Joginder Singh Lakra v. BSES Rajdhani Power Ltd.

Delhi High Court · 01 Mar 2023 · 2023:DHC:1772

Jyoti Singh

C.R.P. 51/2023

2023:DHC:1772

civil appeal_dismissed Significant

AI Summary

The Delhi High Court upheld the trial court's dismissal of the petitioner's application for judgment on admissions under Order 12 Rule 6 CPC, holding that the respondent's denials were categorical and the disputed issues required trial.

Full Text

Neutral Citation Number: 2023/DHC/001772

C.R.P.51/2023
HIGH COURT OF DELHI
Date of Decision: 01st March, 2023

C.R.P. 51/2023
MR. JOGINDER SINGH LAKRA ..... Petitioner
Through: Mr. Prateek Chaudhary, Mr. Ravinder Kumar, Mr. Manjesh Giri and
Mr. Kunal Dabas, Advocates.

VERSUS

BSES RAJDHANI POWER LTD. ..... Respondent
Through: Mr. Sharique Hussain, Advocate.

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

JUDGMENT

JYOTI SINGH, J.

(ORAL)

C.M. APPL. 9946/2023 (exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. C.R.P. 51/2023 & C.M. APPL. 9945/2023 (stay)

3. Present revision petition has been filed by the Petitioner assailing an order dated 22.11.2022 passed by the Trial Court in CS SCJ No. 1480/2018, dismissing the application filed by the Petitioner under Order 12 Rule 6 read with Section 151 CPC. Petitioner herein was the Plaintiff before the Trial Court and the Respondent was the Defendant and parties are hereinafter referred to by their litigating status before the Trial Court.

4. Plaintiffclaimsto be a resident of premises known as ‘Ganga Bhawan’, within old Lal Dora of Village Mundka, Delhi-110041 which,according tohim,comprises of two plots bearing Nos. 37A and

40. While 37A is claimed to be falling in the share of the Plaintiff, Plot No. 40 is owned by his younger brother.

5. Plaintiff filed a suit for declaration and permanent and mandatory injunction against the Defendant/BSES Rajdhani Power Limitedchallengingthe impugned Speaking Order dated 07.08.2018 passed by the Defendant in respect of Plot No. 40. It is the case of the Plaintiffthat he lives in Plot No. 37A, while the electricity meter is in the name of his brother Shri Dalel Singh under CA No. 102659992. Plaintiffalso uses Plot No. 40 but as a garden and baithakand the plot has four rooms and a small bathroom constructed on it. Theelectricity bill for Plot No. 40 is raised under CA No. 102694688, which was earlier burnt but was replaced on Plaintiff’s request. It is stated that due to installation of an Air Conditioner,there was a spike in the load and the meter had burnt, however, thereafter the sanctioned load was increased by the Defendant from 1 KW to 3 KW. It is statedthat in the rooms, etc.in Plot No. 40, there are minimal fans and tube lights, etc. and there is no significant usage of electricityand even otherwise, the consumption is primarily for domestic purposes.

6. The prime grievance raised by the Plaintiff in the suit is that the impugned Speaking Order, whereby the Defendant has raised a bill dated 09.08.2018 for a sum of Rs. 51,018.86/- is against all tenets of law, as no actual inspection was carried out by the Defendant in Plot No. 40 and the inspection, if any, was on Plot No. 37A, whose electricity bills are raised against CA No. 102659992. Meter Testing Report for the old burnt meterin Plot No. 40 reflects that the plastic seals were intact and only hologram seals were missing and the Inspection Report did not allege any tampering. The impugned Speaking Order dated 07.08.2018 refers to average consumption for the period 05.06.2017 to 02.06.2018 as 25.82% and which is with respect to Plot No. 37A and comparesit without any basis in an ad hoc manner with Plot No. 40.

7. Upon service of the summons in the suit, Defendant filed a written statement. By an order dated 20.08.2019, the Trial Court disposed of an application filed by the Plaintiff under Order XXXIX Rules 1 and 2 CPC and stayed the operation of the Speaking Order dated 07.08.2018 and restrained the Defendant from executing/ enforcing bill of demand for Rs. 51,018.86/-.

8. Thereafter,Plaintiff filed an application under Order 12 Rule 6 CPC on 10.10.2019, to which a reply was filed by the Defendant. By the impugned order, the learned Trial Court has dismissed the application on the ground that the written statement filed by the Defendant does not contain admissions of the averments made by the Plaintiffin the plaint and the issues raised by the Plaintiff are triable and thus, the suit cannot be decreed on alleged admissions by the Defendant.

