IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 188 OF 2011 [Arising out of SLP(C) No.8210/2010]

DR.S.C. JINDAL … APPELLANT  

VERSUS

UHBVNL THRO.EXECUTIVE ENGINEER & ANR. …  RESPONDENTS  

O R D E R

The  respondents,  though  served,  has  remained  

unrepresented.  Leave  granted.  Heard  learned  counsel  for  the  

appellant.   

2. The  appellant  runs  a  hospital  at  Kaithal  and  is  a  

consumer of electricity. His premises was inspected by the SDOs  

attached to the office of Assistant Director (Vigilance) of  

UHBVNL on 4.7.2002. The checking report dated 4.7.2002 issued  

in regard to the said inspection recorded that all the M&T  

seals  were  found  tampered,  that  is,  lace  wire  was  cut  and  

reinserted into seal hole and pressed. The meter was removed,  

packed  in  a  cardboard  box,  sealed  and  delivered  to  Bhawani  

Prasad-AFM. In pursuance of it, a penalty/backbilling notice  

dated  5.7.2002  was  issued  claiming  Rs.2,72,677/-  as  penalty  

being  the  electricity  charges  assessed  for  the  period  of  

preceding six months. The appellant was required to deposit the

entire amount to avoid disconnection/to secure restoration of  

supply.  The  appellant  therefore  deposited  the  said  amount,  

under  protest  on  6.7.2002  and  filed  an  appeal  before  the  

Superintending Engineer against the demand notice. No action  

was taken on the said appeal.  

3. In  this  background,  the  appellant  filed  a  suit  on  

19.9.2002 seeking a declaration that the demand notice dated  

5.7.2002  was  null  and  void  and  for  refund  of  the  sum  of  

Rs.2,72,677/- deposited by him. The suit was contested by the  

respondents. The appellant had examined himself as PW.2 and had  

examined a clerk of UHBVNL (first defendant) as PW.1 and marked  

Ex.P.1 to P.25. The respondents examined the two inspecting  

officers as DW.1 and DW.2 and relied upon the checking report  

(Ex.D.1) and the demand notice (Ex.D.2). The suit was dismissed  

by judgment and decree dated 17.7.2006. The appeal filed by the  

appellant was allowed by the Additional District Judge, Kaithal  

by judgment and decree dated 11.4.2007. After considering the  

evidence  in  detail,  the  first  appellate  Court  recorded  the  

following findings of fact:

(a) That  the  appellant's  premises  and  installation  was  

checked by the officers of defendants on 19.2.2002 and all the  

M&T seals were found to be in tact and the meter was also found  

to be in working condition. Therefore the assumption that there  

2

was theft of electricity for six months preceding the date of  

inspection (4.7.2002) was not correct.

(b) There was nothing to show that subsequent to 19.2.2002,  

the  appellant  had  tampered  with  the  meter  or  committed  any  

theft of electrical energy.

(c) On 4.7.2002, there was an inspection and M&T seals were  

found  to  have  been  tampered.  The  meter  was  dismantled  and  

removed,  but  was  not  tested  in  any  laboratory  to  show  its  

functioning was tempered.

(d) DW.1  admitted  that  he  was  not  in  a  position  to  say  

whether the meter was slow when it was checked on 4.7.2002. The  

finding that M&T seals were tampered was not proof of tampering  

of functioning of the meter. There was no averment or proof  

that the functioning of the meter was tampered. The earlier  

checking  on  19.2.2002  was  carried  out  on  a  complaint  dated  

18.2.2002  by  appellant,  about  the  wrong  recording  of  

consumption by the Meter Reader resulting in Rs.6616/- being  

found to be refundable. As a consequence, the Meter Reader was  

transferred. The Meter Reader developed a grudge against the  

appellant and the employees of the respondents were inimical  

towards the appellant; and that in order to settle scores, the  

M&T seals were tampered and thereafter the matter reported to  

the Vigilance so that there can be inspection and harassment to  

3

the  appellant.  The  entire  episode  was  intended  to  teach  a  

lesson  to  appellant,  because  he  dared  to  give  a  complaint  

against Meter Reader.  

(e) Both the defence witnesses admitted that before issuing  

the demand notice, the consumption for the previous months was  

not  checked  and  there  was  no  calculation  sheet  showing  how  

Rs.2,72,677/- was arrived at.

On these and other findings, the appellate Court held that the  

demand for Rs.2,72,677/- was not legal or justified and set  

aside the imposition.

4. Feeling aggrieved, the respondent filed a second appeal  

and a learned single Judge of the High Court, by the impugned  

judgment dated 4.11.2009, reversed the decision of the first  

appellate Court and restored the dismissal of the suit by the  

trial Court. The said judgment is challenged in this appeal by  

special leave.

5. The  High  Court  noticed  in  its  judgment,  that  the  

decision of the first appellate court was based on findings of  

fact recorded in favour of the appellant and that the case did  

not involve any question of law. The High Court also noticed  

that  in  a  second  appeal,  findings  of  fact  are  not  to  be  

interfered, unless the findings of fact by the first appellate  

4

court were perverse or were recorded in the absence of any  

evidence. The High Court was of the view that there was no  

material to show that DW.1 Manoj Kumar Garg and DW.2 Rajpal had  

made any false statements about the checking of the electrical  

connection on 4.7.2002 and about the tampering of M&T seals;  

and as they were responsible officers, their evidence ought not  

to have been disbelieved by the first appellate Court.

6. But High Court failed to notice that the evidence of  

DW.1 and DW.2 about the inspection on 4.7.2002 and finding of  

tampering  of  M&T  seals  were  not  denied  or  disputed  by  the  

appellant nor disbelieved by the first appellate court. The  

first appellate on consideration of evidence had concluded that  

appellant had not tampered with the M&T seals or the meter,  

that someone else in the defendants’ department, to teach a  

lesson to appellant, as he dared to complain against the Meter  

Reader, had deliberately tampered with only the M&T seals and  

then given a complaint to the Vigilance so that the tampering  

could inspect the installation and attribute the tampering to  

the appellant. The first appellate court, which is the final  

court  of  fact  had  analysed  the  evidence  in  detail  and  

thereafter recorded the aforesaid findings of fact on the basis  

of which it decreed the suit. It is therefore not a case where  

the  first  appellate  Court  had  ignored  any  evidence  or  

misconstrued any document or acted perversely. It had only held  

that the tampering was not done by the appellant, but in all  

5

probability  done  by  the  meter  reader  or  someone  from  the  

defendants’ department to settle scores with the appellant.

7. We are of the view that having regard to the evidence  

and findings of fact recorded by the appellate court, there was  

no  justification  for  the  High  Court  to  interfere  with  the  

findings  of  fact  recorded  by  the  first  appellate  Court,  in  

exercise of jurisdiction under Section 100 of Code of Civil  

Procedure. We, accordingly, allow this appeal, set aside the  

order of the High Court and restore the judgment and decree of  

the first appellate Court decreeing the Suit.

  .....................J.                ( R.V. RAVEENDRAN )

New Delhi;       .....................J. January 07, 2011.                   ( A.K. PATNAIK )

6