ORDER 41 RULE 33 - No relief when party failed to seek, particular relief; more so, when time barred & right accrued to opposite party.
No one can doubt the power of the appellate Court to give the appropriate reliefs to the parties under Order 41 Rule 33 CPC. But when the party itself has failed to seek the particular relief, the appellate Court will not be justified in granting that very relief under Order 41 Rule 33 CPC, more so, when the relief had become time barred and a right had accrued to the defendants.
The Court would have been justified in granting mandatory injunction for the restoration of electric supply, if they had given a finding that the demand made by the Board is invalid or if they had held that the defendants had no right to recover the alleged dues. As the Courts below have not come to the conclusion that the defendants have no right to recover the alleged dues, they were not justified in issuing mandatory injunction and decreeing the suit of the respondents.
JUDGMENT Mirdhe, J.
1. This Regular Second Appeal is filed by the appellants who were the defendants in the trial Court, under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 15.12.1980 passed by the Civil Judge and J.M.F.C. Ramanagaram confirming the Judgment & Decree dated 26.8.78 passed by the Munsiff, Bamanagaram, in O.S.No. 84/77.
2. The respondent has also filed I.A. under Order VI Rule 17 of the Code of Civil Procedure seeking certain amendments in this Appeal.
3. I have heard both the learned Counsel for the appellants and the learned Counsel for the respondent, both on the I.A. and the Appeal and fully perused the records of the case.
4. The respondent filed a suit against the appellants for mandatory injunction directing them to restore electric power supply to meter bearing No.RR.P. 108 installed in the plaintiff's factory and for permanent injunction restraining the defendants from recovering the alleged levy imposed against the plaintiff till an enquiry is held and proper accounts are arrived at after enquiry according to law with costs. The trial Court decreed the suit in part granting mandatory injunction in favour of the respondent directing the appellants to continue the supply of electric energy to the said meter, until final decision is arrived at in the criminal case. But, so far as the relief of permanent injunction is concerned, it was not granted by the trial Court. The appellants were aggrieved by this Judgment and, therefore, they preferred Regular Appeal No. 9/1979 in the Court of the Civil Judge and J.M.F.C., Ramanagaram and that appeal came to be heard by the Civil Judge and J.M.F.C., Ramanagaram and he dismissed the appeal confirming the Judgment & Decree of the trial Court.
5. The appellants who have been aggrieved by the Judgments and Decrees of both the Courts below have preferred this Regular Second Appeal, The question of law that is raised in this case is as follows:
"Whether the Courts below having held Issue No. 1 against the plaintiff, were justified in granting a mandatory injunction for restoration of the supply of electricity, and whether plaintiff, not having sought the relief of declaration as to the invalidity of the demand made by the Board, was entitled to the mandatory injunction?"
6. The respondent has filed I.A.II for the amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, seeking to effect amendment in the plaint by adding the words in prayer column to the following effect:
"declaring the demand made by the defendants claiming a sum of Rs. 18,832-14 through their letter No. 5477 dated 21.1.1977 as illegal and invalid and not binding on plaintiff".