9. From a perusal of the application under Order 12 Rule 6 CPC filed by the Plaintiff, it emerges that the case of the Plaintiff is that the Speaking order dated 07.08.2018 is unsustainable, since it draws strengthfrom the Inspection Report which pertains to Plot No. 37A for CA No. 102659992, while the burnt meter pertains to CA No. 102694688 with respect to Plot No. 40 and therefore, the entire basis of the Speaking Order is flawed. It is also averred in the application that merely because a meter is burnt, it cannot lead to a conclusion of theft of electricity against the Plaintiff.In a nutshell, the case of the Plaintiff in theapplication is that various averments in the plaint point out to the illegal action of the Defendant,but thereis not a word in the written statement where the said averments are denied, more particularly,the averment that no inspection was carried out in Plot No. 40.

10. Learned counsel for the Plaintiff assailing the impugned order submitsthat the Plaintiff has set out in the plaint that no inspection was carried out in Plot No. 40 and that while the inspection was done in Plot No. 37A, the historical electricity consumption pattern was merely used for Plot No. 40, in raising an illegal demand. Once all these averments are untraversed,the Trial Court ought to havedecreed the suit.

11. It is contended that theTrial Court failed to appreciate that this Court is Delhi Jal Board v. Surendra P. Malik, (2003) 104 DLT 151 (DB) has held that the only pre-requisite for passing a decree under Order 12 Rule 6 CPC is that there must be admission of fact arising in the suit,be that in pleadingsor otherwise andorally or in writing and even if the admissions are not clear or unequivocal, an evasive denial would amount to constructive admission. Plaintiff had placed on record photographs showcasing that it is Plot No. 37A, which is largely built up,while Plot No. 40 is mostly vacant and even this fact has been overlooked by the Trial Court.

12. Learned counsel for the Defendant, per contra submits that a detailed written statement hasbeen filed by the Defendant wherein it is brought out that the demand raised by the Defendant for a sum of Rs. 51,018.86/- is justified and there is no infirmity in the Speaking Order. It is statedthat an inspection was carried out by the staff of the Defendant,wherein it was noticed that the concerned meterwas found abnormally burnt,apart from otherissues such as hologram seals were missingand meter LCD was not as per the requirements, etc. In the written statement,the Defendanthas not onlygiven the details of the inspection and the findings of the Inspection Report, but it is categoricallystated that the inspection was carried out at Plot No. 40. It is, therefore,not open for the Plaintiff to urge that there is evasive denial of the allegations levelledin the plaint and the Trial Court has rightly dismissed the application under Order 12 Rule 6 CPC.

13. Having heard the learnedcounsels for the parties, this Court is of the view that no infirmity can be found in the impugned order, for the reasons that follow.

14. Before embarking on the road to examine the respective contentions,it wouldbe useful and relevant to refer to first principles required to be followed by the Courts for deciding an application under Order 12 Rule 6 CPC as affirmed and reaffirmed in several judgments.In order to avoid burdening this judgment, I may only refer to a few judgments on this aspect. The Supreme Court in Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496, held as follows:

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“23. Order 12 Rule 6 confers discretionary power to a court who “may” at any stage of the suit or suits on the application of any party or in its own motion and without waiting for determination of any other question between the parties makes such order or gives such judgment as it may think fit having regard to such admission. 24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an

order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial. xxx xxx xxx

26. On the issue of discretion of Court to pass judgment on admission, a three-Judge Bench of this Court in S.M. Asif v. Virender Kumar Bajaj [S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287: (2015) 4 SCC (Civ) 589] made the legislative intent clear to use the word “may” which clearly stipulates that the power under Order 12 Rule 6CPC is discretionary and cannot be claimed as a matter of right. In the said case, the suit for eviction was filed by the respondent landlord against the appellant tenant.The relationship of tenancy was admitted including the period of lease agreement. The plaintiffs' claim was resisted by the defendant setting up a plea that the property in question was agreed to be sold by an agreement and the advance of Rs 82,50,000 was paid.”

