072 of 1997, Panchsheel Polyclinic v. U. P. S. E. B., decided by a Division Bench of this Court on 24th February, 1998 it was so held in pages 17, 18 and 19 respectively of the certified copy of the order produced by Mr. Agarwal. Under the statute the Board has duty to install and maintain correct meter for the purpose of meter reading and charging the consumer on such basis. If there is any dispute with regard to correctness of the meter under Section 26(6) of the Indian Electricity Act, 1910, Electrical Inspector is the sole authority to adjudicate such dispute and his order is appealable before the State Government under Section 36(2) of the Indian Electricity Act, 1910 read with Rule 6 of Indian Electricity Rules, 1956. No other authority has any power and jurisdiction in respect of meter testing as has been held by the Apex Court in the case of Basanti Bai v. M. P. State Electricity Board, AIR 1988 SC 71 and Benwal Spinning Mills Ltd. v. U. P. State Electricity Board, AIR 1997 SC 2793 : (1997 All LJ 1557) and U.P.S.E.B. v. Atma Steels, 1998 JT (1) SC 313 : (AIR 1998 SC 846). The injunction sought for with regard to changing of electric meter is outside the scope and ambit of Section 39 of the Specific Relief Act.

WHERE THE METER SHOULD BE INSTALLED?

58. Mr. Agarwal contended that the premises of the petitioner is located inside an Industrial estate belonging to the sister concern of the petitioner in such a manner, that in order to reach the meter room, officers of the UPSEB were required to cross a number of sufficiently protected gates which takes a considerable time to reach the meter room preventing any possibility of surprise checking, for which it desired the location of the meter room at the entry point of the industrial estate which is owned and occupied by the sister concern of the petitioner and that there are sufficient space available at the entry point of the industrial estate by the side of the road where meter room should be located.

59. Since Section 26 requires the Board to maintain a correct meter at the entry point, it is open to the Board to install and maintain such meter at the place which can be visited by the officer of the Board at ease as provided in Regulation 21(1). Regulation 21(1) provides that the meter shall be ordinarily installed at the point of entry and in such manner as to make it easier and conveniently accessible to the supplier's representative for the purpose of reading and inspection. Therefore, the Board may ensure installation of such meter at any point at the entry to the premises of the petitioner. Therefore, the petitioner also cannot have any right outside the scope and ambit of the statute to keep the meter installed at a place of his choice. According to the scheme of the statutes, Acts and the Rules and Regulations, it is the choice of the Board as to where the meter should be installed. Therefore, it is open to the Board to install a meter at the entry point selected by it in the premises of the petitioner. In the case of U.P.S.E.B. v. Atma Steels, 1998 (1) JT SC 313 : (AIR 1998 SC 846), it was held that it was well within the power of UPSEB to install the meter at the supply point or to inspect the installation at the receiving point of the consumer where electric meter is situated in view of the observation made in the said judgment to the extent that the Electrical Inspector is empowered under Section 26(7) to take decision with regard to the meter relating to recording of the consumption.

MAINTAINABILITY OF SUITS

60. Demand with regard to additional security was in accordance with Regulation 16 of the 1984 Regulations read with clause (15) IInd proviso of the agreement which provides that if the security amount as stated is found deficient then the supplier shall have power to call for, in its discretion, additional amount of security deposit from the consumer during the continuance of this agreement and that the consumer shall on being required, deposit such additional security amount with the supplier within specified time. Similarly Regulation 16 of the 1984 Regulation confers power upon the Board to disconnect electricity connection of a consumer if he fails to pay the amount of additional security within specified time. Thus, no injunction could be had in respect thereof in view of specific provisions contained in Sections 39 and 41 of the Specific Relief Act.

