1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant – original defendant to quash and set aside the impugned judgement and decree passed by the learned trial court – learned Second Additional Senior Civil Judge, Amreli in Special Civil Suit No. 123 of 2003 dtd.28/3/2011, by which the learned trial court has partly allowed the said suit preferred by the respondent herein – original plaintiff and passing decree for an amount of Rs.2,34,130.47 ps. with simple interest at the rate of 6% to be recovered from the appellant – original defendant. The appellant – original defendant has also prayed to quash and set aside the Judgement and Order passed by the learned appellate court - learned Additional District Judge, Amreli in Regular Civil Appeal No. 19 of 2011 by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court. 2.00. That the respondent herein – original plaintiff issued supplementary bill against the appellant – original defendant of Rs.1,82,203.47 ps. on the ground that on checking by the vigilance squad, electricity theft by the defendants has been found. That though the said supplementary bill was served upon the defendant and even thereafter also notice was issued upon the defendant to make the payment of the supplementary bill, the defendant neither challenged the said supplementary bill / notice nor paid the amount under the supplementary bill and therefore, the respondent herein – original plaintiff instituted Special Civil Suit No. 123 of 2003 for recovery of Rs.2,34,130.47 ps. from the plaintiff. Nobody appeared on behalf of the defendant and therefore, the suit proceeded ex-parte. On appreciation of evidence, the learned trial court decreed the suit partly by final decree for an amount of Rs.2,34,130.47 ps. with interest at the rate of 6% per annum on the same from the date of filing of the suit till realization and did not grant relief at the rate of 18% per annum as claimed by the plaintiff. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court - learned Second Additional Senior Civil Judge, Amreli in Special Civil Suit No. 123 of 2003 dtd.28/3/2011, appellant herein – original defendant preferred an appeal before the learned District Court, Amreli and the learned Additional District Judge, Amreli by the impugned Judgement and Order has dismissed the said Regular Civil Appeal No. 19 of 2011 confirming the judgement and decree passed by the learned trial court. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by both the courts below, appellant herein – original defendant has preferred present Second Appeal under section 100 of the Code of Civil Procedure.
2.01. The appellant herein – original defendant has also preferred Civil Application No. 7098 of 2012 for production of the additional evidence and Civil Application No. 6965 of 2012 for stay.
3.00. Mr.Ashish Dagli, learned advocate appearing on behalf of the appellant has vehemently submitted that both the courts below have materially erred in passing decree for an amount of Rs.2,34,130.47 ps. towards supplementary bill which was issued on the ground of theft of electricity by the defendant. It is submitted that as such the plaintiff has failed to prove that there was theft of electricity by the defendant. Therefore, it was submitted that both the courts below have materially erred in passing decree Rs.2,34,130.47 ps. It is further submitted that as such as per the Circular issued by the State Government, payment of the Bill on behalf of the Panchayat about the consumption of the electricity is paid by the State Government and therefore, there is no question of theft by the defendant.
By making above submissions it is requested to admit/allow the present Second Appeal.
4.00. Heard Mr.Dagli, learned advocate appearing on behalf of the appellant – original defendant and considered the impugned Judgement and Orders passed by both the courts below.
5.00. At the outset, it is required to be noted that the appellant – original defendant has not contested the suit and has never appeared before the learned trial court and eve he has also not filed Written Statement.
5.01. Apart from the above, it is not in dispute that the suit was filed by the respondent herein – original plaintiff – Electricity Company for recovery of amount of supplementary bill on the ground that the defendant has committed theft of electricity. It is not in dispute that though the supplementary bill and the notice was served upon the defendant, they never challenged the supplementary bill before the appellate committee as provided under the Conditions of Supply for Electrical Energy.
5.02. Under the circumstances, when the defendant did not challenge the supplementary bill before the appellate committee as provided under Conditions of Supply for Electrical Energy and when the supplementary bill was issued considering ABCD Formula as contained in Clause 34 of the Conditions of Supply for Electrical Energy and considering the aforesaid decision of the Hon'ble Supreme Court as well as the decision of the the Division Bench, no illegality has been committed by the learned trial court in passing decree for an amount of Rs.2,34,130.47 ps. (under the supplementary bill) and that too at the rate of 6% per annum only, the learned appellate court has rightly confirmed the judgement and decree passed by the learned trial court. Even otherwise, no substantial question of law arise in the present Second Appeal. In the facts and circumstances of the case, there is no substance in the present Second Appeal and the same deserves to be dismissed.
5.03. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed.
6.00. In view of dismissal of the main Second Appeal, no orders in Civil Application No. 6965 of 2012 as well as Civil Application No. 67098 of 2012 and both the Civil Applications are also consequently dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik