P L D 1958 (W (PLP)

KAIKAUS, J.‑This appeal arises out of a suit filed by one Abdul Aziz, owner of the Hilal Ice Factory, Multan, and a consumer of electric energy, against the Multan Electric Supply Company, claiming that he was liable to pay for the use of electric energy at the rate of 3 pice per unit and not at the rate of 5 annas per unit as claimed by the defendant. The suit was decreed by the trial Court but was dismissed on appeal by the District Judge.

2. On the 29th June 1948, the plaintiff applied to the defendant‑respondent, who is a licensee under section 3 of the Electricity Act, for supply of electric energy. This application (truly it is a requisition under the said Act) could not be granted unless it was first sanctioned by the Electric Power Control Board, which had been established during the second Great War in accordance with orders which had been passed under rule 81 of the Defence of India Rules and whose continuance has been authorised from time to time by Ordinances and. Acts culminating in the West Punjab Electricity (Emergency Powers) (Control of Supply) Act, 1949. This sanction was accorded on the 10th of September 1949 and the copy of the order was, in accordance with the statement of the Assistant Electric Inspector, duly sent to the defendant, though this is denied by the defendant‑company who admits receipt of this order only on the 20th of November 1949, when it was personally delivered to the Manager of the Company by the Assistant Electric Inspector on account of the denial by the Company of the receipt of the letter containing the order. The case of the plaintiff is that in spite of the sanction by the Government the defendant put all obstacles in the way of the plaintiff in getting all electric connection. The reason was that some of the Directors of the defendant‑company had their own ice factories (not run by electric energy) and the company was itself contemplating the running of an ice factory. Even at the time when he was, trying to, procure land for con struction of the ice factory, the Directors of the defendant had done all in their power to prevent such an acquisition ; but he had ultimately succeeded with the help of the military authorities to whom he intended supplying ice. As the defendant avoided giving of connection on various pretences, the plaintiff had to complain to the Electric Power Control Board as well as to the Electric Inspector with the result that the Chairman of the Electric Power Control Board issued a warning to the defendant not to defer the supply of electric energy to the plaintiff and the Electric Inspector deputed his assistant to make enquiries into the complaint of, the plaintiff. The Assistant Electric Inspector made, a report on ,the 11th of March 1950 that one of the reasons put forward by the defendant for its failure to supply energy to the plaintiff the non‑availability of material‑was manifestly untrue on facts while the rest were untenable. Ultimately, the defendant was obliged to enter into an agreement with the plaintiff on the 27th of March 1950. But though the defendant was forced to give a connection, he got an opportunity of imposing on the plaintiff ,a very high rate. Whereas from the other ice factories he was charging 3 pice per unit, he demanded from the plaintiff 5 annas per unit. . The plaintiff, who had by this time invested the whole of his available capital in the ice factory, and who dare not run the risk of suffering the huge loss which would be caused to him if in the next ice season, which was fast approaching; he did not run his factory, could not but accept the exorbitant rate. The plaintiff, however, inserted a clause in the agreement that in case the defendant charged a lower rate from any other ice factory the plaintiff would be entitled to electric energy on the same rate. The defendant could not refuse to agree to this condition because of sections 22 and 23 of the Electricity Act, which debar a licensee from showing undue preference to a particular consumer.

3. While the plaintiff did agree to this rate, he at once began protesting to the authorities. He complained to the Chairman of the Electric Power, Control Board Land to the Electrical Inspector by letters as well as telegrams. As a result, the Electrical Inspector deputed the Assistant 'Electrical Inspector to make an inquiry and submit a report. The plaintiff had alleged that from Rustam Ali, who was running an Ice Factory, the defendant was charging only 3 pice per unit. The Assistant Electric Inspector visited the factory himself, recorded the state ment of Rustam Ali, and made a report that the allegations of the plaintiff were true and that, in fact, the defendant was charging only 3 pice per unit from Rustam All and was thus showing undue preference.

4. While the matter was yet pending with the Electric Inspector, the plaintiff was forced to file the present. suit on the 12th January 1951 because he did not want to pay at five annas per unit and the defendant had threatened that if he did not pay at this rate he would be disconnected. During the pendency of the present suit a complaint has been lodged against the defen dant by the Electric Inspector under section 23 of the Electricity Act, for charging higher rate from the plaintiff, but that case has been stayed pending decision of this suit.

15. The plaint in this suit is based on the following grounds : (1) That the agreement between the parties for payment of five annas per unit was the result of undue influence and coercion. (2) That in accordance with the agreement the defendant could charge the plaintiff only three pice per unit, as it was charging that rate from other ice factories. (3) That in view of sections 22 and 23 of the Electricity Act,which enjoins a licensee to charge uniform rates, the plaintiff, was bound only to pay at the rate of three pice per unit. (4) That the agreement for payment of five annas was opposed to public policy. The reliefs claimed are cancellation of the agreement, a declaration that the rate at which the plaintiff is to be charged is nine pies per unit and an injunction restraining the defendant from charging more than nine pies per unit. The defendant denied that any undue influence or coercion was exercised, or that it was supplying electric energy to any ice factory at the rate of three pice per unit or at a rate lower than five annas per unit. It denied too that any undue preference had been shown to any consumer or that sections 22 and 23 of the Electricity Act were attracted. The following' issues were framed : (1) Was the agreement (Exh. P. 4) entered under undue influence and coercion and what is its effect ? (2) Whether the agreement (Exh. P. 4) is penal and against public policy ? (3) Whether the defendant had shown undue preference under section 23 of Electricity Act in settling 5 annas per unit as charges from the plaintiff ? (4) Whether under the contract the defendant cannot recover 5 annas per unit ? If so, at what rate the defendant should charge and from what date ? (5) Whether the plaint is properly valued for the purposes of Court fee and jurisdiction ? (6) Whether the suit is maintainable in its present form ? (7) Whether the plaintiff is not entitled to rectify the agree ment in dispute ? (8) Relief. Issues Nos. 5 and 6 were treated as preliminary issues and in view of the fact that they have not been the subject of argument either before the learned District Judge or before me, no further reference to them is necessary. On issue No. 1, the trial Court found that the agreement was the result of undue influence. Issue No. 2 was not pressed by the plaintiff. Issues No. 3, 4 and 7 were found in favour of the plaintiff and the suit was decreed. Issue No. 7, it may be pointed out, is not clear and, at the most, it may only embody the result of issues Nos. 1, 3 and 4 and to this issue no further reference is needed.

6. On appeal, the learned District Judge disagreed with the trial Court on issues Nos. 1 and 3, that is, those relating to undue influence and undue preference. As regards issue No. 4, the learned District Judge was of the opinion that it did not arise on the pleadings and was, therefore, unnecessary. In order that the plea, which is the subject‑matter of this issue, may be embodied in the plaint, an application for the amendment of the plaint was submitted to him which he rejected. He found on issue No. I that undue influence had not been established, for all that was proved was an urgent need of the plaintiff and urgent need was not sufficient to support a plea of undue influence. On issue No. 3 he found that no undue preference was established. He held further that even if undue preference were held to be established it would not avail the plaintiff, for the agreement with the plaintiff would in that case be void and on the basis of a void agreement no injunction could be claimed.

7. In this appeal by the plaintiff, the finding of the learned District Judge on issues Nos. 1 and 3 and his refusal to decide issue No. 4 have been challenged.

8. I begin with issue No. I. The facts, on which the plaintiff bases this plea are that at the time when the agreement was entered into the plaintiff had invested almost the whole of his available capital in the ice factory, that the ice season was fast approaching, and that if the plaintiff failed to agree to this rate the result would have been disastrous for him. He knew full well from the past attitude of the defendant (which had, in spite of the Government's sanction, and in spite of the law which enjoined upon it that it should provide electric connection within one month of a requisition, put all sorts of obstacles in the way of the plaintiff and took all false pleas for not giving a connection to him) that the defendant would, if he did not agree to the rate offered, have no scruple in refusing a connection even though that be illegal. The rate which the defendant was demanding was less than the maximum fixed by the Provincial Government which was five and a half annas and the defendant would try to take refuge behind the maximum rate. The plaintiff had therefore no option but to accept the rate.

9. The defendant replies to this by saying that till the sanction for the connection was accorded by the Government, there was no proper requisition for supply of energy before it at all so that actually the requisition should be regarded as having been made on the 20th of November 1949, when the defendant received notice of the sanction of the Government. As regards the delay in giving connection, the defendant says it was due to various reasons, one being that the Test Demand Report was a condition precedent for the giving of a connection, and another that some of the materials required for a connection were not available.

10. Learned counsel for the defendant respondent has raised a preliminary objection that the finding as to individual insquence is a finding of fact and cannot be challenged in second appeal. If the learned District Judge properly appreciated what in law constitutes `undue influence' and he gave a finding on the basis of all the material * the record, the finding would be binding. Whether the finding is binding or not would depend, in the first place, upon whether the learned District Judge's enunciation of law is correct. I will, therefore, decide the question as to the validity of this finding of the learned District Judge only after I have myself considered what constitutes undue influence.

11. It will be convenient to reproduce here section 16 of the Contract Act :‑ "16. (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another‑ (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other : or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not "induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this subsection shall affect the provisions of section 111 of the Indian Evidence Act, 1872". Learned counsel for the respondents contends that for proof of undue influence it is essential that there should be a particular relationship such as that of parent and child, guardian and ward, husband and wife. He relies for this contention on the words "relations subsisting between the parties" as well, as on illustrations (b) and (c) to this section.

12. It is true that the Words "relationship subsisting between the parties" as well as the two illustrations relied upon appear to support the contention of the learned counsel but this impression is soon removed on a closer study of the matter. The contention of learned counsel is opposed (o subsection (2), it is opposed to reason, and is not consistent with authority, including some Privy Council decisions.

13. Subsection (2) of section 16 provides that the person who makes a contract with one whose mental capacity is temporarily or permanently affected by age, illness, mental or bodily distress, is in a position to dominate the will of that person. Obviously there is no particular relationship between the contracting parties in such cases. The interpretation suggested by learned counsel for the respondents would also exclude cases of heirs apparent and pardanashin ladies from the protection of section 16, whereas there is abundant authority in support of the proposition that expectant heirs and pardanashin lades are entitled to such protection. In Kali Bakhsh Singh v. Ram Gopal Singh (36 All. (P C)81) their Lordships of the Privy Council had laid down that it was incumbent on those who wanted to take advantage of deeds executed by pardanashin ladies to show that no undue influence was exercised.