61. If there is any dispute regarding bill, regulation has provided under Regulation 19(5) of 1984 Regulations remedy which is mandatory. In case there is any dispute or discrepancy in the bill, no suit is maintainable as was held in the case of Amitash Textiles v. U. P.S.E.B. , 1996 (1) HVD 402 paragraph 12 & 14. Section 41(h) of the Specific Relief Act provides that no mandatory injunction shall be granted if equally efficacious remedy is otherwise available to the plaintiff as was laid in the case of Sunil Kumar v. Ram Prakash, AIR 1988 SC 576, Electricity dues being recoverable as arrears of land revenue, the suit restraining the supplier against electricity dues, is not maintainable in view of Section 330 (c) of the U. P. Zamindari Abolition and Land Reforms Act unless the entire amount is paid to the supplier, in view of Section 287A of the said Act as was held in the case of Philibhit Ispat (P) Ltd. v. U. P. State Electricity Board, AIR 1996 All 329. In the said case it was held that the consumer is liable to pay even the minimum consumer guaranteed charges under the Electricity (Supply) Act, 1948, following the decision in the case of Bihar S. E. B. v. Green Rubber Industries, AIR 1990 SC 699. In the said case, it was further held that a suit for prohibitory injunction only for restraining the UPSEB from disconnecting the supply, is not maintainable in the absence of any relief seeking declaration of non-liability, following the decision in the case of Sir Shadi Lal Enterprises Ltd. v. State of U.P., 1995 AWC 443: (1995 All LJ 1517). It was also held in the said decision that an interim order of injunction in respect of dues recoverable as arrears of land revenue without protecting the interest of State Electricity Board is illegal and void.

62. Where the agreement and rules framed under the Act provides complete remedy, no suit is maintainable under Section 9 of the Code of Civil Procedure being impliedly barred as has been held in the case of Punjab State Electricity Board v. Ashwani Kumar, 1997 (5) JT SC 182, wherein it was held that Section 9 of C.P.C. provides that Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is barred. Such suit would not be maintainable. It is true that ordinarily, the civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implications, the cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the instructions issued by the Board in that behalf from time to lime as stated above. In our view as a necessary implication, suit is not maintainable." Similar view was expressed in the case of Calcutta Electric Supply Company Ltd. v. N. M. Banka, 1997 (1) Indian Civil Cases 529 (SC).

63. Interruption in supply can be on account of statutory orders of the Government under Section 22B of the India Electricity Act, 1910. No party is empowered to violate the provisions of such government Orders. Violation of such orders is punishable offence under Section 42 of the 1910 Act. Therefore, consumer cannot ask for injunction for uninterrupted supply irrespective of implementation of the Government Order issued under Section 22B of the 1910 Act. The Board is also empowered to impose penalty for such violation. It was so held in the case of Adony Cotton Mills Ltd. v. Andhra Prakesh State Electricity Board, AIR 1976 SC 2414.

64. A suit seeking injunction restraining the Board from proceeding in accordance with law, cannot be maintained. Such suit is not maintainable" because of its impliedly barred under Section 9 of the C.P.C., it was so held in the case of S. P. Subramanya Shetty v. K. S. R. T. C., 1997 (4) JT SC 594 : AIR 1997 SC 2076.

65. Clause 16 of the agreement provides remedy by way of arbitration. Without availing of remedy by way of arbitration, plaintiff could not have asked for injunction in view of Section 41-A of the Specific Relief Act as was held in Sunil Kumar v. Ram Prakash, AIR 1988 SC, 576, paragraph 28.

66. A suit simply against disconnection is not maintainable as was held in the case of I. N. Mahabaleswara Madyasta v. Karnataka Electricity Board, AIR 1994 Kant 74.

67. When rights and obligations are created under Special statute and whole machinery for redressal of grievances having also been provided in such statute, a suit under Section 9 of the C.P.C. is impliedly barred. The Apex Court in the case Tinsukhia Electric Supply Co. Ltd. v. State of Assam, AIR 1990 SC 123, had so held after it was laid down in the case of Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board, AIR 1972 Ker 47 (FB).

