PASCHIM GUJARAT VIJ COMPANY LTD THROUGH vs VITHHALBHAI DAHYABHAI @ VITHHALBHAI RAIYABHAI DUDHREJIA
- Court
- Gujarat High Court
C/FA/1987/2012 JUDGMENT DATED: 04/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1987 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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PASCHIM GUJARAT VIJ COMPANY LTD THROUGH
Versus
VITHHALBHAI DAHYABHAI @ VITHHALBHAI RAIYABHAI DUDHREJIA
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Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/05/2026
JUDGMENT
1. This is an appeal under Section 96 of the Code of Civil
Procedure, 1908 (‘the Code’, for short) challenging the
judgment and decree dated 29.08.2011 passed by the Special
rd
Judge, 3 Additional Sessions Judge, Surendranagar in
Regular Civil Suit No.149 of 2009 whereby the suit filed by
the Paschim Gujarat Vij Company Limited, Rajkot (‘PGVCL’,
for short) to recover the amount of supplementary bill has
been dismissed. Process has been served to other side,
however, non remained present.
2.1 The facts in brief are that despite the original defendant
was not the customer / consumer of PGVCL, he obtained
electricity connection by hooking yellow color wire extracted
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electricity illegally from low pressure pole no.1/442. While
checking took place on 12.05.2006, the wife of the defendant
was present on the spot but she refused to sign in checking-
sheet. Thereafter again on 12.12.2006, surprise checking was
taken place at the place of defendant and again he was found
extracting the electricity illegally and, therefore, criminal
complaint was lodged. In nutshell, after two surprise checking
and preparing necessary documents, PGVCL issued
supplementary bill of Rs.1,04,712/- to the defendant and
issued notice to the defendant to pay the said amount.
However, defendant did not pay said amount to the PGVCL
and, therefore, PGVCL has filed suit for recovery of the said
amount along with interest.
2.2 In the suit, learned trial Court, after fixing the issues
permitted both the parties to lead evidence and dismissed the
suit vide judgment and decree dated 29.08.2011. It is in this
background, the PGVCL is before this Court by way of present
appeal.
3. Heard learned advocate Mr.Premal Joshi for the PGVCL.
Though served none remained present for other side.
4. The learned trial Court dismissed the suit mainly on the
ground that evidence produced by the plaintiff was not
reliable and failed to prove that defendant has extracted
electricity illegally. The learned trial Court, while dismissing
suit, also found that certain evidence has not been led by
plaintiff PGVCL. In view of that, while interpreting the
evidence on technically ignoring the basic principle of
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probability, learned trial Court dismissed the suit.
5. This Court does not endorse the view of learned Special
Court, more particularly considering the judgment of this
Court rendered in case of Gujarat Electricity Board Limited
Now Paschim Gujarat Vij Co. Ltd. vs. Pragjibhai Bhagwanbhai
Patolia in Second Appeal No.21 of 2005, more particularly
after taking worthy assistance of para:7 thereof, which reads
as under:
7. Having heard learned advocate Mr.Dave and
considering the judgment in Second Appeal No.11 of 2012
passed by Co-ordinate Bench having complete binding
precedent, I am totally surprised by finding given by
learned Courts below, whereby, learned Courts below
intend to decide legality of supplementary bill which has
attained finality in absence of any valid challenge to it. It
was simple suit for recovery of supplementary bill. There
is no reason for the learned Appellate Court or learned
Trial Court to decide any legality in regards to
supplementary bill. Learned Appellate Court as well as
learned Trial Court instead of seeing wood try to see
branches of tree. Relevant finding of Co-ordinate Bench in
case of Bhikhabhia Arjanbhai Varu (supra) in para 5, 5.1
and 5.2 reads as under :-
"5.0. Heard the learned advocates for the respective
parties at length. At the outset, it is required to be
noted that respondent hereinoriginal defendant was
found to have indulged in the malpractice and has
committed the theft of electricity by using illegal
means for which a supplementary bill of Rs.30560.66
was issued. It is required to be noted that as per the
condition of Supply of Electrical Energy if the
consumer is aggrieved by the supplementary bill, in
that case, he is required to prefer an appeal before the
Appellate Authority. It is also required to be noted that
as per the condition of Supply of Electrical Energy if a
person/consumer is found to be indulged into
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malpractice, is required to pay additional charge as
per the ABCD formula as per the condition of Supply of
Electrical Energy. It is an admitted position that
respondent herein original defendant has not
challenged the supplementary bill before the Appellate
Authority as provided under the condition of Supply of
Electrical Energy. Therefore, as such the
supplementary bill issued by the appellant original
plaintiff has attained the finality. As the respondent did
not make payment of the supplementary bill, the
appellant herein original plaintiff instituted suit for
recovery of amount under the aforesaid supplementary
bill I.e. for recovery of Rs.30560.66 and in the said suit
preferred by the appellant to recover an amount under
the supplementary bill, for the first time in the said
suit the respondent herein original defendant
challenged the supplementary bill. Therefore, short
question which is posed for consideration of this Court
is whether in a case where consumer has not
challenged the supplementary bill by way of appeal
before the Appellate Authority as provided under the
condition of Supply of Electrical Energy and thereafter
when the Board has filed the suit for recovery of the
amount under the supplementary bill is it open for the
consumer to challenge the supplementary bill and/or
take the same contention by way of defence in the suit
filed for recovery of the dues under the supplementary
bill which he could have taken in an appeal before the
Appellate Authority?