14. A person may be in a position to dominate the will of another either because there is a personal connection between the two on account of which he can persuade or coerce that person to act in accordance with his wishes or because the con sequences of his refusal to enter into a contract will be so' disastrous to the other party that the other party is not in a position to resist his will and is forced to enter into an agreement on terms proposed by him. As to in what circumstances it will be possible to rely on the urgent need of a party for entering into contract in order to determine the question of undue influence is a matter which I will presently discuss, but there is no reason to think that section 16 was envisaging only one of the two reasons which may exist for domination of the will.

15. Suppose a tube of penicillin was sold by a person. for one lac of rupees to one who needed it for a patient who, according to medical advice, would die if he was not given a penicillin injection and this high price has paid because that was. the only tube available at that time. Could the Court uphold such a transaction ? If I am to accept the contention of learned counsel for the respondents, such a transaction would be valid. Without any hesitation I refuse to agree.

16. In Tungabai Bhratar Purushottam Shaniji Kumhhojkay v. Teshrant Dinkar Jog (A I R 1945 (P C) 8), their Lordships, dealing with the question as to when a presumption as to exercise of undue influence may arise said :‑ "It would certainly not be true to say that there is a presump tion in every case where a wife confers a benefit on her husband without consideration. Equally it is not necessary in order to establish the presumption that the parties should stand in some particular category of relationship to each other. The presumption no doubt can be more easily established and indeed may be assumed in such cases as transactions between parent and infant child, solicitor and client, or spiritual adviser and penitent, but it will arise in, any case in which the facts show that the circum stances are such that influence can fairly be inferred." True, their Lordships were not dealing with the exact question I am discussing, but their pronouncement though obiter is entitled to great weight. In Dhanipal Das v. Maneshar Bakhsh Singh (28 All. (P C) 570), the question was whether the high rate of interest agreed to by a Toluqdar whose‑ estate was under the management of the Court of Wards was not the result of the exercise of undue influence, Their Lordships dealing with this question, said :‑ "The fair result of this evidence is that the respondent, through his improvidence, was in urgent need of money, and owing to his estate being under the care of the Court of Wards he was in a helpless position. There was no fraud in the matter, and no pressure was put upon the respondent by Auseri Lal or his agents to induce him to accept the conditions offered to him. And indeed the fact of the interest being reduced on the second transaction from 24% to 18% points to some negotiations having taken place between them. But it must be taken that the respondent was compelled by this circumstance to accept the terms `'which were offered to him both in 1889 and 1892. Their Lordships are of opinion that although the respondent was left free to contract debt, yet he was under a peculiar dis ability and placed in a position of helplessness by the fact of his estate being under the control of the Court of Wards, and they must assume that Auseri Lai, who had known the respondent for some 50 years, was aware of it. They are therefore, of opinion that the position of the parties was such that Auseri Lai was `in a position to dominate the will' of the respondent within the meaning of the amended section 16 of the Indian Contract Act. It remains to be seen whether Auseri Lai used that position to obtain an unfair advantage over the respondent." Their Lordships then proceeded to hold "that the charging of compound interest was in the circumstances unconscionable and that, therefore, the lender had used his position to demand and obtain from the respondent more onerous terms than reasonable and that the bond suit must be set aside." Their Lordships did not, however, set aside the bond altogether and said : "Justice would be met by allowing the creditor 18% simple interest on the sum advanced." It will be observed that their Lordships were not relying upon any particular relationship. The circumstance on account of which the creditor was in a position to dominate the will of the debtor was that the property of the debtor was under the management of the Court of Wards. True, the creditor already held a bond in his favour, but that is not the circumstance on which their Lordships rely or to which they advert at all when discussing the question of undue influence. Maneshar Bakhsh Singh v. Shadi Lal (31 All 386), is a case of the same debtor. Here again, their Lordships held that the terms of the bond were unconscion able and that it was the result of undue influence. Their Lordships referred to Dhanipal Das v. Maneshar Bakhsh Singh and held that on account of the property of the debtor being under the control of the Court of Wards a lender would know that he was in a position to dominate the will of the borrower. This applied to every lender. Their Lordships had obviously not considered it necessary that the lender should be one who is already the creditor of the borrower. In Raghunath Prasad Sahu v. Sarju Prasad Sahu (AIR 1924 P C 60), the question again was whether a mortgage deed in which compound interest was payable at 2% per mensem was not the result of undue influence Their Lordships distinguished the two cases mentioned above on the ground that in those cases the property of the borrower was under the management of the Court of Wards and, therefore, the lender was in a position to dominate the will of the borrower, whereas in the case before them the borrower was not suffering from any such disability and there was no proof of the exercise of undue influence. In Lala Balla Mal v. Ahad Shah (A I R 1918 P C 249), their Lordships were called upon to decide whether the agreement to pay 30% interest was not the result of undue influence. An examination of the judgment will show that the only question which their Lordships considered was whether the rate of interest was unconscionable. Their Lordships did not make any reference to the existence of a relationship at all. In Rambali Prasad Singh v. Mst. Kishori Kuer (A I R 1937 Pat. 362) it was held that it was not necessary that domination of will should be by a relative or a friend. In London and Lancashire Insurance Co. v. Binoy Krishna Mitra (A I R 1945 Cal. 218) it was held that there can be undue influence even as strangers.

17. I may here make a brief reference to English Law. In Halsbury Volume VII (Second Edition) in para 139 it is stated that for avoiding a contract on the ground of undue influence existence of a particular relationship is not necessary. The only difference in the two kinds of cases is, as will appear from the last part of para 139, that where no such relationship exists the burden of proving the exercise of undue influence rests on the party who seeks to avoid the contract whereas in the case of existence of such relationship it is for the party who is in a position to influence the other to show that the transaction was fair.

18. I would reject the contention of the learned counsel for the respondents and would now proceed to consider the criterion for determining whether undue influence has been exercised in cases falling under the second category i.e., where no particular relation ship subsists. What should be the extent of the harm which could have been caused to a party in case the contract was not entered into at all in order to hold that the other party was in a position to dominate his will. The learned District Judge, relying upon Mst. Burkatunnissa Begum v. Debi Bakhsh (A I R 1927 P C 84), held that the mere fact that a party is in urgent need of money would not mean that the money lender is in a position to dominate his will. But it will be observed that in the Privy Council cases which I have cited, i.e Dhanipal Das v. Maneshar Bakhsh Singh, Maneshar Bahhsh Singh v. Shadi Lal and Raghunath Prasad Sahu v. Sarju Prasad Sahu the reason why their Lordships held that the lender was in a position to dominate the will of the borrower was only this that the borrower stood in such need of money that he was helpless. Their Lordships had expressly referred to "urgent need of money" in Dhanipal Das v. Maneshar Bakhsh Singh and in both the cases their Lordships had pointed out that the property of the borrower was under the management of the Court of Wards and, therefore, he was helpless and not in a position to resist the will of the lender. When their Lordships said that the borrower was helpless their Lordships were only considering the consequences of the borrower not executing the deed in accordance with the wishes of the lender. It will be observed, therefore, that the difference between the circumstance that does not give rise to domination of will and on that does give rise to the domination of will is, it accordance with their Lordships' decision, a difference between urgent need and helplessness. Urgent need and helplessness, however, have both of them reference to the effect of the failure of the borrower to secure the money and obviously the difference between the two only a matter of degree. How is this degree of the need of the borrower to be determined ? It is not possible to lay down any hard and fast rule. Each case must be decided on its own facts.

19. After having determined as to whether one party was in a position to dominate the will of another, there still remains another question and that is whether an unfair advantage was taken. That again depends upon the circumstances of each case and the criterion would be whether the Court considering all the attendant circumstances regards the transaction as unconscionable.

20. The learned District Judge, relying merely upon Mst. Burkatunnisa Begum v. Debi Bakhsh did not go further into the question as to whether the plaintiff was in a condition of help lessness. He regarded Mst. Burkatunnisa Begum v. Debi Bakhsh as entirely settling the matter so that however urgent the need, no question of undue influence could have arisen, therefore, proceed to consider whether in the circumstances of this case the plaintiff was reduced to a state of helplessness. The material on the record is not abundant. There is only the statement of the plaintiff himself. The facts he relies upon are that he had invested the whole of his capital; the ice season was fast approaching ; the defendant has already shown by its attitude that it would not care even if is transgressed the law in refusing to agree to reasonable terms, and the term of his permit was expiring. These are all the allegation on which the plea of undue influence rests. The last of these allega tions is not correct, as accepted by learned counsel for the appellant. As for the allegation that the plaintiff had invested the whole of his capital, it is just his bare word without any details. He ha, not stated how much capital he owned, how much he had already invested in this concern and what was left with him. He is apparently a man of means, for he owns another ice factory at Lahore. At the same time it was ' yet the end 'of March and although he can say the ice season was approaching, he is unable to show how much loss would have been caused if, for instance, he had to wait for three months more, for if the defendant did not agree to reasonable rates the plaintiff' could again have approach ed the Power Control Board or the Electrical Inspector. I am not, there fore, on this record, satisfied that the plaintiff had been reduced to state of. helplessness so that he could not but accept any rate offered by the defendant, although I agree that he may have suffered considerable loss had he not accepted this rate.

21. I will next consider issues Nos. 3 and

4. These issues are connected and the material on which a decision of them is .to be based is to a great extent common. Before proceeding to refer to that material, however, I will consider whether the refusal of the learned District Judge to decide issue No. 4 was justified. As already stated, the reason given by the learned District Judge is that this issue does not arise on the pleadings. According to him, the case of the plaintiff only was that the agreement was not binding on him and not that even if it was a valid agreement he was to pay only three pice per unit in accordance with it. He relied, for this conclusion, on para 5 of the plaint, which gives the grounds of the invalidity of the agreement. It runs as follows :‑ The learned District Judge was of the opinion that the whole case of the plaintiff was stated in this paragraph and that there was no allegation in the plaint to the effect that in accordance with the agreement also the plaintiff was bound to pay only three pice per unit.

22. Now it is true that this plaint is not happily worded and there is in it nowhere a plea in so many words that the plaintiff is entitled to pay only three pice in accordance with the agreement but after reading the plaint little doubt is left in one's mind as to the substance of the plaintiff's claim. That substance is that he is bound to pay only three pice per unit and no more. The clause in the agreement of the parties that if from any other Ice Factory a lower rate is charged, the plaintiff is entitled to pay at the same rate, is specifically referred to in sub‑para Jeem of para 5, though there is room for comment that even when reproducing this clause the plaintiff is only making an allegation about the fraud of the defendant in representing that the usual rate was five annas per unit. However, in para 7 of the plaint the plaintiff says :‑ In the relief clause all that the plaintiff has asked for is that the rate of payment should be three pice and not five annas. In para 6 too he has said that from the very date he was given the connection he had been asking that the rate imposed by the defendant be reviewed. In any case, even if there was any technical defect in the plaint because although the relevant clause in the agreement was referred to, there was no specific plea that even if the agree ment was valid the plaintiff was bound to pay three pice only, the matter is concluded by the framing of issue No.

4. That issue makes it clear that the plaintiff was even relying upon the agreement itself for paying three pice per unit. Before the learned District Judge an argument was put forward on behalf of the defendant that this issue is to be read in the light of para 5 of the plaint and therefore, it does not mean that the agreement is in this issue regarded as valid. I do not see how by reading this issue in the light of para 5 any construction can be put upon it except that the plaintiff was entitled under the agreement to pay only three pice per unit. I have asked learned counsel for the defendant respondent to state any other construction of this issue and he is unable to do so. 23. (sic) The law relating to pleadings is not a very technical law as has been assumed by the learned District Judge. What is intended is that the other party should have a fair notice of the case of the opposite party. If a proper issue is framed and evidence is led that is ordinarily quite sufficient. Here the relevant condition in the agreement had been specifically stated in the plaint and the plea had throughout been taken in the plaint the plaintiff was bound to pay only three pice. When this issue was framed no objection at all was raised by the defendant that it did not arise on the pleadings. The parties went to trial and led evidence. It cannot possibly be urged and it has not been urged that there was any prejudice to the defendant I have not the slightest hesitation in overruling the Learned District Judge on this point. Learned counsel for the respondent relies on the fact that an application for amendment had been put in before the learned District Judge I have asked learned counsel for the appellant why this was done and he says it was because of the attitude of the learned District Judge, who was not prepared to hear on this issue, and not because otherwise he felt the need of it. I do not see how the submission of this application can help learned counsel for the respondent.

23. Nor was the learned District Judge justified in refusing the application for amendment if he was of the opinion that without an amendment the plaintiff should not be allowed to take this plea. An amendment of the plaint is almost the right of a party when it relates to the cause of action on which the suit is based. Apart from .exceptional considerations an amend ment is refused only when it is not bona fide and the intention is merely to delay the case. If a plea could have been taken t. originally I do not see why, if it is raised bona fide, it should not be allowed unless it be that a question of limitation arises, the defendant having gained some valuable right which in the circum stances it may not be proper to deprive him of. What better case could there be for an amendment than that the facts on which the plea is based have been duly mentioned in the plaint, that an issue on the point in dispute has been framed and evidence has been led, and the point on which the amendment is asked for is the real point of controversy between the parties. The learned District Judge has refused the amendment on the ground that "it seeks to introduce a totally different, new and incon sistent case". It is not possible for me to appreciate this observation. The plea which was being introduced by the amendment is founded on an agreement which is already on the record and the contents of which have been reproduced in the plaint and the plea is apparent on reading that document. The plea itself embodies the substance of what is the claim of the party as contained in the plaint. This is certainly not introduc ing a new and inconsistent case. The learned District Judge seems to have regarded the new plea as inconsistent because the case as laid in the plaint was that the agreement was invalid whereas this plea assumed its validity. But there is no incon sistency at all in saying that the agreement is invalid because of undue influence or because of section 23 of the Electricity Act but that even if neither of the grounds of invalidity be correct and the agreement be valid, the plaintiff is not bound, in accordance with the agreement itself, to pay more than three pice per unit. I have already explained in Ala‑ud‑Din v. Farkhanda Akhtar (P L D 1953 Lah. 131) what is an inconsistent case, a matter with regard to which there prevails what I believe is a misappre hension. For instance, adverse possession and ownership are regarded as inconsistent pleas. I have fully explained in that judg ment that there is no inconsistency between these pleas. Alternative, grounds of title do not constitute inconsistent pleas. It is only where a person has to make two contradictory allegations of fact to support two pleas that the pleas are inconsistent. If two pleas can be put in the same plaint and that plaint cu be verified by a person without contradicting himself, there is no inconsistency in the pleas. That is the simple criterion. There would be inconsistent pleas if a person were to say a document was a forgery and were to aver .in the same plaint that he executed it because he was threatened with injury. These pleas cannot in fact be put in a plaint at all for the plaint has to be 'verified as correct and both the pleas cannot be correct.

24. I would not, therefore, agree that if a question really arose whether amendment should of should not be allowed, the prayer of the plaintiff should have been rejected but I have no doubt at all that an amendment was, in the circumstances, wholly unnecessary and that on the record, as it stood, it was the duty of the learned District Judge to decide issue No. 4 also.

25. I now proceed to determine issues No. 3 and

4. It will be observed that the subject‑matter of the two issues is similar. Issue No. 3 relates to the applicability of, section 23 of the Electricity Act which section makes it obligatory on the licensee to charge uniform rates, while issue No. 4 is based on the clause in the agreement which entitles the plaintiff to pay the same rates as other ice factories are paying. The evidence relating to these issues is common and I will give a summary of it.

26. The plaintiff relies for proof of these issues on the rates charged by the defendant from two ice factories. The first is the Pakistan Ice Factory. This was an evacuee Ice Factory which was allotted to one Allah Ditta for the year 1948‑

49. Allah Ditta re‑named it The Pakistan Ice Factory. An agreement was entered into between the Pakistan Ice Factory and the defendant on the 25th of March 1948 by which it was provided that the defendant would supply electric energy to the Pakistan Ice Factory at 0‑1‑6 per unit with a rebate of 3 pies per unit. The connected load of this factory is 40 kilowatts. The hours of use were unrestricted. Minimum consumption in one season (which means from the 16th of April to the 15th of September) was to be 60,000 units. The agreement was to remain in force, in the first instance, for a period of one year and was to continue from year to year until it was terminated in accordance with the relevant provision in the agreement. That provision was that either party could terminate the agreement by giving to the other party three months' notice in writing by registered post. A notice was in fact given to the Pakistan Ice Factory by the defendant on the 27th of February 1950. This was not, how ever, a notice of three months, and was therefore not in accordance with the agreement. It will be proper to repro duce the whole of contents of the notice which is a short one. It says :‑ "We are giving you this notice that your old agreement has expired and as such you are required to execute a fresh agreement. Please note that from this season the charges for your consumption will be Rs. 0‑5‑0 per unit instead of 0‑1‑6 per unit. No fresh agreement was in fact executed.

27. The contention of the defendant with respect to the Pakistan Ice Factory is that this factory had been sealed in 1950 and was not working at, the time when agreement with the plaintiff was entered into. Allah Ditta allottee who had been produced as a witness by the defendant had admitted in the witness‑box that his allotment had not been renewed and he had stopped production in 1950. The bills relating to this factory show that from December 1949, this factory was not working because only meter rent was being charged.

28. The other Factory on the rate charged from which reliance is placed by the plaintiff is Rustam Ali's Ice Factory. The facts relating to it are that Dr. Bal Krishan and Topan Dass evacuees had two connections ~ from the defendant for the supply of electric. energy. These two connections were transferred by order of the Government contained in Exhs. C. D./ I and C. D./3 to Rustam Ali and Farrukh Hussain and these two persons began to run what is called Rustam Ali's Ice Factory. The Industries for the purpose of which the connections were sanctioned by the Government are mentioned in the two docu ments mentioned above as cold storage and cooling. It is stated further in each order that the transfer was subject to the existing‑ industry not being changed and the sanctioned load not being increased. Total sanctioned load of these two connections was 4.492 kilowatts. The consumers were entitled to use electricity in restricted hours only according to a notification by the Govern ment which directed the defendant to supply energy to Dr. Bal Krishan Topan Dass at these connections only in restricted hours. The rate charged from this factory is ‑/1/3 less ‑/‑/6 rebate, that is 9 pies per unit. Although in the order of the Government only cooling and cold storage are mentioned, the contention of the plaintiff is that this is in fact an ice factory, that is, it manufactures ice. On the 24th of August 1950, the plaintiff gave a notice to the defendant saying that he was not going to pay the rates demanded from him because the defendant was charging three pice per unit from Pakistan Ice Factory, Rustam Ali's Ice Factory and Colony Textile Mills, the truth of which he said could be ascertained from the bills that the company had been and was sending to these consumers. To this notice no reply was given by the defendant. The plaintiff had also complained to the Electrical Inspector in respect of the preferential rates charged from him. On the 23rd of August 1950, the Electrical Inspector by letter Exh. C. 4 called upon the defendant to explain why he was charging the plaintiff ‑,/5/ per unit while he was charging other ice factories, such as Messrs. Rustam Ali's Ice Factory only Rs. ‑/1/41 per unit (This will be inclusive of the amount of rebate). It was also stated in the letter that the Electrical Inspector was deputing an officer of the department to investigate the matter. By letter C. D./17 the defendant replied to this letter of the Electrical Inspector saying that it was quite a surprise to it that Rustam Ali's concern was described as an ice factory, and alleging also that the factory was working in restricted hours. The Electrical Inspector deputed the Assistant Electrical Inspector to make an investigation on the spot. The Assistant Electrical Inspector went to Multan and inspected Rustam Ali's Ice Factory. He made a report that he had himself seen ice being manufactured in this factory. He stated too in the report that in order to see whether the factory was working in restricted hours he had paid a surprise visit to the factory and had found that it was working on unrestricted hours basis. He recorded the statement of Rustam Ali who accepted that he was making ice and that he was working in unrestricted hours but said that his predecessor was also doing the same. It is probably on the basis of this report that a complaint had been lodged against the defendant.

29. Because of the denial of the defendant that Rustam Ali's factory was Manufacturing ice, Mr. Abdul Alim Khan Pleader was commissioned by the Court to inspect the factory. He inspected it and reported that it was manufacturing ice. Mr. Muhammad Umar Siddiqui, an Executive Engineer, Electri cal Mechanical Division (P. W. 5), also stated that he had seen in the factory two aluminium compressors intended for preparing ice, one of which was idle and the other working at the he inspected it. Sultan Ahmad, Head Constable. (P. W. 7). stated that he had organised a raid on Rustam Ali's Ice Factory because he was told that Rustam Ali was selling ice at more than the sanctioned rate. He had investigated the case and during the investigation he had found ice being manufactured in the factory. He had challaned the Munshi of Rustam Ali who had been convicted. Some other evidence too has been produced but in view of the finding of the District Judge himself that Rustam Ali was manufacturing ice though he adds that began manufacturing it secretly it is not necessary to refer to the rest of the evidence. The appellant does not accept that the starting of manufacture of ice was surreptitious and contends that there was no evidence on the record for this finding. The position of the defendant in the trial Court and in the lower Appellate Court and even before me is that the ice is not being manufactured in Rustam Ali's Ice Factory at all.

30. As regards the contention of the defendant that Rustam Ali was working in restricted hours, learned counsel for the appellant had referred me to the statements of a large number of witnesses, including the employees of the defendant, who accept that for the manufacture of ice it is essential to work in unrestricted hours. In the first place, there is the statement of Mr. Rashid Ahmad, Deputy Chief Engineer of the defendant, who says for manufacturing ice electricity is required for 24 hours. The Assistant Electrical Inspector, in his report, to which I have already referred, had stated that he had paid a surprise visit to the factory and had found it working in prohibited hours. Kabir Ahmad (C. W. 4) is Engineering Advisor to the Punjab Government. He says in restricted hours ice cannot be manu factured. Similar is the statement of Muhammad Umar (P. W. 5), Executive Engineer, Electrical and Mechanical Division. There are also the statements of some owners of ice factories, that is, Faqir Muhammad, Mir Aziz Qureshi and Malik Farrukh Husain (the partner of Rustam Ali) to the same effect. It is to be noted also that according to the admission of Shamsher Ali Khan, up to 1952 Rustam Ali was not being charged the progressive rates chargeable from those who consume energy in restricted hours but a flat rate.

31. In order to rebut the plaintiff's case on these two issues, the defendant has produced its Deputy Chief Engineer Rashid Ahmad and its Manager Shamsher Ali Khan. Mr. Rashid Ahmad, who gave evidence in English, only explained some technical terms to which reference will be made later. Shamsher Ali Khan stated that the Pakistan Ice Factory had been sealed in 1950 and had not worked in the ice season of that year. With respect to Rustam Ali's Factory he said that in their records the industries for which the two connections of this factory had been granted were cold storage and cooling and Rustam Ali had never applied for any change of industry. Rustam Ali was, also, he stated, entitled to receive energy only in restricted hours. The witness then explained that Rustam Ali was a good consumer and, therefore, was charged a low rate, while the plaintiff was a bad consumer and the rate charged from the plaintiff was not excessive considering the circumstances. To these circumstances on which Shamsher Ali Khan relied for this statement reference will presently be made. The witness was asked whether from any other unrestricted consumer the defendant was charging a rate of five annas per unit and he said he could not say. Then he added that he had charged some other con sumers at five annas per unit but he could not give their names. He was asked whether the defendant was prepared to charge from the plaintiff the same rate as he was charging Rustam Ali, His reply was that if all relevant circumstances were equal the defendant will be prepared to charge the plaintiff at the rate at which Rustam Ali was being charged.

32. The plea of the defendant with respect to Rustam Ali's Ice Factory has been that it neither produces ice nor works in unrestricted hours and in any case the defendant does not know that it produces ice and works in unrestricted hours. This plea has been taken even before me. It is surprising that the defendant should persist in a plea which is obviously untrue. It appears to me that this attitude is due to the criminal case that has been instituted against the defendant for showing undue preference to Rustam Ali as against the plaintiff. I have already stated the overwhelming evidence that exists on the record with respect to manufacture of ice by this factory. I have also referred to the abundant evidence that exists in proof of the fact that for the making of ice a use in unrestricted hours is necessary and I have also mentioned the report of the Assistant Electrical Inspector who had found the factory working in prohibited hours. I hold it proved that the factory is manu facturing ice and is working in unrestricted hours. I have little doubt too that the defendant was well aware of both these facts. The plaintiff had, on the 24th of August 1950, served a notice on the defendant intimating his refusal to pay annas five per unit because the defendant was charging low rates from Rustam Ali's Ice Factory, Pakistan Ice Factory and the Colony Textile Mills. To this notice there was no reply by the defendant at all. The Assistant Electrical Inspector had visited the Rustam Ali's Ice Factory and had found the factory making ice and working in restricted hours. Shamsher Ali Khan, the defendant's manager, was one of the persons whom he questioned during the inquiry that he conducted. His report had been brought to the notice of the defendant at least on the 12th of September 1950 if not earlier. The Electrical Inspector had called upon the defendant to explain why it was showing undue preference to Rustam Ali. Ultimately the defendant was prosecuted for showing undue preference to Rustam Ali. It is impossible to accept that when the plaintiff was giving a notice of refusal to pay on account of this factory and the Electrical Inspector was calling for an explanation the defendant made no effort to find out whether Rustam Ali was in fact making ice or was working in restricted hours. Shamsher Ali Khan, the Manager of the defendant, when questioned as to whether, he had inspected Rustam Ali's factory said it was not his duty to do so. He added that this was the duty of one Fazal Ilahi, the Head of the Meter Department, who had in fact inspected the factory and had reported that Rustam Ali was not working in unrestricted hours. Neither the alleged report was produced by the defendant nor was Fazal Ilahi examined as a witness. The defendant's knowledge as to use of electricity by Rustam Ali in unrestricted hours is proved even by the bills sent by the defendant to Rustam Ali. These bills show clearly that Rustam Ali was consuming electric energy in unrestricted hours for they exceed .the maximum which he could have consumed if he had worked only in restricted hours. The total connecting . load of Rustam Ali's two connections is 4.492 kilowatts. The total consumption per month in restricted hours (10 hours a day) ‑ would be 1347.6 units. The bills show that in June 1950 the consumption was 4077 units, in July 1950 3825 units, in August 1950 2988 units, in August 1951 5439 units, and in July 1952 7856 units. Shamsher Ali Khan did state as a witness that the connected load of Rustam Ali had been increased by the Government to 9.116 kilowatts. This statement of his was‑challenged by learned counsel for the appellant who alleged that the learned' District Judge had called upon him to produce the order of the Government and he had failed to do so. I myself directed Shamsher Ali Khan who has throughout been present before me to produce the order if it did exist and he has failed to do so. I may also point out that according to the Deputy Chief Engineer of the defendant, Abdur Rashid D. W. 1, the connected load of Rustam Ali is only 4.492 kilowatts. for this is the connected load he mentions when stating his calcula tions as to energy consumed. Abdur Rashid (D. W. 1) has also admitted that for manufacturing ice the factory has to be worked in unrestricted hours so that if the defendant knew that Rustam Ali was manufacturing ice it also knew that he was consuming energy in unrestricted hours.

33. I begin now to consider issue No.

3. Sections 22 and 23 of the Pakistan Electricity Act of 1910 run :‑ "(22) Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled, on application, to supply on the same terms as those on which any other person in the same area is entitled in similar circum stances to a corresponding supply Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration. "23. (1) A licensee shall not, in making any agreement for the supply of energy, show undue preference to any person, but may, save as aforesaid, make such charges for the supply of energy as may be agreed upon, not exceeding the limits imposed by his license. (2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force. (3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer‑ (a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in the supply, or (c) by such other method as may. be approved by the Pro vincial Government. (4) Any charges made by a licensee under clause (c) of subsection (3) may be based upon, and vary in accord ance with, any one or more of the following considerations, namely :‑ (a) the consumer's load factor, or, (b) the power factor of his load, or (c) his total consumption of energy during any stated period, or (d) the hours at which the supply of energy is required."

34. Section 22 entitles every person to a supply of energy "on the same terms as those on which any other person is entitled under similar circumstances". (The proviso to section 22, which was intended, as will appear from pages 77 and 258 of Meares Law of Electrical Energy, for private generating plants, has no applica tion and has not been referred to during arguments). Section 23 prohibits undue preference.

35. The effect of these sections is that if the circumstances of one consumer are similar to that of another then the rate charged has to be the same, but if there be any material difference between the circumstances; the difference in rate is not bound to be commensurate with the difference in circumstances, because there is no provision to that effect. With any substantial difference in circumstances the licensee is at liberty to charge any rate subject to the maximum provided by his license. He is not bound to regulate his rates so that the percentage of his profit from all consumers is the same. This is not a happy result, but it appears that it cannot be helped. If the law directed that all rates be consistent and based on a uniform percentage of profits it would have to provide for a machinery to decide what rate should be charged from a customer in view of the rates charged from others and this may not have been regarded as desirable. So within the maximum the law gives full liberty to the licensee to charge any rates with the only condition that if circumstances are similarly terms must be the same. Of course, in determining whether circumstances are similar, we will only consider whether there is a material difference.

36. The plaintiff contends chat he is entitled to pay the same rate as was being charged from the Pakistan Ice Factory, that is 1/3 per. unit: (if he does not, succeed with respect to Rustam Ali who pays only 3 pice per unit). The case of the defendant respondent with respect to this factory is: (1) that the Pakistan Ice Factory had closed in 1950 and in any case by a notice its agreement had terminated ; (2) that the price of coal has risen and in accordance with clause 6 of the agreement of the Pakistan Ice Factory the respondent was entitled to raise the rate ; and (3) that the circumstances of the Pakistan Ice Factory and those of the plaintiff‑appellant are not similar within the meaning of section 22.

37. As. regards the first objection, let me state that whether the factory had closed or not is irrelevant for more than one reason. The requirement of section 22 is that a person should be "entitled" to a supply. Even though the factory had closed in 1950 because the allotment of Allah Ditta had not been renewed, the Pakistan Ice Factory (or Allah Ditta its proprietor) was still "entitled" to a supply at the rate of ‑/1/3 per unit. Whether the plaintiff was entitled to a supply at the same rate cannot depend on the accident of the allotment of Allah Ditta being renewed. The respondent is not concerned with whether the allotment was renewed or not. The only question is whether some person was entitled to a supply and that has to has to be answered in the affirmative. The connec tion may have stood in the name of Allah Ditta, even if the factory had been allotted, to another, and by an arrangement with Allah Ditta electric energy may have been received by the new allottee. The respondent could not have objected that because Allah Ditta was not the new allottee he was not bound to supply energy in accordance with his agreement.

38. The above would be the result if we regard 27th of March 1950, the date of the agreement with the plaintiff‑appellant, as the relevant date. However, the implication of section 22 is that a person should be entitled to the same rates as some other person is paying on the date on which he applies for a connection, and is prepared to comply with the requirements of the law for getting a connection. In accordance with clause VI of the Schedule to the Electricity Act which schedule is deemed to be incorporated in every licence granted under the Act, the licensee is bound to give a connection within one month of a requisition by any person within the area of supply. This one month is given to the licensee for making proper arrangements for supply for there has to be a wiring and a test demand report but the fact that some time is required for the completion of arrangements for supply cannot affect the right of the person who applies for a supply (or makes a requisition). The date on which application was put in by the plaintiff‑appellant in the present case is the 29th of June 1948 but as a connection could only be given with the sanction of the Government, I will, without conceding that this is necessary, take the date on which sanction was granted by they Government as the date of the application. That date is the of September 1949. The defendant‑respondent does not admit that the copy of the order sent to it by the Government reached it. I do not accept that statement nor do I accept that information to the defendant was necessary but on the 20th of November 1949 a copy had been personally delivered to the Manager, of the defendant. Even if we determine the question with reference to that date, the answer has to be against the defendant‑respondent The Pakistan Ice Factory was obviously entitled on that date to pay ‑/1 /3 per unit.

39. So far as the notice is concerned, it cannot be contended that it is in accordance with the agreement which requires "three months' notice in writing by registered: post". The notice is dated 27th February 1950, and states that the agreement has already expired which is not true. There is one statement in this notice which places the case of the plaintiff‑appellant beyond all doubt on this point. The notice says rates will be five annas per unit from the next season which admittedly began on the 1st of April. So according to this notice, the rate to be charged from the Pakistan Ice Factory on the 27th of March 1950, the date of agreement of the plaintiff, was only ‑/1/3 per unit. The Pakistan Ice Factory was entitled to a supply of electric energy not only during a season but during the whole year. So according to this notice, on the date on which the agreement with the plaintiff was entered into the rate chargeable from the Pakistan Ice Factory was ‑/1/3 per unit. Even if we entirely overlook the question of the date of the application and confine ourselves to the date of the contract, it has to be held that the plaintiff‑appellant was entitled to the same rates as the Pakistan Ice Factory (if .the circumstances be similar).

40. The contention as to increase of prices is without any substance. Clause 6 of the agreement Exh. D/13 on which reliance is placed runs :‑ "Clause 6.‑Revision of rate. The rate defined in clause 5 hereto will be subject to revision at the option of the licensee in the event of :‑ (a) The consumer failing to maintain the power factor of his consuming plant at 0.8. (b) The rates of the coal and other commodities going up beyond the margin of 50% of the prices ruling on 1.3.45. The consumer shall not remove, beak, remove or interfere with any of the licensee's seals and apparatus including the meter installed at the consumer's premises. Any meter or apparatus belonging to the licensee shall be and remain the property of the Licensee and shall not be connected, disconnected or unsealed by any person other than the authorised servants of the licensee. Any damage done to the licensee's apparatus or any other property at the consumer's premises caused through the act of the consumer, his servants or agents or any other person, shall be made good by the consumer." This clause requires a rise of more than 50% on the prices prevail ing on the 1st of March 1945 of coal as well as other commodities. The only evidence on this point is of Shamsher Ali Khan, Manager of the defendant‑respondent, who deposes that rates of coal rose in 1950, 1951 and 1952. There is no evidence at all as to the rates on the 1st of March 1945 and there is no reference also to any commodity other than coal. There is a general and vague state ment by Shamsher Ali Khan that cost of production of electric energy has gone up since 1950 because of the rise in prices of coal and because of the rise in price of machinery. This statement should have been supported by accounts in order that one may be satisfied as to the factum and the extent of the increase, but really this evidence is irrelevant in view of the wording of clause 6 which applies only to a more than 50% rise in prices of commodities with reference to the 1st of March 1945. It will be observed that in the notice sent to the Pakistan Ice Factory the respondent did not say that rate was being increased in accordance with clause 6 of the agreement.

41. It is also worthy of note, as observed by the trial Court, that the respondent does not allege enhancement of rate of any other consumer. On the other hand, it was admitted before the trial Court, as will appear from its judgment, that the same rates were being charged from these two factories as those charged from their Hindu predecessors before the Partition.

42. I proceed to consider now whether there was any differ ence in circumstances which could have justified the charging of a higher rate from the plaintiff than that according to which the Pakistan Ice Factory was entitled to a supply. Let me state that on the record there is no allegation, much less proof, that then, is any such difference in the circumstances of the Pakistan Ice Factory and the plaintiff. In the written statement all that was alleged was that cost of production had gone up. The defendant produced, as already stated, only two witnesses, Abdur Rashid, its Deputy Chief Engineer, and Shamsher Ali Khan, its Manager. Neither of them made any statement to the effect that on account of any difference in circumstances a higher rate than that allowed to the Pakistan Ice Factory was proper. The plaintiff's factory (Hilal Ice Factory) and the Pakistan Ice Factory are both factories producing ice and both are consumers in unrestricted hours. The only point of difference urged before me is that the load factor of the plaintiff is different from that of the Pakistan Ice Factory. The load factor for a particular period is the ratio which the actual units consumed by a consumer bear to the units which could be consumed had the maximum demand of the consumer been constant throughout the period. To illustrate, if the connected load of an installation be 4 kilowatts the total number of units which can be consumed in 24 hours would be

56. If actually only 28 units were consumed during 24 hours the load factor would be 5/10 or 50%. The load factor is relevant for the purpose of determining the rate because an electric power station is expected to keep in readiness energy sufficient to meet the maximum demand and has to bear the expense for producing such energy. If the actual consumption be much less than the maximum the cost of production would be higher and a higher rate would be justified.

43. In order to determine the comparative load factors of the Pakistan Ice Factory and the plaintiff we should be in posses sion of the actual figures relating to the two factories. Learned counsel for the defendant has not referred me to the actual figures so far as consumption by the Pakistan Ice Factory is concerned and has relied simply on the fact that according to the agreement of the Pakistan Ice Factory (Exh. D. 13) a minimum consumption of 60,000 units, during the summer season, had been stipulated. This, he says, should be regarded as the actual consumption. Let me proceed on that basis. It will be observed that beyond the season there was no minimum. The connected load of the Pakistan Ice Factory, that is, the maximum power of the installa tion in that factory, was 40 kilowatts. Total consumption in a year would be 3,50,400 units. Calculating on the basis that 60,000 units was the actual consumption, the load factor would be 60,000/3,50,400, i.e., about 17". Learned counsel for the respon dent urges that 60,000 units was fixed for six months and maximum consumption only for six months should be the basis of calculation The agreement with the Pakistan Ice Factory was for supply of energy during the whole year and not only during the summer season and it cannot be contended that beyond the six months that constitute the summer season the respondent was not to keep in readiness energy to meet the maximum demand of the Pakistan Ice Factory. I am, however, prepared (without conceding its correctness) to determine the load factor on a six‑months basis provided that the same treatment be accorded to the plaintiff and the units which the plaintiff consumes in the whole year be also regarded as having been consumed in six months. I am not saying that as a matter of fact the units would be confined to the summer months but I am at the same time not accepting that the Pakistan Ice Factory would not consume energy off season and I would place the two factories on the same footing. On the basis of six months the load factor of the Pakistan Ice Factory would be about 34%. So far as the plaintiff is concerned, his maximum consumption during a season would be 3,19,740 units. The units actually consumed in 1950‑51 (and which I will regard as consumed in the season) were 1,54,000 and the load factor for this period would be 50%. In 1951‑52, units consumed were 3,44,640, which would make the load factor more than 100%. Figures for 1952‑53, are not on record. For 1953‑54, the consump tion was 3,47,474 which again exceeds 100%.

44. Of course, there can be no load factor which exceeds 10/0. The correct method would be to consider the actual consumption of both factories as for the whole year. On that basis the load factor of Pakistan Ice Factory would be 17%, and that of the plaintiff 25% in 1950‑51, more than 53% in 1951‑52, and more than 40% in 1953‑

54. It will be observed that the load factor is favourable to the plaintiff. At the same time if one were to accept every contention of the defendant in respect of the matter of calculation of load factor, and were to regard the consumption of the Pakistan Ice Factory as 60,000 units for six months, still, while in the first year the load factor of the plaintiff would be only 25% as against 34% of the Pakistan Ice Factory, it would be higher in the succeeding years i.e., it would be more than 50% as against 34%. If the difference in load factors of the two ice factories was material then the plaintiff would be entitled to a lower rate. Butt do not think such little differences are material, and that is why during evidence there was no suggestion at all that there was any reason for charging the plaintiff a higher rate as compared with the Pakistan Ice Factory. That small differences in load factors of two otherwise similar consumers cannot be of N much consequence will also be clear if we consider the attitude of a licensee generally towards consumers. Do licensees calculate the actual consumption of those who use light or fans and charge different rates on that ground ? The load factors of all consumers who use light and fans are certainly not equal. Similarly from those who use electric energy for power uniform rates are charged even though their load factors are not the same. That small difference in load factors are not material in the case of similar concerns is also supported by the fact that according to the agree ment with the plaintiff (which is the subject‑matter of issue No. 4) the defendant agreed to charge the same rates as it charged from any other ice factory. The agreement says nothing about the load factor of the ice factory. The agreement shows the attitude of the defendant that if the consumer be an ice factory not much importance attaches to its load factor. Difference in rate is based on the variance in cost of production or the amount of profit that can be made. It is neither alleged nor demonstrated that in case of a small difference in load factor there will be such difference either in the cost of production or the expectancy of profit as will justify a variation of rate. In order to determine whether and if so what difference in load factor can create a material difference in the cost of production or the realizable profits, all the circum stances of the particular generating plant are to be considered, and it is only by a reference to those circumstances that the effect of a particular difference can be appreciated. There is no effort at all by the defendant to lay before the Court facts that will go to establish a difference in the cost of production or realizable profit as between the plaintiff and the Pakistan Ice Factory.

45. I have assumed for the purpose of calculation of load factor that the actual consumption of the Pakistan Ice Factory was 60,000 units because this factory was bound to pay for at least 60,000 units even if it did not consume them. But there is another way of looking at the matter which I regard as the correct one. The minimum consumption clause, relates not to the load factor but to the rate to be charged. Instead of saying that the rate is ‑/1/3 per unit, it should asked that the rate is ‑/1/3 per unit subject to a minimum payment of Rs. 5,000 per year. So regarded, the stipulation about minimum consumption, is not one of the circumstances mentioned in section 22 which are to be taken into consideration to decide whether one consumer is entitled to same terms as another, but one of the "terms" mentioned in that section. By circumstances in section 22 are meant the circum stances that affect the cost of production or the expectancy of the profit. The rate that is imposed or the payment that is agreed upon is no part of those circumstances. The effect of such a clause is to ensure a minimum payment and as regards the plaintiff the effect of this clause in the agreement of the Pakistan Ice Factory would only be that the plaintiff would also be liable to the payment of a corresponding minimum amount. (A stipulation for a minimum payment has been expressly made valid by clause XI‑A of the Schedule to the Electricity Act). Learned counsel for the plaintiff‑appellant stated with respect to this clause that he was prepared to give a guarantee of proportionate minimum consump tion. He was prepared to guarantee even larger consumption than that agreed to by Pakistan Ice Factory. His actual con sumption has been exceeding the minimum. In any case, all that the defendant could insist upon was that payment should be made for not less than the proportionate minimum and to this the plaintiff is agreeable. I find that there is no difference between the "circumstances" of the plaintiff and the Pakistan Ice Factory. I also find that the minimum consumption guarantee is not circumstance but one of the terms on which the plaintiff entitled to a supply, and the plaintiff too shall be subject to I proportionate minimum payment if he is to be charged the same rate as the Pakistan Ice Factory.

46. I now proceed to consider whether there is any dissimilarity between the circumstances of the plaintiff's factory and Rustam Ali's Ice Factory. Shamsher Ali Khan defendant's Manager, was asked while in the witness‑box whether he would be prepared to charge the same rates from the plaintiff as he was charging from Rustam Ali's Ice Factory. He said he would be prepared to do so if the following circumstances were equal :‑ (1) Time of consumption of energy. (2) Diversity factor. (3) Power factor. (4) Load factor, (5) Cost of generation. So far as the time of consumption of energy is, concerned, I have already shown that Rustam Ali is working in unrestricted hours and that this fact was known to the defendant. In fact an ice factory has to run and consume energy in unrestricted hours. This also is the reason why the defendant readily agreed, without any reference to hours of consumption, that it would charge the same rates from the plaintiff as it would from any ice factory.

47. So far as the diversity factor is concerned, there is no allegation at all that the diversity factor of the plaintiff is different from the diversity factor of Rustam Ali's Ice Factory. Shamsher Ali Khan was asked whether he had ever determined the diversity factor of Rustam Ali's lee Factory and he replied in the negative. Nor is there any allegation that the plaintiff's diversity factor was ever calculated. Let me explain what the diversity factor is: If consumers consume electric energy in the same hours the power station will have to produce greater amount of energy than if they consume energy in different hours. Electric lights are used at about the same hours. Therefore the power station has to produce energy at one time to meet all demands and this requires greater expense. If consumers use electricity at different hours then, for the same consumers, generation of less energy will be able to meet the full demand and there will be less expense. This is called the diversity factor. The diversity factor of con nections for light is unfavourable because energy is consumed in the same hours while, as will appear from Meares' Commentary on Electricity Act (p. 106), the diversity factor of all connections which use electricity for power is good for energy is used at various hours. It has not even been alleged before me in argu ments that the diversity factor of Rustam Ali's lee Factory is favourable as against that of the plaintiff.

48. As regards the power factor, there is again no allegation, much less proof, that there is a difference between the power factor of Rustam Ali's Ice Factory and the plaintiff's, or that the power factor of Rustam Ali's Ice Factory is comparatively favour able. Shamsher Ali Khan was asked in the witness‑box as to whether the power factor of Rustam Ali's Ice Factory was ever calculated and he admitted that it had never been calculated. Nor did he say that plaintiff's power factor had been calculated. The truth is that Shamsher Ali Khan does not even know what power factor is. I questioned him myself as to what power factor means and he told. me that it was the ratio between the actual consumption and the maximum consumption. I told him that he was in fact giving me the definition of the load factor and then he was able to say nothing more. Power factor is something technical which it is difficult for a layman to follow. Abdur Rashid, the Deputy Chief Engineer of the defendant, defined it as Volts X Amperes divided by possible real power. The expression is not defined in either of the two commentaries, on the Electricity Act which are available, that is, Meares and Ayars. I looked up Webster's Dictionary and found its meaning stated thus: "The rates of the true power and the Volt Amperes in an alternate current circuit or apparatus. In the case of simusodial current and voltage the power factor is equal to the cosine of their difference in power."

49. In view of the fact that there is neither material on the record nor any argument as to whether there is any difference in power factor, it is not necessary to pursue the matter any further.

50. The next point to determine is as to whether there is any difference in the load factor. I have already calculated the load factor of the plaintiff and found that it was 25% in 1950‑51, more than 53% in 1951‑52 and more than 54% in 1953‑

54. The maximum consumption of Rustam Ali's Ice Factory in the whole year would be 4.492 x 24 x 365 that is 39350 units. In the year 1950‑51 it consumed 21623 units so that its load factor in that year would be 51%. In 1951‑52 its consumption was 28265 units so that the load factor would be 71%. In 1952‑53 its consumption was 18196 units and the load factor would be 46%. In 1953‑54 the consumption was 5096 units and the load factor would be 12%.

51. It will be observed that while in 1951‑52 the load factor of Rustam Ali's Ice Factory is higher, in 1950‑51, 1952‑53 and 1953‑54 it is lower than the load factor of the plaintiff in 1951‑52 and 1953‑

54. In 1953‑54 it is less than half of 25%, the lowest load factor of the plaintiff which is for the year 1950‑

51. Learned counsel for the plaintiff explains that the load factor of the plaintiff for the year 1950‑51 is due to the fact that that was the first year of the factory and the normal load factor of the plaintiff, he contends, is that for the years 1951‑52 and 1953‑

54. There is nothing on the record to show that the plaintiff's con sumption has, except in the first year ever been below that for the years 1951‑52 and 1953‑

54. If any case just because of the 71 of Rustam Ali's Ice Factory in 1951‑52 it will be difficult to contend that the load factor of Rustam Ali is better than that ,of the plaintiff.

52. At one stage, in reply to a question from me as to why the defendant had done nothing to prevent Rustam Ali from continuing his consumption and had taken no steps to prosecute him, although he was, according to the order of the Government, a restricted consumer and was using energy in prohibited hours, learned counsel for the defendant‑respondent said that the res pondent was powerless and could neither disconnect Rustam Ali nor could prosecute him. It is not possible for me to accept this argument which would lead to absurd result that a licensee has no remedy whatsoever against a restricted consumer who begins consuming energy in prohibited hours. The defendant could well have prosecuted Rustam Ali under sections 47 or 39 of .the Electricity Act. He could also have moved the Government for prosecution of Rustam Ali under section 14 of the West Punjab Electricity (Emergency Powers) (Control of Supply) Act, 1949, which provides that any person who contravenes the direction given by the Provincial Government under section 3 or 4 of that Act shall be liable to punishment for a term which may extend to six months. The order of the Government restricting hours of supply had been passed under section 3 of the Act. It is true that while under the Electricity Act the licensee himself can launch a prosecution, under the Provincial Act prosecution can be launched only by Government or some officer authorised by it, but it was open to the defendant to have applied to the Govern ment for a prosecution of Rustam Ali. It never did so. The least that the defendant could do was to install in the connection of Rustam Ali the special meter which allows the consumption of energy only within certain hours. The defendant could also have, if Rustam Ali was persisting in using energy in prohibited hours, disconnect him. Shamsher Ali Khan admitted while under cross‑examination that by virtue of the power given to the defendant in clause 10 of Appendix L1 of the defendant's licence, a use of supply which interferes with other consumers can be the reason for disconnecting a consumer. It was alleged before me in Court, and admitted by Shamsher Ali Khan, that another consumer had been disconnected because being a restricted . consumer he had used energy in prohibited hours. At least the defendant could have approached the Provincial Government for discontinuance of supply to Rustam Ali because there is an express provision , in section 4 of the Provincial Act that in case a con sumer contravenes a direction issued under section 3 his supply may be discontinued.

53. I have not found the load factor of the Pakistan Ice Factory of Rustam Ali's Ice Factory to be better than that of the plaintiff, but let me explain the effect which a difference of load factor alone may have on the rates to be charged. If the load factor of customer `A' be 50% and that of customer `B' to be 25%, then in the absence of any special circumstance the only effect can be that the rate charged from `B' should be double of that charged from `A'. If the only objection of the licensee be that the consumer is not consuming a particular number of units and if it be conceded that if he consumes that number of units the licensee would charge him a lower rate, then certainly the licensee could at the most charge him the amount which he would have charged if :the consumer had consumed that number of units. The rate can only vary in a ratio which is inverse to the proportion between load factors of the two consumers. Actually, by charging a' rate which varies inversely to the proportion between load factors the licensee would be a gainer and not a loser. To take an example, suppose the total number of units consumed by `A' is 100 and he is charged one anna per unit, while the total number of units consumed by `B' whose connected load is the same is 50 units and he is charged two annas per unit. Here the licensee is getting one hundred annas in both cases although in the case of `A' he is generating 100 units and for `B' he is generating only 50 units. In any case, all that the licensee can insist upon is that he should charge the consumer the same amount as he would have charged if the load factor which is maintained by another consumer had been maintained by this consumer. The licensee certainly cannot ask for more.

54. The last circumstance mentioned by Shamsher Ali Khan is the cost ;of generation. There is no proof at all on the record that the cost,: of generating the units which are to be supplied to the plaintiff is ,proportionately larger than the cost of units supplied to kustam.Ali. Probably the argument has reference to the load factor alone, otherwise the plaintiff being a big consumer the cost of generation would in accordance with the ordinary rule be lower than that of the units supplied to Rustam Ali. The larger the amount consumed the lesser, should be the proportionate cost.