15. In this regard, I may refer to another judgment of the Supreme Court in Hari Steel and General Industries Limited and Another v. Daljit Singh and Others, (2019) 20 SCC 425, relevant paras of which are as under:-

“25. In the judgment in Himani Alloys Ltd. v. Tata Steel Ltd. [Himani Alloys Ltd. v. Tata Steel Ltd., (2011) 15 SCC 273: (2014) 2 SCC (Civ) 376], nature and scope of Order 12 Rule 6 has been considered by this Court. In the aforesaid judgment this Court has held that the discretion conferred under Order 12 Rule 6 CPC is to be exercised judiciously, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant. Para 11 of the judgment read as under: (SCC pp. 276-77) “11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. (See also Uttam

Singh Duggal & Co. Ltd. v. United Bank of India [Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120], Karam Kapahi v. Lal Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753: (2010) 2 SCC (Civ) 262] and Jeevan Diesels & Electricals Ltd. v. Jasbir Singh Chadha [Jeevan Diesels & Electricals Ltd. v. Jasbir Singh Chadha, (2010) 6 SCC 601: (2010) 2 SCC (Civ) 745].) There is no such admission in this case.”

26. In the judgment in S.M. Asif v. Virender Kumar Bajaj [S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287: (2015) 4 SCC (Civ) 589], this Court has held that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a right. It is further held in the aforesaid case that where the defendants have raised objections, which go to the root of the case, it would not be appropriate to exercise discretion underOrder 12 Rule 6 CPC. Para 8 of the judgment read as under: (SCC p. 291)

“8. The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.”

27. In the judgment in Balraj Taneja v. Sunil Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396], while considering the scope of Order 8 Rule 10 and Order 12 Rule 6 CPC, this Court has held that the court is not to act blindly upon the admission of a fact made by the defendant in the written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court.

28. In the aforesaid judgment, while considering the scope of Order 12 Rule 6 CPC, post amendment by amending Act, 1976 this Court has held as under: (Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396], SCC p. 408, paras 21-23)

“21. There is yet another provision under which it is possible for the court to pronounce judgment on admission. This is contained in Rule 6 of Order 12 which provides as under: ‘6. Judgment on admissions.—(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its

own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.’

22. This rule was substituted in place of the old rule by the Code of Civil Procedure (Amendment) Act, 1976. The Objects and Reasons for this amendment are given below: ‘Under Rule 6, where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to cover oral admissions. The rule is being amended to clarify that oral admissions are also covered by the rule.’

23. Under this rule, the court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit.

29. By applying the ratio laid down by this Court in the aforesaid judgments, it is to be held that there are no categorical and unconditional admissions, as claimed by the respondent-plaintiffs. In view of the stand of the appellants that, pp.[3] and 4 of the agreement dated 3-5-2005 are tampered and their signatures are fabricated, when specific issue is already framed, it cannot be said that there are categorical and unconditional admissions by the appellants. Mere admission of entering into arrangement/ contract on 7-4-2005 and 3-5-2005 itself cannot be considered in isolation, without considering the further objections of the appellants that certain pages in the agreement are fabricated. In case the appellants prove that the agreement is fabricated as claimed, post-trial it goes to the root of the case on the claim of the respondent-plaintiffs. Hence, we are of the view that the aforesaid judgments fully support the case of the appellants.”

16. A Division Bench of this Court in Vijay Myne vs. Satya Bhushan Kaura, (2007) 142 DLT 483 (DB), held as follows:- “12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncent as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6, CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.”

17. It will be useful to refer to a judgment of this Court in Delhi Jal Board (supra), wherein the following tests were formulated for deciding an application under Order 12 Rule 6 CPC:-

“9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defence set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.”

18. Broadly understood the case of the Plaintiff is that while passing the Speaking Order 07.08.2018, Defendant has premised its case on an inspection carried out by its Inspection Team. However,the fallacy in the Speaking Order is that theinspection was never carried out in Plot No. 40, in respect of which the demand has been raised and this vitiates the SpeakingOrder. Plaintiff hasrepeatedly assertedin the plaint this fact and hasalso highlighted several other anomalies and discrepancies in the Speaking Order and the Inspection Report on which it is premised. TheDefendant,on the other hand, has taken no trouble to traverseor controvert the averments in the plaint and the written statement is replete with vague and evasive denials and following the law laid down by the Courts for decidingan application under Order 12 Rule 6 CPC that evasive denial would amount to admission,the Trial Court erred in dismissing Plaintiff’s application.