5.1. Identical question came to be considered by the
Division Bench in the case of Vrajlal Devjibhai vs. GEB
in First Appeal No.2506 of 2003 and it is held by the
Division Bench that if consumer is found to have
indulged in to any malpractice etc he has to pay
additional charge as may be levied by the Board and if
the supplementary bill is issued, the proper remedy for
the consumer is to prefer the appeal to the Appellate
Authority as provided in the condition of Supply of
Electrical Energy and if the consumer has not availed
of that remedy, thereafter it is not open for him to take
up same contention by way of defence in the suit filed
for recovery of dues assessed in accordance with the
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conditions of supply. In the said decision the Division
Bench considered the decisions of the Hon'ble
Supreme Court in the case of Punjab State Electricity
Board and Anr vs. Ashwani Kumar reported in (1997) 5
SCC 120 as well as in the case of Hyderabad
Vanaspathi Lid vs. A.P. State Electricity Board and
Others reported in (1998) 4 SCC 470 and in para 5 the
Division Bench has observed and held as under.
5. As held by the Supreme Court in PUNJAB STATE
ELECTRICITY BOARD & ANRU. ASHWANI
KUMAR (1997) 5 SCC 120), although Civil Court
had jurisdiction to go into disputed questions of
civil nature, cognizance of civil cause was excluded
by virtue of supplementary rules providing for
disposing of the disputes expeditiously. It was held
that the Civil Court was not justified in
entertaining the suit and giving a declaration
without directing the party to avail of the remedy
provided under the Indian Electricity Act, the
Indian Electricity (Supply) Act and the instructions
issued by the Board in that behalf from time to
time. It is also held by the Supreme Court in
HYDERABAD VANASPATHI LTD. A.P.STATE
ELECTRICITY BOARD & OTHERS (1998) 4 SCC
470 that the Board in performance of a
supplementary duty supplied energy on certain
specific terms and conditions framed in exercise of
a supplementary power and undoubtedly they were
supplementary in character. It is also held that for
ascertaining the loss and fixing the compensation,
a uniform procedure has to be framed and a
machinery constituted and if a consumer is found
indulging in any malpractice etc., he has to pay
additional charges as may be levied by the Board.
Thus, the proper remedy for the appellant was to
prefer an appeal to the Appellate Authority as
provided in the Conditions of Supply of Electrical
Energy and the appellant having admittedly not
availed of that remedy, it was not open for him to
take up the same contentions by way of defence in
the suit filed for recovery of the dues assessed in
accordance with the Conditions of Supply. The trial
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Court has not committed any error in reaching its
findings in favour of the respondent for the reasons
given by it with which we fully agree".
5.2. Under the circumstance, the learned trial Court
has materially erred in considering defence of the
consumer challenging the supplementary bill when the
said bill has not been challenged by the consumer by
way of appeal before the Appellate Authority as
provided under the condition of Supply of Electrical
Energy. Considering the aforesaid facts and
circumstances, the learned trial Court ought to have
passed the decree for the entire amount under the
supplementary bill i.e. Rs.30,560.66."
5. In view of the above, the matter is required to remand
back to the learned trial Court for fresh consideration.
6. The findings of the learned trial Court, even at first
blush, appear to be against settled principle of law and
improper, unjust and against the aforesaid view taken by this
Court.
7. In the decision of Hon’ble Supreme Court in case of
North Delhi Power Limited (Now Known as Tata Power Delhi
Distribution Ltd.) vs. Devinder Singh rendered in Civil Appeal
No.20842 of 2017, the Hon’ble Supreme Court, after
analysing various provisions of the Electricity Act, 2003, was
pleased to decide the civil suit filed, held that the Special
Electricity Court is established to exclusively deal with
criminal matters under the Act and does not possess
jurisdiction to entertain the civil suit.
8. In view of the above, appeal is allowed. The impugned
judgment and decree dated 29.08.2011 passed by the Special
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rd
Judge, 3 Additional Sessions Judge, Surendranagar in
Regular Civil Suit No.149 of 2009 is quashed and set aside.
The proceedings of Regular Civil Suit No.149 of 2009 is
remanded back to the learned trial Court. Following the
dictum of order of Hon’ble Supreme Court in case of North
Delhi Power Limited (Now Known as Tata Power Delhi
Distribution Ltd.) vs. Devinder Singh (supra) , the suit being
Regular Civil Suit No.149 of 2009 is restored before the Court
of learned Principal Senior Civil Judge, Surendranagar, who in
turn, is entitled to delegate / transfer the suit to any
competent Court. Records and Proceedings, if any, lying with
this Court, is ordered to be returned back to the competent
Civil Court, forthwith.
9. The learned Trial Court shall consider that the suit is
pending since the year 2009, therefore, shall decide the said
suit within a period of six months from the date of receipt of
this order. It is needless to state that this Court has not gone
into merits of the case and the trial Court shall decide the suit
proceedings afresh, on its own merits, without being
influenced with the any of observation of this Court.
(J. C. DOSHI,J)
MISHRA AMIT V.
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