And to delete the words:
"till an enquiry is held and proper accounts are arrived at after an enquiry according to law"
in Clause (ii) of the prayer column. The appellants have filed their counter and opposed the granting of this I.A. It has been contended by the learned Counsel for the respondent that the amendment can be allowed at any time and the Court should not reject the prayer for amendment on technical grounds. He relied on JAI JAI RAM MANOHAR LAL v. NATIONAL BUILDING MATERIAL SUPPLY, GURGAON, , wherein it has been held that the amendment of plaint should not be refused on technical grounds. Their Lordships of the Supreme Court have held that the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. It is well settled principle of law that amendment can be allowed by a Court at any stage including the highest appellate stage, provided the amendment is necessary for the proper and effective adjudication of the controversy between the parties and it does not cause any prejudice to the other side, so as to take away any valuable right that might have accrued to that party before the proposed amendment. In this case, the amendment sought is to get declaration that demand made by the defendant is illegal and invalid and not binding on the plaintiff. The demand has been made by the appellants on 21.1.1977 and this amendment application is filed on 2.3.1993. Since it is a demand made in respect of the electricity supply to the respondent, it will be a goods sold and supplied to the respondent. Therefore, Article 15 of the Limitation Act would be attracted to this case and the period of limitation is 3 years when, the period of credit expires, Obviously, the amendment sought now, is beyond the period of 3 years and this relief will be barred by limitation. In BANHATTI CO-OPERATIVE SPINNING MILL LTD. v. KARNATAKA ELECTRICITY BOARD, , it has been held that the suit for recovery of charges for supply of electricity will be covered by Article 15. So it is clear that under Article 15 of the Limitation Act, this remedy will not be available to the respondent on the date i.e. 2.3.93 when he filed I.A.I & the right has accrued to the appellants by passage of time. The learned Counsel for the respondent submitted even after the appellants were to recover the dues under the demand notice in question, this claim will be barred by limitation and it will not be permissible for it to recover the said dues from the respondent. To this argument, the answer is to be found in the Ruling quoted above, wherein it has been held:
"A claim may be barred by time but nevertheless it does not disappear nor it is extinguished. In the event the claim is barred by time, all that happens is that such a claim cannot be enforced in a Court of Law by way of a suit or other proceeding to which the Limitation Act applies. The expiry of the period of limitation prescribed for a suit to recover the amount due, does not destroy the right to that amount. It only bars the remedy. It is only in the case of recovery of possession of any property on determination of the period of limitation prescribed by the Limitation Act, not only the remedy is lost but the right is also extinguished. But it is relevant to notice that there is a distinction between actions for recovery of debts and those for recovery of possession of property. In all personal actions the right subsists although the remedy is no longer available. It is on this principle, a creditor whose debt becomes barred by time by reason of expiry of the period of limitation can even realise the debt by any other method other than by way of a suit. The Limitation Act does not prevent a creditor from recovering lawful debt due to him by any other mode available other than a suit.
Therefore, even if it is supposed that the KEB is not entitled to recover the amount through a suit, filed in a Court of Law, the right to recover it otherwise than by way of a suit is neither extinguished nor in any way it is affected by the provisions of the Limitation Act. The very liability of the consumer to pay the amount is not extinguished".
Therefore, the argument of the learned Counsel for the respondent that the remedy of the appellants to recover the dues has become time barred and therefore, the Court may be. pleased to allow the prayer of the respondent in 1 All for amendment of the plaint cannot be accepted.
7. The learned Counsel for the appellants submitted that merely on the ground of limitation the prayer for amendment cannot be rejected. He relied on M.R.K. RAU AND ORS. v. CORPORATION OF THE CITY OF BANGALORE, , wherein this Court has held that it is open to the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. In my opinion, that Ruling is distinguishable from the facts of this case. That case was a case for perpetual injunction and at the appellate stage the plaintiff sought to include the claim for damages by way of amendment. In that context, Their Lordships of our High Court have held that the claim for damages is inherent in the very prayer for perpetual injunction and therefore, on that ground, Their Lordships held that it was not barred by time. The reason for Their Lordships to allow the amendment application in that case was that the claim for damages was not barred by time, as it was inherent in the very relief of permanent injunction prayed for by the plaintiff. But, in this case the relief of declaration that is now sought to be introduced by way of amendment by I.A.II cannot be said to be inherent in the very relief for perpetual injunction that was sought for by the plaintiff in his plaint. In view of the fact that the plaintiff's/respondent's remedy to seek declaration has become time barred on the date of I.A.II and a valuable right has accrued to the appellants, I am of the opinion, that it will not be permissible to allow I.A.II and I.A.II deserves to be rejected.
