1. This appeal under section 100 of the Code of Civil Procedure is by the original defendant against whom the respondent-original plaintiff filed Regular Civil Suit No.17 of 1989 for recovery of Rs.5730.00 from the defendant. It is the case of the plaintiff that the plaintiff was the subscriber of Telephone Connection No. 2172 of the defendant and though the plaintiff had not made STD Calls, still, the defendant served bills to the extent of Rs.5960.00. It is further case of the plaintiff that the plaintiff had already brought to the notice of the defendant that the plaintiff had not made any calls but because of the defects in the machine of the defendant, there was wrong recording of the calls alleged to have been made by the plaintiff. Thus, the plaintiff sought declaration that the bill issued by the defendant was illegal and improper and for prayer to recover the amount paid by the plaintiff under the bills.
2. The suit was resisted by the defendants and it was stated that the plaintiff used to run Bharat Type Writing Institute and has used his telephone connection for making different calls and on the basis of the same, the plaintiff was issued with a bill for the aforesaid amount. It was stated that there was no defect in the machine of the defendant for the purpose of recording of the calls made by the plaintiff. Defendant also raised objection against maintainability of the suit in the civil court. The trial Court on appreciation of the evidence, allowed the suit of the plaintiff and passed decree holding the bill issued by the defendant as illegal and ordered for giving adjustment of the bill amount in the other bills raised against the plaintiff.
3. The appellant unsuccessfully carried the matter before the first appellate court by filing Regular Civil Appeal No. 126/93. The learned appellate Judge came to the conclusion that it was not proved that the plaintiff had used STD Facility and the bill issued to the plaintiff was excessive. Learned appellate Judge also came to the conclusion that considering the earlier average bill of the plaintiff, the bill under challenge before the Court was appearing to be illegal and the learned appellate Judge further observed that even if no defect is found in the machine of the defendant, however, possibility of false metering cannot be ruled out. On such reasoning, the learned appellate Judge ultimately concurred with the finding recorded by the learned trial Judge and dismissed the appeal by judgment and decree dated 30th September, 1994. It is this judgment and decree which is under challenge in this appeal.
4. This appeal was admitted by order dated 26.3.1997 on the following substantial questions of law :
(1) Whether on the facts and in the circumstances of the case, both the Courts have substantially erred in law in entertaining the suit filed by the respondent in view of the provisions of section 7-B of the Indian Telegraph Act, 1885?
(2) Whether on the facts and in the circumstances of the case, Civil Court has jurisdiction to try the suit instituted by the respondent in view of the decision of Division Bench in the case of Govind Premji Chovatia v/s. Chief General Manager, Gujarat Telecom Circle and others, 1996(1) G.L.R. 413?
(3) Whether on the facts and in the circumstances of the case,, both the Courts have substantially erred in law in holding that the suit filed by the respondent was maintainable, though no notice u/s. 80 of C.P.C. was served on the appellant?
(4) Whether on the facts and in the circumstances of the case, both the Courts have substantially erred in law in not placing reliance on the investigation report prepared by the Junior Telecom Officer, Telecom Circle, Patan on the ground that the Junior Telecom Officer who prepared the report, was not examined as one of the witnesses?
(5) Whether on the facts and in the circumstances of the case, both the Courts have substantially erred in law in holding that bill dated January 1, 1989for Rs.5960/- issued by Telecom Department is illegal,excessive, arbitrary and not binding on the respondent?
5. Learned advocate Mr. Dave appearing for the appellant has submitted that the Courts below ere not justified in entertaining the suit of the plaintiff in view of the provisions of section 7-B of the Indian Telegraphs Act, 1885. He submitted that the Hon’ble Division Bench of this Court has already taken a view that the Civil Court has no jurisdiction to try the suit for challenging the telephone bill which is the issue in the present case. He submitted that the second substantial question of law formulated by this Court is on the basis of the decision of this Court in the case of Govind Premji Chovatia v/s. Chief General Manager, Gujarat Telecom Circle and others, 1996(1) G.L.R. 413. Relying on the said decision, learned advocate Mr. Dave for the appellant submitted that the Civil Court having no jurisdiction, the judgment and decree passed by both the Courts below holding the bill issued by the defendant as illegal are required to be quashed and set aside. Learned advocate Mr. Dave further submitted that the courts below have otherwise also committed serious error in not considering the investigation report submitted by the competent authority in respect of the metering of the calls of the plaintiff. He submitted that it is not open to the Civil Court to sit in appeal over the decision of the competent authority which was on the basis of the investigation carried by the expert body and the officers of the defendant.