68. The right to purchase and obtain electricity since been governed by special statute and not recognized under the common law, as such general rule contained in Section 9 of the C. P. C. cannot be availed of particularly when exclusive machinery involving technical persons are provided by the consent of parties i.e. in the agreement as well as in the statutory provisions, thereby barring jurisdiction under Section 9 of the C. P. C. impliedly. This was so held in the cases Basti Sahkari Ganna Samiti Ltd. v. Suraj Nath Upadhyay, AIR 1967 All 218, Charan Singh v. The Iqbalpur Co-operative Cane Development Union Ltd., AIR 1975 All 111, M/s. K. S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089, State of Rajasthan v. Gopal Lal, 1981 LIC 774 (Rajasthan), M. M. Yaragatti v. Vasant, AIR 1987 Karnataka 186 (FB), Raja Ram Kumar Bhargava (dead) by LRs v. Union of India, AIR 1988 SC 752 and Jitendra Nath Biswas v. Empire of India and Ceylon Tea Co., AIR 1990 SC 255 : 1990 Lab 1C 308.

ABUSE OF PROCESS - HIGHLIGHTED

69. Respective relief that were sought for in different suits by the petitioner may be compared to find out as to whether the process of the Court has been abused or not. A comparative study of respective prayers in the suits, which is being quoted below, would definitely show that it was almost the same relief which were repeatedly sought for in the repetitive suits. We may now refer to the respective prayers as follows :

15-12-1991 O.S. No. 685/1991 "to issue mandatory injunction in favour of the plaintiff against the defendants directing them not to transfer electric connection 940 KVA of the plaintiff connected with the Sub-station I.T.D., Delhi Road, Saharanpur's Industrial Feeder by changing it to another feeder namely 'Manali Feeder' directly or indirectly through their employees or Police force and to continue electric connection as per enclosed line diagram and be restrained from interfering in continuance of electric connection."

18-6-1992 O.S. No. 380/1992 "to issue permanent injunction in favour of the plaintiff against the defendant that electricity should be supplied to the plaintiffs factory situated at Delhi Road, Saharanpur on every day in a week, 24 hours continuously on 3 phases without creating any obstruction except in circumstances (exceptions) provided in the agreement."

11-8-1992 O. S. No. 490/1992 "to issue permanent injunction in favour of the plaintiff against the defendant that electricity should be supplied to the plaintiffs factory situated at Delhi Road, Saharanpur on every day in a week, 24 hours continuously on 3 phases without creating any obstruction except in circumstances (exceptions) provided in the agreement."

25-8-1992 O.S. No. 514/1992 "A mandatory injunction be issued in favour of the plaintiff against the defendant directing them not to visit plaintiffs factory at Electricity connection of 940 KVA of energy meter installed therein by suing police force contrary to law till the energy meter at the plaintiffs factory is correct and is giving correct reading and is not stopped. If the defendant gives a report adverse then checking under the orders of the Court through the Court be made regarding erratic meter and should be substituted by the energy meter of the same Company and type of the existing meter and should be replaced after its testing and till then electric connection should not be disturbed and should continue as such."

31-5-1994 O.S. No. 255/1994 "A mandatory injunction be issued in favour of the plaintiff against the defendant directing them not to visit plaintiffs factory at Electricity connection of 940 KVA of the Energy meter installed therein by using police force contrary to law as per letter dated 4-5-94 till the energy meter at the plaintiffs factory is correct and is giving correct reading and is not stopped. If the defendant gave a report adverse then checking under the orders of the Court through Court be made regarding erratic meter and should be substituted by the Energy meter of the same Company and type of the existing meter and should be replaced after its testing and till then electric connection should not be disturbed and should continue as such."

6-8- 1997 O. S. No. 409/1997 "to issue permanent injunction in favour of the plaintiff against the defendant directing that they should accept the balance of additional security of Rs. 273815/- in 10 monthly equal instalments and till its deposit electric connection of the plaintiff be not disconnected and be restrained from doing so."

August, 1997 O. S. No. 411/1997 "to issue permanent injunction in favour of the plaintiff against the defendant restraining them from terminating the agreement dated 2-12-1991 and from executing another agreement. Further continue to supply electricity to the plaintiffs factory situated at Delhi Road, Saharanpur every day in the week, 24 hours continuously on three phases and not to create any obstruction in any manner as well by giving connection to other persons on the same feeder beyond the capacity of power connection and in any direct or indirect manner creating obstruction.