55. I do not find any difference favourable to Rustam Ali's Ice Factory in the circumstances of that factory and those of the plaintiff. There would rather be a difference in favour of the plaintiff as he is a much bigger consumer. The only contentions put forward on behalf of the defendant‑respondent as regards Rustam Ali being that the circumstances were different and that it was not an ice factory, I would have held if I were to confine myself to the argument of learned counsel for the defendant respondent, that to Rustam Ali's Ice Factory too section 22 was applicable and that the plaintiff was entitled to pay the rate charged from Rustam Ali. It appears to me, however, that in spite of there being no difference in circumstances, at least none favourable to Rustam Ali, section 22 does not apply to this factory. The reason is that section 22 applies only, to a case where a consumer is "entitled" to a supply on certain terms.. Is Rustam Ali entitled to a supply during unrestricted hours at 0/0/9 per unit for manufacturing ice? He is not. It is to be remembered that according to the order of the Provincial Government passed under section 3 of the West Pakistan Electricity (Emergency‑Powers) (Control of Supply) Act, Bal kishan and Topan Dass were entitled to a supply only in restricted hours. Rustam Ali is only their successor, being the transferee of the connections in them favour. He is entitled to a supply admittedly only in restricted hours. At the same time, it is a condition of the transfer in his favour, as sanctioned by the Government, that the industry be not, changed. The industries mentioned in the two connections of Bal Kishan and Topan Dass and also stated in the order of transfer are coca storage and cooling. These are admittedly different from an ice factory. True, the defendant has been allowing Rustam Ali to work in unrestricted hours and to run an ice factory but all this is illegal. The defendant would be entitled ,to take steps at any time to prevent Rustam Ali either from :working in unrestricted hours or from manufacturing ice. The defendant even now could install a special meter which allows supply only in restricted hours. The defendant could also take other steps for discon necting him or preventing him from manufacturing ice. It is riot possible for me, therefore, to hold that Rustam Ali is entitled to a supply in circumstances which are similar to those of, the plaintiff even though he is actually getting a supply in such circumstances.

56. As a result, the plaintiff cannot, under issue No. 3, rely on the rate which is being charged from Rustam Ali. So far as issue No. 3 is concerned, the plaintiff would be only entitled, to the terms on which the Pakistan Ice Factory was entitled to a supply. However, this would not mean that for all times the plaintiff would become entitled to pay the rate which was being, paid by the Pakistan Ice Factory. Similar circumstances entitle the plaintiff only to the same. terms. A period of supply is also a term of the contract. The agreement with the Pakistan Ice Factory was from year to year and could be terminated by a three months' notice. No valid notice had been given at the: time when the plaintiff entered into a contract with the defendant,' but the moment a valid notice was given or for some reason the period of that agreement came to an end, the plaintiff would lose the right which he has under section 22 to pay the same rates as the Pakistan Ice Factory. He was entitled only to what the Pakistan Ice Factory was entitled and if that factory was no more entitled to receive supply at a particular rate the same would apply, to the plaintiff. After terminating the agreement with the Pakistan Ice Factory it was open to the defendant to claim a higher rate from that factory and if that rate did not exceed the maximum mentioned in the defendant's licence and was not opposed to section 22 on account of the rate of some other consumer, the defendant would be entitled to the new rate which it demanded. Therefore, if this case were to be decided on the basis of the agreement of the Pakistan Ice Factory, a further inquiry would have to be made as to how long that agreement remained in force. My finding on issue No. 4 however, as will appear later, renders such inquiry unnecessary.

57. I will deal now with the finding of the learned District Judge on issue No.

3. The learned Judge did not refer to the case of the Pakistan Ice Factory at all. It could not have been expected, considering the tough fight that was going on between the parties, that this case had not been relied upon during argu ments, but I have even made inquiries from counsel and am satisfied that this point was argued. The learned District Judge may not have considered it necessary to refer to the Pakistan Ice Factory because of the fact that it had been sealed in 1950, but that, as has already been explained, could not have excluded from consideration the rate paid by that factory. As regards Rustam Ali's Ice Factory, the learned District Judge came to the conclusion that the circumstances of that factory were different. What was urged before him on behalf of the defendant‑respondent in connection with Rustam Ali was the agreement with Rustam Ali was for a supply of energy during ten hours daily ; the defendant, therefore, had to generate and keep in readiness for Rustam Ali only 19,440 units in a year ; Rustam Ali, however, actually consumed 20565 units in the year 1950‑51, which shows he is a good customer ; on the other hand, the plaintiff being an unrestricted consumer the defendant had to generate and keep in readiness for him during the whole year 713064 units but in the year 1950‑51 he utilized only 154015 units and, therefore, he was a bad customer. The learned Judge seems to have accepted this line of reasoning. (It will be observed that the learned District Judge had calculated the units of the plaintiff on the basis of a connected load of 81'4 kilowatts which, as admitted by Shamsher Ali Khan, is not correct, the connected load being only 73‑161 units). The learned Judge has taken the consumption of the plaintiff only for the first year when it was lowest and less than half of his consumption in later years, but let us consider the argument. In accordance with this argument if a consumer is entitled under his agreement to receive a supply in any specified hours but begins to use energy in all hours so that his actual consumption even exceeds the maximum which he could consume during his restricted hours (the maximum of Rustam Ali was 19,440 and his actual was 21565), then he becomes a good customer from whom lower rates should be charged. So if all consumers were by their agreement only res tricted consumers but they all used energy in all the twenty‑four hours, then they would be, according to this agreement, good consumers and the use of the energy in unrestricted hours by restricted consumers which is an offence under the Provincial Act would be rather a ground for reduction in rate. The argu ment put forward is that though such consumers use more energy, the defendant, as a matter of fact, keeps in readiness for them only the maximum amount required by their agreements. The ideal consumer according to this argument, would be the thieves who have connection whatsoever, for the licensee does not at all keep in readiness any energy for them. Is thieves were, somehow, made to pay for what they actually consumed, they should be charged very low rates.

58. The argument fails to take notice of the fact that those restricted consumers who begin consuming energy in unrestricted hours do not, in the first place, use all the energy which is generated for them during the restricted hours. The major portion of their consumption may relate to prohibited hors. In the second place, they use energy at a time when there is no energy being generated for them and thus there is improper interference with the use of energy and if there be a sufficient number of such unauthorised consumers the result would be a break‑down in the power station, for the power station in generating energy does not take into account use at unauthorised hours. However, there is another objection to the argument and that is that the assumption that the defendant is keeping in readiness for Rustam Ali energy only during restricted hours is wrong. By the order of the Government Rustam Ali is a restricted consumer, but in fact he is not a restricted consumer. With the knowledge of the defen dant he uses energy at unrestricted hours and the defendant is keeping in readiness energy for him not only in re0tricted hours but during all hours. It is incorrect that the defendant generates for him only 19,440 units and he consumes even more than that.

59. My finding on issue No. 3 is that there is no difference in the circumstances of the plaintiff and the Pakistan Ice Factory. So far as the minimum of 60,000 units of the Pakistan Ice Factory is concerned, that is only a term of the payment of a minimum charge. Such a term is permissible under clause XI‑A of the Schedule to the Electricity Act of 1910. All that the defendant can insist upon is that if the rate of the Pakistan Ice Factory is to be applied to the plaintiff then there should at the same time be a proportionate minimum charge. So far as Rustam Ali's Ice Factory is concerned, there is no difference favourable to Rustam Ali but that is, for reasons already stated, not of any effect so far as issue No. 3 is concerned.

60. I have fully considered whether there could be any reasonable ground for the great difference in rate which was charged from the present plaintiff. I have not the least doubt in my mind that the rate which was charged from the plaintiff was not based on a calculation of what would be reasonable profits. or with a view to charge from him the same percentage of profits as the defendant was charging from other consumers. On the question of undue influence I have not held in favour of the plaintiff because I am unable to say that he was helpless in the circumstances, but I have no doubt that the rate charged was not fair. In 1948, the defendant had entered into an agreement with the Pakistan Ice Factory to charge only ‑/‑/3 ref unit. There is no allegation, much less proof, that between the rates of coal and other commodities in the year 1948, and the rates in the year 1950, there is any difference as would justify arise from ‑/‑/3 to ‑/5/‑. I am not accepting that there was justification for any increase at all, but it could not even be contended that such a great variation had real basis in any change of circumstances;

61. When Shamsher Ali Khan was in the witness‑box he was asked whether there was any other unrestricted consumer which was being charged five annas per unit and he said he did not know. In spite of this challenge in cross‑examination the defendant did not place on the record any agreement relating to any customer showing any rate even near five annas. At one stage, it does appear, an allegation was made on behalf of the defendant that Pir Budhan Shah Was paying the same rate. Pir Budhan Shah is a director of the defendant company. No bill or agreement relating to him was produced and I do not attach any importance whatsoever to this allegation. While Shamsher Ali Khan was under cross‑examination the plaintiff applied that he should file a list of unrestricted consumers with the rates charged from them. The record does not show as to what happened to this application and learned counsel, who appeared before me, are unable to throw any light on the matter. The fact remains that no list was filed and the rates of the consumers were not brought by the defendant on the record. In view of this application, 1 myself called upon the defendant‑respondent to produce the agreements of some unrestricted consumers. The defendant has produced the agreements of the Colony Textile Mills, Nishtar Medical College, the Pakistan Refugee Rehabilita tion Finance Corporation and the Inspector‑General of Prisons. These are all cases where the supply is not exclusively for power and in the case of three agreements it appears to be more for light and fans than for power. Admittedly, the rates charged from light and fans are higher than those charged for power. Yet I find that these rates are much lower than the rates charged from the plaintiff. The rates charged from these consumers are in accordance with the load factor which they maintain. The highest rate charged is three annas per unit and the lowest rate charged is ‑/1/8.

62. I proceed to consider now issue No.

4. The relevant clause in the agreement Exh. P. 4 is to the following effect :‑ "In case your company charged any other ice factory rates lower than charged to me, I will be entitled to the rates charged to the other factory." The first contention of learned counsel for the respondent with respect to this clause is that it is void because it contravenes section 21 (2) of the Electricity Act. Section 21 runs :‑ "21. (1) A licensee shall not be entitled to prescribe any special form of appliance for utilising energy supplied by him, or save as provided by section 23, subsection (2), or by section 26, subsection (7), in any way to control or interfere with the use of such energy Provided that no person may adopt any form of appliance, or use the energy supplied to him, so as unduly or improperly to interfere with the supply by the licensee of energy to any other person. (2) Subject to the provisions of subsection (1), a licensee may, with the previous sanction of the Provincial Government, given after consulting the local authority, where the licensee is not the local authority, make conditions not inconsistent with this Act or with his license or with any rules made under this Act, to regulate his relations with persons who are or intend to become consumers, and may, with the like sanction given after the like consultation, add to or alter or amend any such conditions; and any conditions made by a licensee without such sanction shall be null and void Provided that any such conditions made before the 23rd day of January 1922, shall, if sanctioned by the Provincial Government on application made by the licensee before such date as the Provincial Government may, by general or special order, fix in this behalf, be deemed to have been made in accordance with the provisions of this subsection. (3) The Provincial Government may, after the like consulta tion, cancel any condition or part of a condition previously sanctioned under subsection (2) after giving to the licensee not less than one month's notice in writing of its intention so to do. (4) Where any difference or dispute arises as to whether a licensee has prescribed any appliance or controlled or interfered with the use of energy in contravention of subsection (1), the matter shall be either referred to an Electric Inspector and decided by him or, if the licensee or consumer so desires, determined by arbitration." Learned counsel relies on the provision in subsection (2) that any condition made by a licensee with a consumer without the sanction of the Provincial Government is void. He contends that the clause quoted above contains a condition which has not been sanctioned by the Government. The Government, he says, has allowed the defendant to agree to certain rates subject to a maximum but it has not allowed the defendant to enter into an agreement for conditional rates.

