Kamal Kishore v. Bses Rajdhani Power Ltd

judgment decree of the trial court dated

21.02.2005 upheld by the appellate court. Hence, the second appeal filed under'Section 100 CPC.

¶4Ms. Neha Gupta, learned counsel for the appellant has submitted that substantial question of law involved in the second appeal is that first appellate court did not decide the appeal on merits and dismissed the same for the reason that the court fees has not been paid and simplicitor suit for permanent injunction was not maintainable in view of the judgment of Sarjiwan Singh's case (supra) whereas appellant never refused to pay the court fees.

¶5It is further submitted that since inspection report prima facie was illegal, the appellant rightly did not claim the relief of declaration because bill being illegal, did not need any declaration from the court and the only remedy available to the appellant to seek relief of mandatory perpetual injunction against the department. Page 3 of8 Sr

¶6Submissions ciiallenging tlie dismissal of tlie suit by the trial court upheld by the appellate court for the reason of non-payment of court fees are not tenable. The judgments of the courts below are silent on the question of court fees required to be paid by the appellant. It is pertinent that, though appellant has alleged that he never refused to pay the court fees, even in the appeal, he has not paid court fees. Since courts came to conclusion that simplicitor suit for permanent injunction not maintainable, there no occasion for courts below to deal with question if proper court fees was not paid by the appellant in the trial court or in the first appellate court.

¶7The suit of plaintiff appeal were dismissed with observations that it mandatory for appellant to challenge demand raised by the respondent to ask for declaration of such demand as illegal and incorrect further seek relief of perpetual injunction as prayed. Since the appellant did not USA 234/2007 Page 4 of8 challenge the Illegalityof the bill nor any such relief for declaration was sought, which was pre-requisite for grant of injunction, the suit filed simplicitor for permanent injunction was not maintainable. I find no infirmity or illegality in the impugned orders.

¶8Suffice would be to say that the appellant claimed a relief of permanent injunction for restraining the respondent or its agents, etc. from disconnecting supply against K.No. NA 002 1283990 installed at Khasra No.487/35, Village and Post Office Peera Garhi, New Delhi and also sought grant of mandatory injunction for directing the respondent and its agents, etc. to correct the impugned bill by excluding the misuse charges and paid units from levy of penalty. Thus, it is clear that the appellant challenged the legality of the bill and sought its correction by way of a mandate whereas the appellant was required to claim a relief of declaration that the impugned bill as raised by the respondent department was illegal and invalid.

¶9The trial court framed issue No.l as follows:- JtSA 234/2007 Page 5 of8 a "Whether DVB conducted illegal inspection on

22.10.1997 and raised illegal impugned bill for Rs.5,56,320.95? OPP."

¶10Formation of tliis issue also indicates that illegality of the bill challenged by appellant. Appellantdisputedthe receiptof the impugned bill before

27.10.2000. He also denied receipt of inspectionreport as well as show cause notice. He also alleged that he was not given any personal hearing before raising the impugned bill and no speaking order was passed and the impugned bill was issued against the appellant without examining the consumption pattern of the appellant and without installing any pilot meter.

¶11Under these circumstances, when the bill raised by the electricity department prima facie is illegal,the appellant was required to seek declaration to the fact that the bill was incorrect and illegal, before he could pray for injunction against the recoveries made on the basis of said bills. Clever and cunning drafting of the plaint cannot impede the court from looking at the substance of the relief asked for. Page 6of8

¶12It cannot be gainsaid that the main documents to be lool<ed at by the court is the plaint and if controversy is created from an intelligent reading thereof, the court need not go any further. But where the plaint does not disclose the facts which prima facie show the illegalityof the demand, the mere filing of the suit for injunction simplicitor cannot be used as a device to defeat or delay the liability thereby created. 'Shamsher Singh v. Rajinder Prashad & Ors., AIR 1973 SC 2384', Sarjiwan Singh Kamleshwar Kishore Singh's cases (supra) are relied upon.

¶13From perusal of the pleadings of the parties prima facie, the bill raised by the respondent is legal, therefore, appellant was required to seek relief for declaration to the fact that bill is incorrect and illegal, before he could pray for an injunction against the recovery on the basis of such bill. In fact, by way of mandate, the appellant had asked for correction of the bill without seeking relief of declaration. RSA234/2007 Page 7of8

¶14Since the question of law sought to be formulated in this case is now well settled principle of law and is no longer res Integra, no question of law is involved in this appeal.

¶15As pointed out above, the substantial questions of law as suggested in the appeal are not based on the grounds on which the suit and the appeal were dismissed but relate to some other issues which were never determined by the courts below. This court need not go into those questions of law, as suggested as they are not required to be settled in this appeal.

¶16Hence, finding no merits in the appeal, same is accordingly dismissed. OCTOBER 26, 2009 vk (ARUNA SURESH) JUDGE , Page 8 of8

% HIGH COURT OF DELHI AT NEW DELHI Date of decision : October 26, 2009 KAMAL KISHORE Appellant Through : Ms. Neha Gupta, Adv. Versus BSES RAJDHANI POWER LTD Respondent Through : Nemo. CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper nnay be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? I U D G M E N T ARUNA SURESH. I. (Oral) 1. Respondent raised a bill for Rs.5,56,320.95p on the basis of inspection carried out on 22.10.1997 of K.No.NA 1283990 installed at Khasra No.487/35, Village Post Office Peera Garhi, New Delhi, which is registered in RSA234/2007 Page 1 of8 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. the name of the appellant. The said bill was raised as the Inspectorwho inspectedthe meterfound the appellantindulging in FAE and using the load more than the sanctioned load and was involved in the theft of electricity. Another inspectionwas carried on 30.6.1999 which also indicates that appellant was found indulging into theft of electricity. 2. On 27.10.2000, appellant received a letter dated 22.10.1997 along with the copy of theft bill. Apprehending disconnection, he filed a suit for permanent and mandatory injunction against the respondentdepartment. The trial court dismissed the suit relying upon 'Sarjiwan Singh v. Delhi Vidyut Board, (2004) DLT 633', 'Kamleshwar Kishore Singh v. Paras Nath Singh & Ors., 2002 Supreme Appeals Reporter (Civil) 69. 3. The trial court observed that the relief of declaration not claimed by the appellant in the absence of the main relief, consequential relief sought for i.e. mandatory and permanent injunction Page 2 of8 not maintainable. The said