1. This First Appeal is filed by the present appellant- original plaintiff-Paschim Gujarat Vij Company Ltd. being aggrieved and dissatisfied with the judgment and decree dated 21-10-2010 passed by the learned 2nd Additional District Judge, Surendranagar in Regular Civil Suit No.310 of 2009 whereby the suit filed by the plaintiff was dismissed with costs.
2. The facts in short are that a surprise check was made by the officers of the appellant Vij Company at the premises of the respondent when it was found that although the respondent was not a regular consumer of the Company, he was found to have been using electricity power from low voltage line by direct phase and neutral cable and, therefore, a complaint was lodged and a statutory notice was issued on 21-4-2008 for Rs.35,300/-. Since the respondent did not make payment, a suit being Regular Civil Suit No.310 of 2009 was filed by the original plaintiff before the Court of 2nd Additional District Judge, Surendranagar for recovery of Rs.35,300=49 together accrued interest @ 18%. After giving opportunity of hearing to the parties concerned, said suit was dismissed which is giving rise to the present First Appeal.
3. Heard learned advocate, Mr.S.P.Hasurkar for the appellant. The respondent did not appear either personally or through advocate though duly served.
4. It is mainly submitted by learned advocate, Mr.Hasurkar for the appellant that impugned judgment and decree passed by the trial court is contrary to law and evidence on record. It is further submitted that the trial court has not appreciated the fact that all necessary documents which were produced on record by the appellant were never objected to by the respondent. Relying on a decision of this Court reported in 2008(3) GHR page 2026 in the case of Gopalbhai Chandubhai Rana Vs. State of Gujarat, it is submitted that the statement made before the office of Electricity Company and the evidence of rojkam are admissible in evidence. It is further submitted that trial court has not properly appreciated the fact that the officer of appellant, Shri D.P.Makwana, Deputy Engineer has filed affidavit and proved the facts stated in the plaint. It is further submitted that another reason for dismissal of the suit was of alternative remedy available under Sec.154(6) of Electricity Act. In this connection, it is submitted that the purpose of present suit and criminal proceedings are totally different wherein degree and proof for coming to the conclusion of conviction would be stricter which would be paramount considering while deciding civil liability. According to him, in the present case, the respondent was not a consumer of the appellant but since was caught while committing theft of electricity power, he was a deemed consumer and hence was issued with the electricity bill under the Electricity Act. In view of the above, trial court has committed a grave error in dismissing the suit of the plaintiff. It is therefore requested that the impugned judgment and decree be quashed and set aside and appeal be allowed.
5. This Court has gone through the impugned judgment and decree of dismissal and the reasonings assigned thereto by the trial court. This Court has also taken into consideration the relevant documents and other evidence on record together with the decision relied on by the learned advocate for the appellant.
6. In order to substantiate the claim advanced by the original plaintiff, there is an affidavit affirmed by Shri D.P.Makwana, who is the Deputy Engineer of the plaintiff Company. It was stated therein that he and other members of flying squad inspected the place of Phulgam. There are other documentary evidence placed on record of the case from Exs.14 to 26 with regard to the claim of the plaintiff. However, all these facts have not been denied by the respondent either by filing reply or by cross examining the said Officer of the Company. Hence, the entire evidence of plaintiff remained uncontroverted and unchallenged. Therefore, there was no reason for the trial court for dismissing the claim made by the plaintiff. The reasonings assigned and conclusions arrived at by the learned trial court are improper and hence, the impugned judgment and decree passed by the learned Judge deserve to be quashed and set aside and appeal requires to be allowed.
7. In view of the above, the appeal is allowed. The impugned judgment and decree dated 21-10-2010 passed by the learned 2nd Additional District Judge, Surendranagar in Regular Civil Suit No.310 of 2009 is hereby quashed and set aside and the respondent- original defendant is directed to pay Rs.35,300=49 to the appellant-original plaintiff with interest @ 12% per annum from the date of filing of the suit till realisation. There shall be no order as to costs.
[M.D.SHAH,J.] radhan