8. In order to decide the question of law raised in this case, it is necessary to see the case of the respondent as set up by him in his plaint and the prayer made by him in his plaint. It is the case of the respondent that the plaintiff firm is an industry and the factory was working well till the end of 1974. There was labour unrest during the period between December 1974 and April 1976 and practically the work in the factory came to a stand still. When the plaintiff's firm was recovering from the after effects of the labour unrest, the officers of the vigilance squad of the K.E.B. visited the factory on 12.11.76 and checked the meter R.R.No. 108 and without giving any opportunity to the plaintiff to explain their case, the officers of the 3rd defendant came with police and disconnected the power connection from 13.10.76 by removing the said meter. As a result of this action of the 3rd defendant, the plaintiff firm is without the benefit of power connection from 13.10.76 and this has caused heavy loss and further labour unrest in the firm. It is also the case of the plaintiff that the 3rd defendant issued a notice to the effect that there has been tampering of the meter in question and theft of electrical energy and demanded a sum of Rs. 39,684.05 towards back billing and on an appeal by the respondent, the said amount came to be reduced to Rs. 18,832.14 Ps. As the respondent did not heed to his request not to disconnect the electricity supply to the factory, and disconnected the same, the plaintiff filed the suit.
9. The defendant filed their written statement taking up various contention?. One of the contention taken by the defendants is whenever the party disputes the claim, he can deposit the amount claimed under protest and seek restoration of power under the regulations and the respondent has not done so. The defendants amongst other contentions prayed for the dismissal of the suit.
10. The trial Court framed the following 3 issues:
1. Whether plaintiff proves that the defendants have no right to recover the alleged levy until enquiry is held and proper accounts arrived at?
2. Whether plaintiff is entitled for restoration of electric power supply to meter bearing R.R.No. 108?
3. Whether plaintiff is entitled for permanent injunction and mandatory injunction?
Issue No. 1 has been answered against the respondent and in favour of the appellants by the trial Court and this finding is also confirmed; by the lower appellate Court. So the position is, issue No. 1 is decided against the respondent holding that plaintiff has failed to prove that the defendants have no right to recover the alleged levy until enquiry is held and proper accounts arrived at. Secondly, the respondent has not sought for the declaration that the demand made by the Board is invalid or illegal. The learned Counsel for the respondent submitted that under Order 41 Rule 33 of C.P.C. the Court has got a right to grant relief to all the parties including the parties who may not have appealed and against whom some points have been decided. He relied upon PANNA LAL v. STATE OF BOMBAY AND ORS., , wherein it has been held by the Supreme Court that:
"The wide wording of Order 41 Rule 33 was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require". If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument.
If a party who could have filed a cross-objection under Order 41 Rule 22 has not done so it cannot be said that the Appeal Court can under no circumstances give him relief under the provisions of Order 41 Rule 33".
No one can doubt the power of the appellate Court to give the appropriate reliefs to the parties under Order 41 Rule 33 CPC. which is interpreted and explained in the Ruling of the Supreme Court quoted above. But when the party itself has failed to seek the particular relief, the appellate Court will not be justified in granting that very relief under Order 41 Rule 33 CPC., more so, when the relief had become time barred and a right had accrued to the defendants. Therefore, this argument of the learned Counsel for the respondent that though the respondents have not appealed and challenged the validity of the finding of both the Courts below on issue No. 1, still the Court should set it aside under its power under Order 41, Rule 33 CPC. because if the Court would do so, the Court would be practically granting a relief when the party itself has not prayed for that relief and that relief had become time barred and a right had accrued to the defendants.
11. The very basis of mandatory injunction prayed for by the respondent is that the defendants have no right to recover the levy claimed by it under its demand notice. Unless that demand bill is declared to be invalid, both the Courts below could not have granted mandatory injunction directing the appellants to restore the electricity supply because on the one hand both the Courts below have held that the defendant has got a right to recover the alleged levy and on the other hand, they have directed the appellants to restore the electricity supply by issuing a mandatory injunction against it. In my opinion, the very basis for granting the mandatory injunction would be invalid and the demand made by the Board for which no declaration is sought by the respondent and the relief to seek such a declaration has also become time barred and the finding of both the Courts below is that the plaintiff has failed to prove that the defendants have no right to recover the levy.
