This judgment will decide Civil Revisions Nos.714 and 715 of 1998 as, common questions of law and facts arise therein.
2. Respondent filed suit for declaration with mandatory injunction challenging therein a bill for a sum of Rs.20,63,546 issued by the petitioner against consumption of electricity. It was claimed that the respondent was receiving electric energy for the furnace which was being run in the name and style of Messrs Kashmir Steel Furnace alias T.I. Steel Furnace, Bund Road, Baghbanpura near Crool Ghati, Lahore against Reference No.9351 0002800 6. The sanctioned load of 17000 KW and Tariff B-3 was applicable. It was also claimed that the respondent regularly made payment against the bill which was issued time to time. On 20-9-1997 when the furnace was in operation there was a breakdown of electricity which allegedly caused some losses to the respondent who filed suit for recovery of compensation and damages for sum of Rs.1,40,00,000 which is pending. The petitioner was sent a bill for the month of, October, 1997-for Rs.20,63,546 payable till 24-11-1997. Which he challenged in the suit as illegal and mala fide. Respondent claimed that the amount in question could not be recovered.
3. Alongwith the suit an application under Order XXXIX, Rules 1 and 2, C.P.C. Was filed for the issuance of temporary injunction to restrain the petitioner from disconnecting the electricity supply or recovering the disputed bill.
4. The learned Civil Judge vide order, dated 24-11-1997 directed the respondent to deposit 1/2 amount of the disputed bill and submit bank guarantee for the remaining 50 % . He further directed that if the amount would be deposited and bank guarantee furnished then the electricity supply would not be disconnected. Aggrieved by the order both the parties filed separate appeal; one appeal was filed by the petitioner while the other was filed by respondent/plaintiff. The learned Additional District Judge vide order, dated 5-3-1998 dismissed the appeal of the petitioner WAPDA, accepted the one tiled by the respondent and modified the order of the Trial Court to the effect that the electricity supply would not be disconnected subject to furnishing of security bond for the payment of the disputed bill in the Trial Court with an undertaking that the respondent would pay the amount within seven days if the suit was decided against the respondent. In these two revisions, the order of the learned Additional District Judge as well as learned Civil Judge have been called in question.
5. Learned counsel for the petitioners argued that respondent had no prima facie case for the grant of temporary injunction and in any case the learned Appellate Court or learned Trial Court did not have jurisdiction to grant injunction without depositing the amount against disputed bill.
Learned counsel for the respondent argued that due to breakdown the furnace was not functioning, and therefore, the bill was imaginary. It was added that in the absence of a notice under section 24 of the Electricity Act, the provision regarding deposit of the amount of bill were not attracted and, therefore, the learned Additional District Judge was competent to allow furnishing of security for the payment of the disputed amount. Reliance was placed on Dr. Muhammad Rafiq Chaudhry v. WAPDA and others 1983 CLC 2397.
6. I have given my anxious consideration to the points raised by the learned counsel for parties and have carefully scrutinized the material annexed with this petition.
The dispute pertains to the payment of the electricity bill for the month of October, 1997. The `amount of bill was Rs. 20,63,546 and by adding surcharge due to non-payment within time, the claim of the petitioner is for a sum of Rs.22,68,722. Case of the respondent is that there was a breakdown without intimation, which caused losses to tic respondent for which a suit for damages was filed against the petitioner. It is also one of the allegation that the respondent did not operate the furnace during October, 1997. The two Courts below found that the points raised require consideration and the respondent had a prima facie case. The question as to whether the furnace was closed or could not operate would obviously be decided after the evidence is recorded, and therefore, the existent of prima facie case cannot be ruled out at this stage.
7. The real contest is not against the grant of injunction but against the grant of injunction without deposit of the amount disputed bill. Proviso to section 54(c) of the Act provides that provisions of this Act shall not apply if the plaintiff deposit in Court, the amount assessed against him by the licensee and all other dues/charges of the licensee as and when they become due and if the amount is deposited the same should be directed to be kept in scheduled bank in the name of licensee with undertaking from the licensee that in case the suit would be decided against him he would repay the said amount to the plaintiff with such reasonable return as the Court may determine. In Mst. Raeesa Bibi v. S.D.O. WAPDA PLD 1990 Pesh. 105 it was observed that temporary injunction restraining the defendant to discontinue the supply of electricity if not made contingent by way of direction to pay the outstanding charges would clearly be violative of expressed provisions as contained in section 54(c) of Electricity Act, 1910: The operative part of the judgment reads as under: "9. Again, a reference to section 54-C of the Electricity Act (IX of 1910) as amended by Electricity Act (IX of 1910) as amended by Electricity (Amendment) Ordinance (LXII of 1979) would indicate that as per its proviso, a plaintiff is required to deposit with the Court the amount assessed against him and in the event of his failing to do so ' any order, prohibiting the licensee from discontinuing the supply of energy to the premises, shall cease to have effect'. Such being the case, I find that the temporary injunction restraining the defendants to discontinue the supply of electricity to the petitioner, if not made contingent by way of directing the petitioner to pay the outstanding electricity charges, shall be clearly violative of the express provisions as contained in section 54-C of the Electricity Act, 1910. The only flaw which I notice with the impugned order of the learned Appellate Court is that instead of ordering the outstanding amount to be deposited in Court, the learned District Judge, Mansehra vide his order, dated 4-3-1989 seems to have directed the petitioner to make the payment presumably to the respondents, which needs to be corrected."
8. In view of the rule laid in the judgment noted supra, the order of the learned Additional District Judge, allowing injunction subject to furnishing of security and not requiring the deposit of amount of disputed bill, is violative of the provisions of section 54-C of the Electricity Act, 1910. Without deposit of the amount the injunctive order could not have been issued.
Even otherwise, notwithstanding existence of prima facie case, the respondent cannot succeed without deposit of the amount in question for the reason that the ingredient of irreparable loss is missing in this case. For obtaining temporary injunction one has to show existence of prima facie case, balance of convenience and irreparable loss. Even if the first two ingredients are 3 found to be in favour of the respondent yet the element of irreparable loss is missing as the dispute primarily relates to a definite sum the respondent cannot claim sufferance of irreparable loss if he is made to pay the same. In these circumstances, if the respondent seeks indulgence in discretionary jurisdiction then he shall act fairly and reasonably and propriety demands that the disputed amount be deposited in the Court, if the injunction is claimed. The learned Additional District Judge, while modifying the order of the learned Trial Court, ignored the provisions of section 54-C of the Electricity Act and also the facts noted supra. While exercising his discretion the learned Additional District Judge acted with material illegality and fancifully.
9. For the reasons above, these revisions are allowed, and the impugned orders are modified to the effect that the petitioner should not disconnect the electricity supply, subject to the condition that the respondent deposit in Court, the amount of Rs.20,63,546 i.e. (principal amount of bill without surcharge) within thirty days from the date of this order failing the application for temporary injunction should stand dismissed and the ad interim injunctive order shall stand withdrawn. If the amount is deposited in the Court the same shall be kept in some scheduled bank in some profit bearing scheme for final disbursement in accordance with ultimate order of the Court.