This second appeal has been filed against the judgment and decree, dated 26.11.1991, made in A.S.No.56 of 1991, on the file of the Sub Court, Gopichettipalayam, reversing the judgment and decree, dated 29.3.1991, made in O.S.No.538 of 1987, on the file of the District Munsif Court, Sathyamangalam.
2. The brief facts of the case, as stated by the appellant, are as follows:
The sanctioned load for the service connection No.395, for Sri Karthikeya Mills, run by the respondent/plaintiff, was 129 H.P. + 2.4 K.W. On 7.7.1986, the Anti Power Theft Squad had made a surprise inspection and it had found that the respondent/plaintiff had connected the machines of the Mills, for a total load of 153 H.P. + 16.4 K.W. As such, there was an unauthorised additional load of 24 H.P. connected to the machines. Therefore, the appellant Electricity Board had issued a letter, dated 14.7.1986, informing the respondent/plaintiff that the service connection would be disconnected from 22.7.1986. Against the said notice the respondent/plaintiff had filed a suit, in O.S.No.530 of 1987, for a declaration to declare that the respondent/plaintiff had not used unauthorised additional load. The suit which was originally numbered as O.S.No.597 of 1986, on the file of the District Munsif Court, Gobichettipalayam, had been transferred to the District Munsif Court, Sathyamangalam, and it was re-numbered as O.S.No.530 of 1987.
3. Subsequently, an initial assessment notice, dated 19.7.1986, assessing Rs.2,42,246/-, as the loss caused to the appellant Electricity Board, had been issued to the respondent in the present second appeal, directing him to pay a sum of Rs.1,21,173/-, being 50% of the total assessed loss, within a period of 15 days. Challenging the said notice the respondent had filed another suit, in O.S.No.538 of 1987, for a declaration to declare that there was no unauthorised additional load and for a mandatory injunction, restraining the appellant Electricity Board from disconnecting the service connection, pursuant to the notice, dated 19.7.1986. Originally, the said suit had been filed and numbered as O.S.No.625 of 1986, on the file of the District Munsif Court, Gobichettipalayam. Later, the suit had been transferred to the District Munsif Court, Sathyamangalam and re-numbered as O.S.No.538 of 1987.
4. Based on the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration:
"1) Whether the plaintiff in the suit is entitled to the relief of declaration and for permanent injunction?
2) What other reliefs the plaintiff is entitled to?"
5. Both the above mentioned suits had been tried together and the trial Court, after considering the contentions raised on behalf of the plaintiff, as well as the defendant in the said suits, had found that one Mayilsamy, the Supervisor of Sri Karthikeya Mills, who was present at the time of the inspection by the Anti Power Theft Squad, on 7.7.1986, had given a letter on behalf of the Mills that certain machines had been connected with electricity at the time of the inspection. It had also been admitted that the total load connected at the time of the inspection was 153 H.P. and 16.4 K.W. The said letter had been marked as Ex.B-4. The trial Court had held that, since Mayilsamy, who was P.W.1, had accepted his signature on the letter, the onus was upon the respondent to prove that it was obtained under threat. The trial Court had also held that the suits had been filed, prematurely. The suit, in O.S.No.538 of 1987, had been filed against the initial assessment notice, dated 19.7.1986, and the suit, in O.S.No.530 of 1987, had been filed only for a declaration. Since the respondent had not exhausted the appeal remedies available under the terms and conditions of the supply of electricity, before filing the suits, the said suits had been dismissed by the trial Court, by a common judgment and decree, dated 29.3.1991.
6. Aggrieved by the judgment and decree of the trial Court, dated 29.3.1991, the plaintiffs in the said suits had filed two first appeals, in A.S.No.56 of 1991, as against O.S.No.538 of 1987, and A.S.No.57 of 1991, as against O.S.No.530 of 1987, on the file of the Sub Court, Gobichettipalayam.
7. The First Appellate Court had framed the following points for consideration "1. Whether the plaintiff had utilised additional load of electricity?