12. The learned Counsel for the respondent further submitted that the Court can grant mandatory injunction even if issue No. 1 is held against the respondent. He relied on CORPORATION OF THE CITY OF BANGALORE v. M. PAPAIAH AND ANR., , in which it has been held that:
"A suit was filed for a decree of perpetual injunction restraining the defendant Corporation from interfering with possession of plaintiff over land in dispute. The case of Corporation was that disputed area was acquired for using it as burial ground under Govt. Order and compensation was paid to plaintiff out of Municipal funds and land was in possession of defendant since then. The plaintiff's case was that the alleged G.O. was cancelled and land was settled under another G.O. with persons who subsequently sold it to plaintiff. The plaintiff also got his name entered in revenue records. The suit was decreed by trial Court but the decision was reversed in first appeal. The plaintiff's second appeal was allowed by High Court and the decree of trial Court was restored.
Held, that foundation of claim of plaintiff was title which was pleaded in earlier part of plaint and for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion. The plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the Corporation".
He also relied on SMT. GIRAJAWWA AND ORS. v. SMT. BASAWWA, wherein it has been held as follows:
"Where the plaintiff who was in possession of the suit schedule property was unlawfully dispossessed by the act of the defendants and the defendants demolished the wall and interfered with her peaceful possession and the plaintiff had proved her title as well as her dispossession, the suit filed by the plaintiff for possession of the suit house and also for mandatory injunction to construct the wall damaged by the defendants would be maintainable under Section 6 and question of seeking declaration of title would not arise in such a suit".
Both these Rulings are in respect of immoveable properties, whereas the electricity will be considered as goods. In quoted above the plaintiff had proved her title as well as her dispossession. In that context His Lordship of this Court held that the question of seeking declaration of title in such a suit does not arise. In quoted above, the claim was in respect of immoveable property wherein the plaint does not leave any manner of doubt that the suit was filed for establishing the title of the plaintiffs. But in the present case, no declaration is sought regarding the validity of the demand made by the appellants and it is also not possible to hold that the averments in the plaint are sufficient that the respondent has made out any such case so as to seek the finding on the invalidity of the demand made by the appellants. Moreover, under Regulation 41(e)(1) of the Electricity Supply Regulations (for short 'the Act') any consumer aggrieved against an order of assessment made by the Local Officer, will have to pay the amount demanded and then may appeal to the Superintending Engineer, within a fortnight of communication of the order. The learned Counsel for the appellants relied on an unreported Judgment of this Court in Regular First Appeal No. 133 of 1981 decided on 16th day of July, 1982, by Hon'ble Mr. Justice K.A. Swami between PIONEER ENGINEERING CO. AND K.E.B., wherein it has been held that a suit by a person is not maintainable in the absence of compliance of Section 5 of the Karnataka Electricity Board (Recovery of Dues) Act, 1976, Karnataka Act No. 51 of 76. Section 5 of that Act reads as follows:
"Suit to challenge liability to payment - Where a notice of demand has been served on, the debtor or his authorised agent under Section 4, he may, if he denies his liability to pay the dues, penalty or costs or any part of any of them, institute a suit within six months from the date of service of notice of demand, after depositing with the prescribed authority the aggregate amount specified in the notice of demand, under protest in writing that he is not liable to pay the same. Subject to the result of such suit, the notice of demand shall be conclusive proof of the various dues, penalty and costs mentioned therein".
A perusal of Regulation 41 (e) of the Act and Section 5 of the Karnataka Electricity Board (Recovery of Dues) Act, 1976, makes it clear that without depositing the amount demanded by the Electricity Board, a person cannot file either an appeal as provided under the Regulation or even file a suit. In view of this peculiar position of law regarding supply of electricity, the Rulings of the Supreme Court and this Court which are given in respect of immoveable property are distinguishable.
13. The Court would have been justified in granting mandatory injunction for the restoration of electricity supply, if they had given a finding that the demand made by the Board is invalid or if they had held that the defendants had no right to recover the alleged dues. As the Courts below have not come to the conclusion that the defendants have no right to recover the alleged dues, they were not justified in issuing mandatory injunction and decreeing the suit of the respondents. The question of law raised in this case is answered accordingly.
14. For the reasons discussed above, I proceed to pass the following:
ORDER The Appeal is allowed. The Judgments and Decrees of both the Courts below are set aside and the suit of the respondent is dismissed with costs throughout.