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SCA/2283/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2283 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
===================================
MADHYA
GUJARAT VIJ CO. LTD. - Petitioner
Versus
GURUKRUPA
COLD STORAGE & 4 - Respondents
===================================
Appearance
:
MS
LILU K BHAYA for Petitioner.
MR SN THAKKAR for Respondent No. 1.
RULE SERVED for Respondent Nos.2, 2.1 & 2.2 & 4.
DELETED
for Respondent Nos.3, 5.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 03/03/2010
ORAL JUDGMENT
The
petitioner Electricity Company has filed this petition under
Article 226 & 227 of the Constitution of India challenging the
order passed by the learned Joint Civil Judge (S.D.), Nadiad dated
02.12.2000 below an application Exh.99 in Special Civil Suit No.145
of 1994.
This
Court has issued rule on 08.09.2004 and interim relief was granted
whereby the impugned order of the learned Civil Judge was stayed.
It
is the case of the petitioner that the petitioner filed Special
Civil Suit No.145 of 1994 in the Court of learned Civil Judge (S.D.)
at Anand against the respondents for recovery of Rs.6,10,427.48 on
the ground that the respondents had committed theft of electrical
energy. The respondents resisted the suit of the petitioner. The
respondents with a view to prolong the matter gave application
Exh.99 in the said suit and prayed that the matter be referred to
the Appellate Committee in as much as the respondents wanted to
approach the Appellate Committee. The learned Civil Judge passed
the order dated 02.12.2000 below application Exh.99 in Special Civil
Suit No.145 of 1994 to the effect that the respondents should put up
their case before the Appellate Committee within 20 days from the
date of the said order.
It
is this order which is under challenge in the present petition.
Ms.
Lilu K. Bhaya, learned advocate appearing for the petitioner has
submitted that earlier, the respondent has filed Civil Suit No.181
of 1992 wherein order was obtained for approaching the Appellate
Committee way back on 22.05.1992. Though the appellant had paid 30%
of the bill amount, the appellant did not approach the Appellate
Committee. Despite an injunction order obtained from the trial
Court, the respondents had not approached the Appellate Committee
and when the petitioner has filed the suit, in that suit, an
application was given seeking permission to approach the Appellate
Committee which was granted. She has, therefore, submitted that the
impugned order is absolutely unjust, improper and is not tenable in
the eye of law. The respondents had made similar request in the
earlier suit and the permission granted by the Court was not acted
upon by the respondents. Hence, there is no question of granting
again permission in the pending suit filed by the respondents. She
has, therefore, submitted that the impugned order is required to be
quashed and set aside.
Though
the petition was admitted way back in 2004, no affidavit-in-reply is
filed on behalf of the respondents.
The
fact regarding the order passed by the Court in the earlier suit
granting permission to the respondents to approach the Appellate
Committee and the respondents had not approached the Appellate
Committee has not been disputed. The Trial Court is, therefore, not
justified in passing the order in the pending suit filed by the
petitioner especially when the respondent has failed to avail the
opportunity which was given to him earlier.
In
the above view of the matter, the impugned order passed by the Trial
Court is not just and proper. It cannot stand in the eye of law.
Hence, the impugned order is quashed and set aside and the petition
is accordingly allowed. Rule is made absolute without any order as
to costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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