December, 1997 O. S. No. 680/1997 "to issue permanent prohibitory injunction in favour of the plaintiff against the respondent directing that they should not construct any high tension supply line over or below 11 KV feeder line coming to the plaintiffs factory M/s. Geeta Pumps Pvt. Ltd., Delhi Road, Saharanpur through its own employees or lineman or any other person and should not execute any construction and be restrained till the Hon'ble Court is not made satisfied with the safety measure completely."

21-1-1998 O. S. No. 43/1998 "to issue permanent prohibitory decree of injunction in favour of the plaintiff and against the defendant restraining the defendant from disconnecting electric connection of 940 KVA which is on SKVA Transformer and is from 33 KV Sub-station I.T.D., Delhi Road, Saharanpur and which is connected from the Industrial feeder on the basis of over load or by imposing penalty or on any other ground without giving the plaintiff reasonable opportunity of hearing at least one month directly or indirectly by themselves or by any of their agent, servants or employee."

70. After having himself being instrumental in obtaining interim order pursuant to which the electric supply was disturbed by account of removal of the meter by the Court's Amin by Court's order, the petitioner had filed on 6th May, 1998, Criminal Contempt Petition No. 36 of 1998 for violation of the order dated 8th April, 1998 passed in O. S. No. 255 of 1994. He had also moved three writ petitions namely, writ petition No. 12687 of 1998, disposed of on 10th April, 1998, writ petition No. 13302 of 1998 disposed of on 16th April, 1998. These two writ petitions were filed in respect of the proceedings in O. S. No. 409 of 1997 and O. S. No. 490 of 1992, whereas writ petition No. 14253 of 1998 disposed of on 23rd April, 1998 was connected with O. S. No. 514 of 1992, for the respective relief, with which we are now concerned.

71. The above facts indicate that the petitioner had been seeking almost identical relief in each and every suit in one or the other way connected with each other. Those relief are also contrary to law and the procedure as would be apparent from the discussion made hereinbefore.

72. The Court had also sometimes granted relief virtually granting the whole relief claimed in the suit in the form of an interim order and sometimes even more than the relief asked for which would be apparent from the respective relief granted.

73. Section 39 of the Specific Relief Act provides that mandatory injunction shall be granted to prevent breach of obligation. Whereas in the present case mandatory injunction were sought for to compel the Board to commit breach of obligations as contained in the Load Sanction Letter as well as under the agreement and statutory provisions respectively.

74. In Clause (1) proviso of the agreement itself provides that the supplier shall not be responsible for damages or otherwise on account of accidental interruption or stoppage or curtailment or diminution in the supply of energy, as a result of any order or directions issued by the Government of Uttar Pradesh in resulting from fire, flood, tempest or any extent or from any strike, lock out or from any other cause beyond the control of the supplier but the supplier shall make every effort to restore supply as soon as possible. It is also so provided in Regulation 14(2) of the U. P. Electric Supply (Consumers) Regulation 1984. It appears that the suits were filed merely on the basis of apprehension without any cause of action and there was nothing either pleaded or shown to the Court that the Board had breached any of the conditions.

75. From the discussions above, it is evident that the petitioner had abused the process of law and that the Courts had not kept itself within its bounds. The instance that has been set up by the initiation of these group of cases and the manner in which those have been conducted by the petitioner, to which the Court had been a party in abetting the same, shows that it is high time that a stock of the situation is to be taken. At the same time, when it comes to the notice of the High Court, it cannot remain idle onlooker and allow the judicial process to drift away from its judicial norms and its process are abused. Article 227 of the Constitution has empowered the High Court to exercise power of superintendence over the subordinate Courts. If the High Court is, of opinion, when it comes to its notice, that the process of the Court are being abused or that the Courts are not keeping itself within its bounds and that, on facts, it is a case that a party is overriding the judicial process and the Courts are aiding and abetting in such abuse of process and have failed to maintain the judicial dignity and proper judicial approach in that event, the High Court may invoke its power of superintendence under Article 227 of the Constitution of India. If it, is apparent on the face of record that the Courts had failed to keep itself within its bound and had exceeded its jurisdiction and indulged in proceeding in an unprecedented manner bringing in judicial anarchy, procedural disaster in blatant disregard of the accepted principle of law, assuming jurisdiction though it ought not to have assumed, exceeding its jurisdiction, in such cases. It is the duty of the High Court to see that the purity of justice, dignity of the judicial institution is restored and preserved.