19. I have given thoughtful consideration to the plea raised and also perused the plaint along with the written statement. Plain reading of the written statement shows that the case of the Plaintiff is far from truth. A very detailed written statement had been filed by the Defendant not only denying the averments in the plaint para-wise but extensive submissions havebeen made underthe heading ‘Preliminary Objections’ and‘Preliminary Submission’.Relevant it would to quote a few paras from the written statement, merely as an illustration, as under: “PRELIMINARY OBJECTIONS:

IV. The Plaintiff has alleged that he never indulged in any theft of electricity & the theft bill issued by the Defendant is illegal & unlawful. The above-mentioned contentions are frivolous and far from truth. The Defendant humbly submits that when the officials of MMG Department of the Defendant visited the premise of the Plaintiff on dated 21.06.2018 the meter in question (meter NO. 24312625) was found as meter terminal blocked and found abnormally burnt. Accordingly, suspecting the commission of DAE the officials of Defendant seized the meter in the Bag with Bag Seal No. 152463 and seal no. AA79410. The said meter was then sent to the NABL accredited Lab for further analysis, under the intimation to the consumer, vide intimation letter dated 21.06.2018, that he can witness the testing of the meter in the laboratory on 03.07.2018. The meter was tested in the laboratory & Lab vide its report no. BCS/EM/TPI/18/716 dated 17.07.2018. As per lab report, hologram seals not available, Meter terminal block found abnormally burnt, Meter LCD was found not OK, and Meter data could not be downloaded. In conclusion, the laboratory declared that meter found abnormally burnt. Consumption records for the period 05.06.2017 to 02.06.2018 shows an average recorded consumption of 88 units per month, which has been found to be only 25.82% of the assessed consumption.Meter was found abnormally burnt & consumption has remained low hence it is evident that the meter was intentionally burnt to destroy evidence of meter tampering. Thus, clear evidence of theft of electricity has been detected. It is the responsibility of the consumer to keep the meter in safe custody. Consumer has been beneficiary of the tampered meter. In view thereof, the averments of the Plaintiff that he never indulged in tampering the meter & allegation of the same against the Plaintiff by the Defendant is unlawful are untenable and merits outright rejection. Further it is specifically denied that the theft bill raised against the Plaintiff is illegal & unlawful. After considering the submissions of the Plaintiff and all the material aspects like Lab Report, Inspection Report, Meter detail report, Load Report, Compact Disc etc the Assessing Officer of the Defendant Company Shri Sudhanshu Dwivedi passed an Speaking order dated 07.08.2018. Hence it is clear/re-iterated that there has been no illegality committed on part of the Defendant in raising the bill as the same was prepared on the basis of the Speaking Order dated 07.08.2018 and findings of the Lab Report dated 17.07.2018 and further more the Bill for DAE was prepared by following all the guidelines laid down by DERC, 2017 i.e. as per the billing advice submitted to the DFO Enforcement.The said Theft Assessment bill raised by the DFO Enforcement is in order having been raised as per the provisions of Tariff and Supply Code and the Plaintiff is liable to make the payment of the afore-said Theft of Electricity (Meter Tampering) bill. It is further submitted the inspection carried out at the premises, meter testing at the lab, passing of the speaking orderand subsequent Impugned Bill are as per the process established by the DERC and the Act. In view of the same, the said bill cannot be declared as null and void and on the contrary the present suit deserves to dismiss at the threshold. Further the Assessment Bill for DAE has been raised against Plaintiff i.e. Shri Jaginder Singh for which the Defendant in process for initiating the criminal proceeding as per the provisions of law against the Plaintiff i.e. Shri Jaginder Singh. In view thereof, the present suit is baseless and frivolous and is liable to be dismissed with cost.

PRELIMINARY SUBMISSION:

4. That on 21.06.2018 the officers of the MMG Dept. of the Defendant Company visited the premises of the Plaintiff at H. No. P. No.-40, Village- Mundka, Near Pole No- MDK K079 New Delhi, and found that the Electronic meter bearing no. 24312625 was burnt. The Officers of the MMG Dept. changed the burnt meter with the new electronic meter bearing No. 40793354 on 07.08.2018. As sight evidence suggested the possibility of dishonest abstraction of electricity/energy ("DAE'') hence the meter no.24312625 was seized in the Bag with Bag No. 152463 and seal no. AA79410. The said meter was then sent to the Laboratory, for through analysis under the intimation to the representative of consumer, vide intimation letter dated 21.06.2018, that he can witness the testing of the meter in the laboratory on 03.07.2018.The representative of the consumer was further intimated that in the event of his failure to attend the Meter Testing in the laboratory the Meter shall be de-sealed and tested in his absence.