2. Whether both the suits are premature in nature?
3. Whether the plaintiff is entitled to the reliefs sought for in the suits?"
8. During the pendency of the first appeal the respondent/plaintiff had filed a writ petition, in W.P.No.2159 of 1988, for conversion of the service connection, from low tension service to high tension service. The writ petition had been disposed of, on 8.7.1988, with a direction to process the application of the respondent and to provide high tension service, if the application was in order, without reference to the alleged malpractice by the respondent. Further, the respondent had been directed to deposit a sum of Rs.1,21,173/-, the amount demanded in the notice, dated 19.7.1986. The said amount had been deposited before the Sub Court, Gobichettipalayam, and it had been withdrawn by the appellant Electricity Board during the month of August, 1988.
9. The lower Appellate Court had allowed the appeals on the ground that the appellant Electricity Board had failed to prove that the letter, marked as Ex.B-4, had been returned by P.W.2 on behalf of the Mills since he had only admitted his signature on the letter. The burden of proving the letter, marked as Ex.B-4, was upon the appellant Board. Further, it was held that there was no unauthorised utilisation of additional load by the concerned Mills. The first Appellate Court had also rejected the contention of the appellant Electricity Board that the suits were premature in nature and that they had been filed without exhausting the appeal remedies.
10. Aggrieved by the judgment and decree of the first Appellate Court, dated 26.11.1991, the appellant Electricity Board had preferred the present second appeal stating that the lower Appellate Court had erred in failing to note that the respondent had committed a malpractice by connecting unauthorised additional load and therefore, the action taken by the appellant Electricity Board is in order. The first Appellate court had not taken note of the fact that the respondent had admitted the use of unauthorised additional load, which is clear from Ex.B-4. The finding of the lower Appellate Court, with regard to the signature on the letter, marked as Ex.B-4, that there was no admission of the contents of the letter, is erroneous. The lower Appellate Court ought to have come to the conclusion that the suit filed against the provisional assessment notice is not maintainable in law and that the suits are premature in nature.
11. The appellant Electricity Board had filed the present second appeal raising the following substantial questions of law:
"1. Whether the suit filed by the respondent against a provisional assessment notice is maintainable in law when the terms and conditions of supply which are binding on the parties contemplate a particular procedure in the matter of conduct of enquiry before a final assessment is made.
2. Whether the finding of the lower appellate Court that only the signature of the respondent's representative could be taken to have been admitted and not the contents thereof is sustainable in law particularly when the same has been written in the letter head of the respondent.
3. Whether the reasoning of the lower appellate Court to hold that only the signature of the respondent in Ex.B-4 could be taken to have admitted and not the contents thereof is sustainable in law.
4. Whether in the light of the evidence on record, unauthorised additional load is not established and if so whether the appellant is not entitled to issue the provisional notice in terms of the terms and conditions of supply."
12. At this stage of the hearing of the second appeal, the learned counsel appearing on behalf of the respondent had submitted that the present second appeal has been filed only against the judgment and decree, dated 26.11.1991, made in A.S.No.56 of 1991, on the file of the Sub Court, Gobichettipalyam, reversing the judgment and decree, dated 29.3.1991, made in O.S.No.538 of 1987, on the file of the District Munsif Court, Sathyamangalam. No second appeal had been filed against the judgment and decree, made in A.S.No.57 of 1991, reversing the judgment and decree, dated 29.3.1991, made in O.S.No.530 of 1987. Hence, the present second appeal is not maintainable, as it is hit by the principle of res judicata.
13. The learned counsel Mr.N.Muthuswami, appearing on behalf of the appellant Electricity Board, had not refuted the statements made by the learned counsel appearing on behalf of the respondent.
14. In such circumstances, this Court is of the considered view that the other issues involved in the present second appeal need not be gone into, at this stage. As such, the second appeal is liable to be dismissed, as it is not maintainable in law, since the appellant had not challenged the judgment and decree made in A.S.No.57 of 1991, arising out of the judgment and decree, dated 29.3.1991, made in O.S.No.530 of 1987. Hence, the second appeal stands dismissed. No costs.
Index:Yes/No 18-08-2009 Internet:Yes/No csh To
1. The Sub Court, Gobichettypalayam,
2. The District Munsif Court, Sathyamangalam.
M.JAICHANDREN,J.
csh S.A.No.521 of 1993 18-08-2009