76. It is an institution where the people repose faith. It is the justice, which this institution dispenses. It is the confidence of people, who approach the judiciary, that it commands. It is the sanctity, which strengthens the justice-delivery-system. These are the foundations on which the entire system is founded. If this foundation is allowed to be eroded then no sooner the edifice of justice will crumble down. People will lose faith. People will lose confidence. People will doubt the sanctity. The dignity of the institution will fall in the estimation of the people. Such a situation would hit at the root of the essentiality of the existence of the institution itself. It is the duty of the High Court to see that the institution survives with all its sanctity and dignity commanding faith and confidence of the people in it.

77. The instrumentality under Article 227 is an essential weapon, provided to the High Court through wisdom of the founding fathers of the Constitution, to be used whenever it is needed according to the need of the hour. It can be used and utilised to defend as a shield or offend as a sword, if necessary, even to the extent of calling for records, which are not even challenged before the High Court, whenever it comes to its notice that it is necessary so to do. If situation warrants, in order to keep the Courts within its bounds, in order to prevent abuse of process, in order to preserve the sanctity, restore the dignity, maintain the faith and inspire confidence of the people in it, the High Court may even quash the plaint or the proceeding in appropriate cases.

78. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997 (8) JT SC 705 : (AIR 1997 SC 914), it was held that the High Court in exercise of the power under Article 226/227 of the Constitution of India is empowered to quash the plaint in order to prevent abuse of the process of law and Courts. In the said case, it was held :

"21. The questions which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it took of the law and the facts of the case. We have, thus, to examine the power of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code.

22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal, 1990 (4) JT SC 650 : (AIR 1992 SC 604) : 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of the Court laying down principles of the exercise of powers by the High Court under Articles 226 and 227 may be referred to.

23. In Waryam Singh v. Amarnath, AIR 1954 SC 215 : 1954 SCR 565, this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate Courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193(SB), where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case, which called for an interference by the Court of the Judicial Commissioner, and it acted quite properly in doing so.

24. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte, AIR 1975 SC 1297 : (1975) 1 SCC 858, this Court again reaffirmed that the power of superintendence of High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate Court or tribunal and that its function was limited to seeing that the subordinate Court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, "as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings." The Court referred with approval the dictum of Morris, L.J. in Rex v. Northumberland Compensation Appeal Tribunal, 1952 1 All ER 122.

25. In Nagendra Nath Bora v. The Commissioner of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398), this Court observed as under:

"It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with order of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority".

26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.

27. We have not been able to understand as to why it was necessary for the appellants to implead the first respondent as a party to the proceedings. There are no allegations of personal bias against the presiding officer. A Court is not to be equated with a tribunal exercising quasi judicial powers. We would, therefore, strike out the name of the 1st respondent from the array of the parties.

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach adjust conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appear before the Court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage, which is said to be adulterated. The only allegation is that the appellants are the manufacturers of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A. K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of Clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also set out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (Clause (8)(1)(b)). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in details to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (WAKF) Delhi v. The Union of India (AIR 1965 SC 1167: (1965) 2 SCR 192), an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.

30. It is no comfortable thought for the appellants to be told that they could appear before the Court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no ease against them. It is certainly one of those cases where there is an abuse of the process of the law and the Courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Article 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."

79. In the case of Shyama Devi v. 7th Additional District Judge, Allahabad. AIR 1998 All 392, it was held that in case of abuse of the process of Court, it is open to the High Court in exercise of the jurisdiction under Article 226/227, at its discretion, in an appropriate case, to quash the plaint and set aside the proceedings thereout, relying on the decision in the case of Raj Kapoor v. Civil Judge, Kanpur 1987 ALJ 137 : 1988 All LJ 358.