5. That neither the Plaintiff nor his representative appeared for witnessing the meter testing, hence Shri Kunal Israni (meter tester), officer at the Lab tested the impugned meter in his absence and vide its report no. BCS/EM/TPI/18/716 dated 17.07.2018 observed as under: a. Hologram seals not available. b. Meter terminal block found abnormally burnt. c. Meter LCD was found not OK. d. Meter data could not be downloaded. In conclusion, the laboratory declared that meter found abnormally burnt.

7. That in reference of the Lab Report bearing BCS/EM/TPI/18/716 dated 17.07.2018, and as per the direction of DGM Enfo. Outer West, an inspection headed by Shri Shalendra Tiwari, Asst. Manager, hasbeen carried out by an inspection at the above said premises on 23.07.2018 and during the inspection following observations was made. a) That at the time of inspection a new Meter Bearing No. 40793354 with C/R-167 KWh found at site. b) With reference of Lab Report no BCS/EM/TPI/18/716 dated 17.07.2018 BRPL Ref No. 784005 dated 21.06.2018, old meter was found abnormal burnt. c) Connected load assessed by team and found to be 6.683 KW/DX. d) Consumer did not allow videography of the load. e) Necessary viodeography done at site by Arora Photo Studio. f) Other Meter Bearing No- 40772593 was also installed at site. g) The Inspection Report, Meter Detail Report, Load Report & Seizure Memo were prepared by the members of the Inspection Team at site. Plaintiff was present during the entire process of the inspection but refused to receive and sign the inspection reports as evident from the documents. h) The details of inspection carried out at the site are as follows: Case ID: RW230718CA027 CA.NO.: 102694688 Electronic Meter No.: 24312625 (Old) 407993354 (New) User/ R/C: Sh. Jaginder Singh Address: H. No. P No.-40, Village- Mundka, NR POLE NO-MDK K 079, Near Mandir, New Delhi-110041 Sanction Load: 1.00KW/DX Connected Load: 6.683 KW/ DX/DAE Category: DX

9. That during course of Inspection the member of the raiding team as per the procedure and under the leadership of Shri Shalendra Tiwari, AM (Enf) prepared the Seizure Memo at site. No material evidence was seized at the time of Inspection as the burnt Meter was already seized on 21.06.2018 and was sent to the Lab. The seizure memo prepared at the time of inspection bears signature of Shri Shalendra Tiwari, AM.

10. That at the time of raid, necessary Videography showing the Connected Load, was taken by the photographer Shri Ajit Singh from M/s Arora Photo Studio. The Compact Disc containing the said Videography taken at the time of the inspection/raid is filed along with the Written Statement.”

20. From a reading of the written statement, in my view, it cannot be argued by the Plaintiff that there is an evasive denial by the Defendant of the averments/allegations in the plaint. Most significantly, Defendant has repeatedly asserted that inspection was carried out at Plot No. 40 and after certain irregularities with respect to burningof the meter, removalof seals, etc. were noticed,the Speaking Order was passed.

21. To this Court, theview taken by the Trial Court that there are no admissions by theDefendant and that even the denial in the written statement is neither vague nor evasive entitling the Plaintiff to a decree under Order 12 Rule 6 CPC, is the correct view. The Trial Court has also and in my view rightly so, observed that the issues raised by the Plaintiff with respect to theextentof construction on the two plots in question, tampering/theft, if any, meter readings of the meters installedin the two plots,consumption pattern, downloadingof meter data, etc.would be a matter of trial. The Supreme Court has, time and again, cautioned that power under Order 12 Rule 6 CPC is discretionaryand cannot be claimed as a matter of right and while the intent of the Legislature behind the provision is expeditious disposal of the suit,the discretion must be exercised with abundant caution, when decreeing a suit without trial.

22. At this stage, learned counsel for the Defendant points out another fact which, in my opinion, is relevant. It is stated that Defendant has filed a criminal complaint being CC No.444/2021, before the Special Electricity Court, in which summoning order has been issued and summons have been received by the Plaintiff. The said order has been assailed by the Plaintiff in thisCourt,in which it is clearly stated that the complaint relates to an inspection carried out at Plot No. 40. This prima facie belies the stands of the Plaintiff that no inspection was carried out in the said plot.

23. In view of the aforesaid, this Court finds no infirmity in the impugned order, calling for any interference. It is, however, made clear that the observations made above are only for the purpose of deciding the present Revision Petition and will have no bearing on the final adjudication of the suit.

24. Revision Petition is dismissed,being devoid of merit along with pending application.

JYOTI SINGH, J MARCH 01, 2023/kks/rk

Joginder Singh Lakra v. BSES Rajdhani Power Ltd.

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