6. As against the above arguments, learned advocate Mr. Adeshara for the respondent submitted that the Courts below have on appreciation of evidence, recorded finding of fact to the effect that the plaintiff had not made any STD Calls as alleged and, therefore, there was no question of raising bill for the amount of Rs.5780.00 by the defendants. He submitted that the Courts below on appreciation of such evidence, found that not only the bill in question was not matching with the average bill for the earlier months but also there was no calls made by the plaintiff from the instrument of telephone as alleged by the defendant. He submitted that once on such appreciation of evidence, if it is found that the plaintiff is not liable to pay the amount as per bill, this court may not interfere with the judgment and decree passed by the courts below as no substantial question of law as suggested by the learned advocate has arisen for consideration of this court. Learned advocate Mr. Adeshra however submitted that since the Courts below have on examination of the evidence found that the plaintiff has been done with great injustice in the matter of issuance of bill for the calls which were never made by the plaintiff and since the decision rendered by the courts below were prior to the declaration of law made by this court in the above said case of Govind Premji Chovatia (supra), this court may not disturb the impugned judgment and decree passed in favour of the plaintiff.
7. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below, with the R&P, it appears that the courts below have dealt with the bill issued by the defendant and found on the basis of appreciation of evidence that the plaintiff was not liable to pay the amount of such bill. However, when the suit was decided, provisions of section 7-B of the Indian Telegraphs Act, 1885 were very much applicable to the case of the plaintiff. Decision of the Hon’ble Division Bench of this Court though rendered after the judgment and decree passed by the courts below, but the decision is declaration of law which was already prevailing by virtue of sec. 7-B of the Act when the suit was decided. Hon’ble Division Bench has construed such provisions and declared that by virtue of such provisions, civil court is divested with its power to entertain the suit in respect of the bill issued by the defendant. It is held by the Hon’ble Division Bench of this Court in the said decision that the remedy available to the person like plaintiff who is subscriber is to make reference to the arbitrator and the civil court has no jurisdiction to entertain the suit in respect of such dispute. From the said decision reference to the following paragraphs is required to be made as under:
“8. In our opinion, sec. 7B of the Act has to be widely construed. Section 7B, like any arbitration clause, provides that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided, the dispute would be determined by arbitration. A dispute with regard to the recording of the calls would necessarily fall within the ambit of Sec.7B of the said Act. In this connection, we are fortified by the decision of the different High Courts, which have held that the provisions of Sec. 7B of the Act would be applicable. .....
9. The learned single Judge was, therefore, right in coming to the conclusion that an adequate alternative remedy, under the Telegraphs Act by way of arbitration was available. In fact, due to the existence of Sec. 7B, even the jurisdiction of the Civil Courts under Sec. 9 of the Code of Civil Procedure would be regarded as impliedly ousted. Therefore, even a Civil suit challenging the correctness of the bills so raised would not be maintainable in a Civil Court ”
8. In view of the above said provisions of law and the law declared by the Hon’ble Division Bench of this Court, I am of the view that when the plaintiff filed the suit, there was already provisions for referring the dispute under section 7-B of the Act and, therefore, even if the decision was rendered by the Division Bench subsequent to the judgment and decree passed by the courts below, the Civil Court was not having the jurisdiction as interpreted by the Hon’ble Division Bench in the said decision. I am therefore of the view that the suit of the plaintiff was clearly barred and the Civil Court had no jurisdiction to entertain suit of the plaintiff by virtue of section 7-B of the Indian Telegraphs Act, 1885. On this ground of jurisdiction alone, judgment and decree passed by the Courts below are required to be quashed and set aside.
9. In view of the above, this appeal is allowed. The judgment and decree passed by the Courts below are quashed and set aside. At this stage, learned advocate Mr. Adeshra requests that in view of the declaration of law made by the Hon’ble Division Bench of this Court in Govind Premji Chovatia (supra), respondent may be permitted to refer the dispute to arbitrator in respect of the bill in question under sec. 7-B of the Indian Telegraphs Act, 1885. This Court was concerned to decide the above substantial question of law formulated by this court while admitting the appeal. However, if at this stage it is open to the respondent to avail of the remedy by making reference under section 7-B of the Indian Telegraphs Act, 1885, the respondent may avail such remedy.
anvyas Sd/-
(C.L.SONI, J.)