80. The High Court is empowered to quash the complaint and the suit proceedings in exercise of power under Articles 226/ 227 of the Constitution of India. It was so held in the case of Bishwanath Malik v. Munsif Magistrate, Allahabad, 1996 (27) ALR 475: (1996 All LJ 1032), Smt. Mahadevi v. Civil Judge, Farrukhabad, 1987 (1) ARC 406 : (1987 All LJ 870), Gulab Chandra v. Munsif West, Allahabad, 1988 (14) ALR 265 and in the case of Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur 1987 ALR 137 : (1988 All LJ 358). Even if relief is not sought for, yet necessary orders can be passed by the High Court if circumstances so required. It was so held in the case of Badruddin & Party v. State of U. P., 1992 (2) ALR 731.

81. In the cases of Municipal Corporation of Delhi v. Kamla Devi, AIR 1996 SC 1733, Natwar Textile Processors Pvt. Ltd. v. Union of India, AIR 1995 SC 2256, Amitabh Bachchan Corporation Ltd. v. Mahilajagran Manch, 1997 (10) JT (SC) 686 and in the case of Union of India v. Darshaha Devi, 1996 (2) SCC 681 : (AIR 1997 SC 166), it was so held that if there was an abuse of process of law, the Court may award exemplary penalty. This view can be interpreted to mean that the penalty may be in the form of quashing of the plaint and the whole proceedings or to take any other step it may deem fit and proper in a given circumstance.

82. Article 227 may not require making of an application in order to enable the High Court to invoke such jurisdiction. It can even invoke such jurisdiction whenever it is of the opinion that the power of superintendence requires to be activated in a given situation that comes to its notice. While invoking power of superintendence, the High Court may call for the records, it may examine the same and pass appropriate orders as it may think just and proper. But the only embargo in its exercise is that no adverse order could be passed against a party unless he is given an opportunity and heard. Before passing appropriate order in exercise of its power of superintendence, it is incumbent on the High Court that the parties involved should be given an opportunity to place their cases before the Court. Only after hearing them and examining the record, if there are materials to lead to the formation of an opinion by the High Court that the situation demands invoking its jurisdiction under Article 227, in that event, it may exercise it and pass necessary order as in its opinion is just and proper. It can do so even without an application. The High Court has also the power to treat an application under Article 226 as one under Article 227 of the Constitution of India as is held in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997 (8) JT (SC) 705 : AIR 1997 SC 914.

83. In the circumstance as discussed it is a case fit for invoking the power of superintendence under Article 227 of the Constitution of India after examining the records and hearing the parties. Accordingly the jurisdiction is so invoked and the plaints in Original Suits No. 685 of 1991, 380 of 1992, 490 of 1992, 514 of 1992, 255 of 1994, 409 of 1997, 411 of 1997, 680 of 1997, 43 of 1998 and Original Suit No. 263 of 1998 pending before the respective Courts at Saharanpur together with the proceedings of the suit, are hereby quashed. This order, however, shall not prevent the parties to espouse their cause if they are so advised before the appropriate forum in accordance with law.

84. In the result, this writ petition of 18669 of 1998 is disposed of as above.

85. Before parting with the case, it would be proper that appropriate observation should also be made with regard to the demeanour of the parties involved in the process as hereinafter.

MISDEMEANOUR OF THE COURT

86. It may, however, be noted from the various orders passed in the respective suits that the Courts had been granting successive interim orders. Sometimes, granting something more than what is asked for as would be apparent from the interim order granted in the sixth suit, O.S. No. 409 of 1997. In as much as in the said suit, the petitioner had prayed for ten monthly installments for the payment of all the arrears of additional security of Rs. 2,73,815/-whereas the interim order was granted permitting the petitioner to deposit 1/4th of the said arrears and to furnish security for the rest and thereby, stayed the realisation of the balance 3/4th amount when there was no dispute with regard to the amount. If ten monthly installments were granted, by this time, the amount would have been cleared. The petitioner had never asked for any such relief. The Court appears to have gone out of its way to grant extraordinary relief to the petitioner even though not asked for.