63. The argument is without force. Clause 14 of the defendants's conditions of supply says the price and method of charging for current shall be such as may from time to time be fixed by the licensee in accordance with the provisions of the Electricity Act and his licence or such as may be made the subject of special agreement between the licensee and the consumer. This clause gives the licensee full liberty to enter into an agree ment with the consumers subject only to this that he does not contravene what is laid down in the Act or in his licence. There is nothing either in the Act or in the defendant's licence prohibiting it from entering into a contract that the rate which it charges from one ice factory shall also be charged from another. On the other hand, such an agreement gives effect to the substance of sections 22 and 23 of the Electricity Act. The clause under discussion only means that the defendant accepts the circumstances of all ice factories to be the same so that the plaintiff's ice factory shall be entitled to the same rates as those charged from another. Had this clause not existed the plaintiff could still go to Court and demand that his rates be the same as those charged from other factories. In that case the Court would have to determine whether the circumstances of the other factories were not different. By this clause the defendant has waived his objection on the ground of dissimilarity of circumstances. 64. (Quite apart from sections 22 and 23, permission of Government that the defendant could make any special agreement as to rates includes a permission to have conditional rates. The r Government has only provided a maximum for the rates. It those rates are not exceeded, the licensee is at liberty to make any agreement as to payment of rates).

65. Learned counsel for the respondent relies on Saila Bala Roy v. Chairman Darjeeling Municipality (A I R 1936 Cal. 265) wherein it was held that without agreement with the consumer even a minimum charge could not be imposed. Learned counsel relies only upon that part of the judgment which says every condition requires the sanction of the Government. That proposition I accept. The judgment is otherwise of no application.

66. If I were to accept the argument of learned counsel that this clause is void, what would be the result? The result would be that the whole agreement with respect to the rates would be void, for this clause is an integral part of the agreement. However the effect of the agreement becoming void would not be as the learned District Judge seems to have imagined when dealing with undue preference. The right to a connection is given by clause VI of the Schedule to the: Electricity Act and is not depen dent on any agreement. Every consumer can continue to receive energy subject only to compliance with the Act and the payment of a price. The price can be named by the licensee but it is for the Court to determine whether it is not excessive in view of sections and 23 of the Electricity Act:

67. The contention of the learned counsel for the defendant with respect to the applicability of this clause in the agreement to the Pakistan Ice Factory is that the words "in case your company charged" relate to the present and the future and cannot ‑ ‑refer merely to the past. The defendant, he asserts, is not shown to have actually charged any amount from the Pakistan Ice Factory subsequent to this agreement. I agree that these words do not refer to a past event but I am not prepared to accept that the actual supply of energy after the date of agreement is essential. If after the date of the agreement any ice factory was entitled to supply of energy at a particular rate then it could very well have said that the defendant was charging that rate from that icy factory. The applicability of this clause cannot be made to depend on the accident whether in fact the Pakistan Ice Factory used some energy or on the conduct of the defendant in not sending a bill at all. The connection existed and the right of the Pakistan Ice Factory to receive energy also existed. Will it be reasonable to hold that if the Pakistan Ice Factory did some day use one unit after the plaintiff had entered into this agreement, then this clause would apply and the plaintiff would be entitled to the rate charged from the Pakistan Ice Factory, but that if as a matter of fact no energy was supplied it would not be so entitled? Or suppose energy was used but the defendant did not send a bill. Could it then be contended that the defendant was not "charging" any amount from the particular consumer ? I am of the opinion that the word `charge' would here cover cases (1): where actually a charge is being made; and (2) where although there is no actual charge made, the defendant is under obligation to supply energy at a particular rate. Any other inter pretation would lead to unreasonable results.

68. Another argument put forward on behalf of the defendant is that no agreement in the form attached to the defendant's license had been executed by the plaintiff, therefore the plaintiff would be liable to pay, on account of clause 13 of the defendant's Conditions of Supply, the maximum rates men tioned in those conditions. Clause 13 runs :‑ "The licensee may require any consumer to enter into an agreement (in the form given in Appendix `D' to these rules) and to deposit security. In case no formal contract is entered into between the licensee and the consumer, the latter, if once the supply has commenced, shall be bound by the terms and conditions of supply herein set forth."

69. Learned counsel contends that if no formal agreement is executed then the maximum rates mentioned in the Conditions of Supply should be applicable. I find little force in this conten tion. I have already quoted clause 14 of these Conditions which says that the licensee can enter into any agreement as to price with the consumer. Clause 13 does not mean that if a formal agree ment in the form appended to the Conditions of Supply is not executed then all the valid agreements between the licensee and the consumer become void. Where a Condition of Supply itself says that there can be an agreement between the parties in respect of a particular matter, there is no bar to such an agreement without the execution of a formal agreement. The effect of clause 13 is simple. We have to assume that an agreement in Form D has been executed between the parties. Now if we assume that such an agreement has been executed, what is the result ? The agreement only says that with respect to rates the licensee can have a special agreement and that agreement is provided in Exh. P.

4. I am altogether unable to see how clause 13 of the Conditions of Supply renders this agreement invalid.

70. I would hold that to the case of the Pakistan Ice Factory the clause in dispute is applicable and the plaintiff would be entitled to pay the same rate as the Pakistan Ice Factory was paying. As regards Rustam Ali's Ice Factory, I held under Issue No. 3 that on account of the words "entitled to supply" that occur in section 22 the case of that factory is not one on which the plaintiff could rely. However, under issue No. 4 the plaintiff is entitled to the same rates as are charged from Rustam Ali, because the scope of the clause in dispute is wider. The difference between section 22 and the clause in dispute is that here only the word "charges" is mentioned while in section 22 the words used are "entitled to a supply." Rustam Ali's factory is in fact being charged ‑/‑/9 per unit although it is true that Rustam Ali is not entitled to those terms because the sanction of the Government is for restricted hour's and for Cold Storage and Cooling. The substance of the disputed clause is that if the defendant can make a profit while charging a lower rate from another ice factory it should not charge a higher rate from the plaintiff. It cannot be contended, and really it has not been contended before me, that the word "charge" would not cover the case of Rustam Ali's Ice Factory. The defendant is, with full knowledge of facts, charg ing Rustam Ali only ‑/1/3 per unit less ‑/‑/6 rebate. All that was contended by learned counsel for the defendant‑respondent with respect to Rustam Ali was that the circumstances were different and that it was not an ice factory. So the plaintiff is entitled to pay only ‑/1/3 per unit less ‑/‑/6 rebate that is 3 pice per unit. But as I read the clause in dispute it will entitle the plaintiff to pay at a rate less than ‑/5/‑ only as long as the defendant is charging that rate from Rustam Ali. If the rate of Rustam Ali increases the plaintiff shall also have to pay that rate and if Rustam Ali becomes a restricted consumer or stops the manufac ture of ice the plaintiff will not be able to take advantage of the rate paid by him.

71. Let me now state my conclusions in brief. The agree ment with the plaintiff for charging five annas per unit is hit by sections 22 and 23 of the Electricity Act as a case of undue pre ference because of the agreement entered into by the defendant with the Pakistan Ice Factory. But section 22 entitled a person only to the terms under which another consumer is entitled to a supply and a term includes even the period of supply. If this suit were to be decided on the basis of sections 22 and 23 with reference to the Pakistan Ice Factory, a further inquiry would have had to be made with respect to the period for which the agreement of that factory remained in force. So far as issue No. 4 is concerned, the plaintiff is entitled to pay the rate paid by the Pakistan Ice Factory or Rustam Ali's Ice Factory. The rate of Rustam Ali's Ice Factory is lower, being ‑1/3 per unit less rebate of ‑/‑/6 that is 3 pice net per unit and, therefore, I hold that the plaintiff is bound to pay only according to that rate. However, the plaintiff would be entitled to pay according to that rate only as long as the defendant is charging that rate from Rustam Ali under existing conditions. It is open to the defendant to stop charging that rate from Rustam Ali. It is open to the defendant also to prevent him from using energy in unrestricted hours either by installing a special meter or otherwise. It can also take steps to disconnect him, or to prevent him from running an ice factory because the sanction is only in respect of cold storage and cooling. If either the defendant begins charging higher rates from Rustam Ali or Rustam Ali's Ice Factory is prevented from ma nufacturing ice or from working in unrestricted hours the clause in the agreement of the plaintiff would not be applicable and the plaintiff would be no longer entitled to the rate paid by Rustam Ali. Any further dispute then arising between the parties, would have to be settled unfortunately by a second suit which may have reference to the circumstances prevailing at that time: If there be no case of an ice factory paying less than five annas and if there be no case on account of which the plaintiff is entitled under section 22 to pay a lower rate, the plaintiff will be forced to pay the rate of five annas per unit.

72. The result is that this appeal is accepted and it is declared that as regards the period that has expired the plaintiff is liable to pay the defendant only at the rate of 3 pice per unit. As regards the future, the defendant is directed to charge from the plaintiffs the same rate as it charges, from Rustam Ali and is debarred from charging a higher rate. But it shall be open to the defendant to shoe what either Rustam Ali's consumption has been confined to restricted hours or he has ceased to manufacture ice, and if the defendant establishes either of these two facts the injunction shall come to an end. The question as to whether either of these facts has come into existence shall be determined by the executing Court. But if it is found that either of two facts has come into existence and, therefore, the injunction has come to an end, the question as to what rate shall then be payable, if the plaintiff objects to payment of ‑/5/‑ per unit shall have to be determined by a separate suit to be filed by the plaintiff. The plaintiff shall. have his costs in all Courts. Leave is granted for Letters Patent Appeal. A. H. Appeal accepted.