2007 PLP 2438 (YLR)

SH. AZMAT SAEED, J.

This appeal under section 96 of the Civil Procedure Code is directed against the judgment and decree dated 7-2-2005, whereby suit filed by the predecessor-in?interest of the present appellants was dismissed.

2. Brief facts leading to the filing of this appeal are that the predecessor-in?interest of the appellants claimed to be in occupation of premises where he was running a business, inter alia, of dyeing of cloth in the name and style of Farooq Dyeing Industries. It was alleged that four separate meters were installed at the premises, which were in the name of various persons. However, the said predecessor-in-interest of the present appellants was, admittedly, a consumer thereof. On 12-4-1995, respondent No.4, it is allegedly, went to the premises in question and alleged demanded illegal gratification, which was refused. Subsequently, on the same date, one of the meters installed at the premises was removed. In the above perspective on 16-4-1995, the predecessor-in-interest of the present appellants filed a suit for declaration and permanent and mandatory injunction against the respondents wherein it was prayed that the plaintiff in the said suit is entitled to receive electricity from the three meters still operating and it was further prayed that the respondents be directed to reconnect the removed meter. The said suit was contested and eventually decreed as prayed for vide judgment and decree dated 19-9-1998. Respondents filed an appeal, which was partially accepted by the First Appellate Court vide the appellate judgment and decree dated 4-1-2000, whereby the judgment and decree of the trial Court dated 19-9-1998 was partially modified to the effect that the relief of reconnection of the removed meter stood declined.

3. Almost simultaneously the predecessor-in-interest of the present appellants on 2-7-1995 filed a suit for recovery of damages of Rs.27,02,200 on account of alleged loss suffered as a consequence of the alleged mala fide removal of the said meter. The said suit was resisted, issues were framed, evidence was led, whereafter vide judgment and decree dated 7-2-2005 the suit was dismissed. It is the said judgment and decree dated 7-2-2005 which has been challenged vide the instant appeal.

4. The learned counsel for the parties have been heard and the record requisitioned from the trial Court has been perused. It is contended by the learned counsel for the appellants that the trial Court has failed to appreciate that the suit had been filed by an individual and not by unregistered firm. It is also contended that the trial Court has failed to take into account that the actions of the respondents had already been held to be illegal during the course of the previous litigation. The , contentions have been controverted by the learned counsel for the respondents, who has vehemently argued that the previous round of litigation has, in fact, ended in favour of the respondents.

5. There can be no escape from the fact that the predecessor-in-interest of the present appellants was aggrieved by the action of the respondents of removing a meter. In respect of the said grievance, two separate suits were filed, one for declaration and injunction and the other for damages. The first suit for declaration and injunction was decreed and subsequently the said decree was partially modified in appeal. Both counsel heavily relied upon the said judgments and decrees in the previous round of litigation i.e. the decree of the trial Court dated 19-9-1998 and that of the appellate Court dated 4-1-2000. Obviously the said judgments and decrees have a direct nexus and profound legal effect on the subsequent suit filed by the predecessor-in-interest of the present appellants from which the instant appeal F arises. Such effect would include question of maintainability of the subsequent suit as well as question of res judicata. A perusal of the impugned judgment and decree reveals that the impact of the aforesaid judgments and decrees dated 19-9-1998 and 4-1-2000 has not been taken into account. In the circumstances, it is clear and obvious that the real matter in controversy between the parties has escaped adjudication. Thus, the impugned judgment and decree dated 7-2-2005 is not sustainable, hence, is set aside and the case is remanded to the trial Court for a decision afresh on all issues in the light of the above observations. If necessary, the trial Court may frame fresh issues if claimed by the parties. Consequently, this appeal is accepted and the case is remanded in the above terms and the trial Court shall finally conclude the matter within nine months from the receipt of this order. S.A.K./M-325/L????????????????????????????????????????????????????????????????????????????????? Case remanded.