87. Then again, the interim orders passed in O.S. No. 255 of 1994 on 21st February, 1998 directed the Board to remove the meter installed at the Sub-station of the Board and to inform the Court accordingly and also further directed to remove the additional feeder line from the petitioner's premises. It had also directed by an order dated 1st April, 1998, the Court Amin to disconnect the meter installed at the sub-section of the feeder line and submit a compliance report to the Trial Court. Pursuant to which the Court Amin removed the meter at the substation after disconnecting the supply of the petitioner and submitted compliance report to the Court. On 7th April, 1998, the Court had passed another order directing the Court Amin to ensure restoration of electric supply to the petitioner's feeder line. It is beyond all comprehension to imagine as to how a meter at the sub-station of the Board could at all be directed to be removed and that too, by a Court Amin, who has no idea about the fundamentals of supply of electricity and how a non-technical man could be directed to remove the meter or to restore electric supply. Thus is appears that the Court has acted beyond all comprehension of judicial norms. It is only outside the scope and ambit of the jurisdiction of the Court but also something extraordinary beyond all judicial concept. The Courts are not omnipotent to pass any kind of order in whatsoever manner it likes.

CORRECTIVE MEASURE

88. It is high time that the officer or officers who ever had passed these orders should be asked to explain his conduct. The learned Registrar is, hereby, directed to obtain proper materials and place the matter before then Administrative Committee within 3 months from this case, for the purpose of drawing up appropriate proceedings against such officers, whose action is atrociously scurrilous to and contemptuously destructive of the justice delivery system. If such things are allowed to continue, it will not only bring disrepute to the judiciary but also destroy the entire fabric and as such, are liable to be appropriately dealt with. Which fact should be considered by the appropriate authority for appropriate action as and when the papers are placed before the authority by the learned Registrar as directed hereby.

RESPONSIBILITY OF THE BAR

89. In the Indian judicial system which follows the Anglo section judicial process, the entire edifice of the judicial institution stands on two main pillars, namely, the Bar and the Bench. These two pillars support the justice delivery system, the edifice whereof would be misplaced if one of them is weak or non-dependable. If both become non-dependable then the entire system would crumble down. Therefore, every care and caution has to be taken for weeding out such weaknesses, which might endanger the strength and existence of the system. These are such elements the presence whereof in the pillar would jeopardise its whole existence by polluting the whole atmosphere. If the justice delivery system is to survive, it has to save itself from the on slaughts from within. If the strength within the pillar is subverted, it cannot survive the onslaught from outside. The pillar would become self-destructive and subverting. The responsibility for maintaining such strength rests not on the judicial officers alone but also on the Bar as well. The members of the Bar are as much part of the judicial process and the justice delivery system as such the judicial officers are. The lawyers are officers of the Court and they are supposed to assist the Court. The lawyer cannot place himself on the same footing of an original ligitant. It is for him to advise such litigants to proceed within the scope and ambit of the legal system and not to do something, which might result into the abuse of the process of law or subvert the whole judicial system.

90. In the present case, it appears that all the suits were being conducted by the petitioner through one and single learned lawyer who had also assisted Mr. Ravi Kiran Jain in this Court. It is apparent from the record and facts that the said learned lawyer was instrumental in the process of subversion as indicated hereinbefore and it is he who had been instrumental and the main component through whom the petitioner could muster courage to abuse the process of law. It was his responsibility to advise the petitioner correctly or to bring the said facts to the notice and knowledge of the Court. The above facts reveal a very sorry state of affairs, which indicates not only the failure on the part of the learned lawyer to assist the Court but also, his direct involvement in the abuse of the process of law. Unless demeanor of such lawyers is hauled up, a time will come when it will be free for all and the Court would not be able to depend on the counsel.

CORRECTIVE MEASURE

91. It is high time that the steps should be taken against such erring lawyers to put them on the right track. The learned Registrar is, hereby, directed to take steps for seeking adequate materials with regard to the part played by the learned lawyers in the present case and place them before the Bar Council for taking appropriate steps. This Court expects that the Bar Council would activate itself and come to the assistance of the judiciary in discharging its own obligation.

92. The learned Registrar may depute, if he is so advised an Officer-on-Special Duty for collecting adequate materials for the purpose in connection with the present case as observed earlier. It would be open to him to highlight to any other materials if available against such officers for being placed before the Administrative Committee.