1989 PLP 3306 (MLD)

S.24--Electricity charges-- -Disconnection of electric supply--Consumer had paid for providing C.T. Coils and for testing fee--Department, on non-payment of charges/arrears, held. was not justified in removing such equipment on ground that arrears were not paid. (e) Civil Procedure Code (V of 1908)

S.115--Revision--Concurrent findings of fact recorded by Courts below no; shown to be either suffering from any material irregularity or illegality and no evidence had been misread or misconstrued or kept out of consideration-Interference declined in revision. Sardar Amanullah Khan Niazi for Petitioner. Respondent in person. Date of hearing: 23rd November, 1988. In this revision petition judgment and decree, dated 25-5-1988 passed by he learned Additional District Judge, Sargodha, dismissing the petitioner's appeal against the judgment and decree, dated 20-10-1986, passed by the learned trial Court decreeing the suit of the respondent has been challenged. 2. The respondent filed a suit for declaration that the electricity bill raising demand against the said respondent of Rs.6,281.44, dated 3-11-1981 and bill, dated 9-11-1981 for an amount of Rs.1,584.34 was illegal and he was not liable to be charged for consumption of any electricity after May 1981 etc. etc. The learned trial Court after framing issues and recording evidence decreed the suit, by judgment, dated 20-10-1986 against which appeal filed by the petitioner was dismissed through impugned judgment, dated 25-5-1988. 3. Learned counsel for the petitioner mainly argued that the onus of issue No.2 was on the respondent/plaintiff, therefore, he should have got his own statement in affirmative evidence before the evidence of the petitioner was recorded and could not reserve the said statement for getting it recorded after the evidence of the petitioner/defendant was over, therefore, the petitioner has been prejudiced and did not have the opportunity to rebut the statement of the respondent/plaintiff. He also argued that the amount which was demanded through disputed bills was not as a matter of fact the electricity actually consumed, but the said amount was recoverable as minimum charge as according to instructions if the consumption of units is very low, a consumer can be charged a minimum amount. He further argued that so far as bills for actual consumption of the electricity were concerned they had been paid. 4. I have examined the oral as well as documentary evidence, certified copies of which have been placed on the record with the assistance of the learned counsel for the petitioner. Learned counsel for the petitioner admitted that it was a case of seasonal connection, whereafter the season was over the connection was disconnected on the request of the consumer and thereafter on the start of the next season the same had to be re-connected on his request. The case of the respondent was that after the previous season was over the electricity was disconnected from May 1981 and thereafter it was not reconnected. Learned counsel for the petitioner has not been able to point out any evidence on the record that it was so reconnected. He, however, placed reliance on Exh. D.16 to argue that the respondent could be charged the minimum amount because there was no permanent disconnection of the supply and it was a case of temporary disconnection. I have gone through Exh. D.16, in para. 2 of which it has been made clear that temporary disconnection of supply should be treated as permanent and in case the disconnected consumer does not apply for reconnection within 120 days of the date of temporary disconnection of supply, no fixed charges should be debited to his account. The matter has been put beyond any doubt as in the following para. 3 of the said document it is provided that if dis-connected consumer applies for reconnection within 120 days of the date of temporary disconnection of supply the supply to his premises should be restored only after recovering fixed charges for the entire period of disconnection of supply. In para. 4 of this document it has further been clarified that if such a consumer does not apply for reconnection before the expiry of 120 days no fixed charges should be debited to his account but the service line and other equipment and apparatus for the supply of energy placed in or upon his premises should be removed forthwith and returned to department?s store through proper store return warrants. In view of these express instructions learned counsel for the petitioner could not justify as to how the demand from the respondent of fixed charges could be raised. As to the argument that statement of respondent/plaintiff his affirmative evidence was recorded after the evidence of the petitioner, the same has not been established to have caused any prejudice to the petitioner, as no such ground was raised in the memo. of appeal before the learned lower appellate Court. From the oral as well as documentary evidence produced by the petitioner it is clear that in no manner they were in doubt as to what was the real question in controversy between the parties. It was clear to the petitioner that it had to justify the demand raised against the respondent on the basis of minimum charges formula, therefore, they produced ir. evidence the said document as Exh. D.16. The argument is, therefore, repelled. It was for the petitioner to raise this objection. before the learned lower appellate Court which is a Court of appeal both on facts and law and also demonstrate that such a procedure had prejudiced the case of the petitioner on merits. This argument cannot be allowed to be raised at this stage. 5. Learned counsel for the petitioners with reference to Exh.D.3 and' Exh.D.4 argued that the respondent through these applications requested for reconnection of the electricity, therefore, he was liable to pay minimum charges as the requirement of Exh.D.16 was fulfilled. This argument is without any substance. Exh.D.3 is a copy of application moved by the respondent in which he requested for re-consideration of bill of Rs.1,262 and through Exh.D.4 which is, also copy of an application moved by him, he requested not to remove the Transformer. In any of these documents there is no express request for reconnection of supply of electricity within the stipulated time as envisaged by the above-mentioned instructions contained in Exh.D.16. Even if it be assumed that the respondent through these documents requested for reconnection, he could not be made to pay minimum charges for the entire period the electricity remained disconnected because such a payment was required to be made only if the reconnection was allowed. According to Exh.D.16 if the reconnection of the electricity had been made only in that event the respondent could be charged the minimum charges for the enter a period the electricity remained disconnected. This argument is thus based on mis-reading of these two documents Exh.D.3 and Exh.D.4 and mis-conception of the true legal import of the instructions on the subject as contained in Exh.D.16 discussed above. . 6. So far as issue No.3 is concerned it has been found by the Courts below that the petitioners were not justified to issue equipment removal order as the equipment was purchased by the plaintiff/ respondent, therefore, they had no justification to remove it because arrears were not paid. It was also held that it C was the plaintiff who provided 3 C.T. Coils to the defendants/petitioners and also paid Rs.90 as testing fee vide receipt Exh.P.1, therefore, it was incumbent upon the petitioners to install 3-phased meter in the premises of the plaintiff which was not installed which fact is fully supported by Exh. P.1 and Exh. D.2 respectively. Learned counsel for the petitioners has not been able to satisfy me that the concurrent findings of facts recorded by the two Courts below on issues Nos.2 and 3 suffer from any material irregularity and illegality. No evidence has been misread, misconstrued or kept out of consideration. No case has been made out for interference by this Court in the impugned judgments of the two Courts below under section 113, C.P.C. The `revision petition fails which is hereby dismissed without any order as to costs. M.Y.H./W-63/L Revision dismissed.