This revision petition under section 115, C.P.C. Has been filed by the defendants/petitioners to call in question the order dated 28-5-1999 passed by the learned Additional District Judge, Lahore, dismissing the appeal of the petitioner, whereby, the order dated 21-5-1999 passed by the learned Civil Judge, Lahore, allowing the application for temporary injunction filed by the respondent/plaintiff in a suit titled as: Amin Ice Factory v. WAPDA etc. Was upheld.
2. Briefly stated the facts of the case are that the respondent/plaintiff instituted a suit for declaration with mandatory injunction challenging therein a detection bill for a sum of Rs.56,42,473.81. For the period from April, 1997 to August 1998 issued by the petitioners against consumption of electricity. It was claimed that the respondent has been receiving electricity energy for an Ice Factory being run in the name and style of Amin Ice Factory, Shamnagar Chauburji, Lahore, against Reference No.9252-00015001. It was also claimed that the electricity connection was a seasonal connection which commenced every year in the month of May until middle of October of the same year and that in January, 1999, while the factory was closed, the Defendants/Petitioners Nos.3 and 4 alongwith Army Personnels inspected the factory of the plaintiff without associating him or any of his representative to observe that MDI meter was bye-passed and that the F.I.R. Was registered against the respondent/plaintiff under section 39-A of the Electricity Act, 1910. The detection bill for the aforesaid period had been issued and the meter was removed from the premises. The plaintiff claimed that the detection bill issued in his name was illegal and without lawful authority. It was prepared in an arbitrary manner for creating harassment to him. Alongwith the suit the plaintiff had filed an application for mandatory temporary injunction for the restoration of the electricity connection. The trial Court allowed the application with the observation that the plaintiff shall deposit Rs.10,00,000 in cash under protest, whereas for the remaining amount he shall furnish surety bond, if his suit is dismissed vide order dated 21-5-1999.
Feeling aggrieved, the petitioners preferred an appeal and the learned Additional District Judge, Lahore, vide order dated 28-5-1999 dismissed the same upholding the orders of the trial Court but directed the respondent to deposit rupees fifteen lacs.
3. Learned counsel for the petitioners contended that both the Courts below passed the impugned orders and issued interim injunctions without deposit of outstanding amount in violation of the principle laid down in the cases of WAPDA through its Chairman and 5 others v. Messrs Kashmir Steel Furnance alias T.I. Steel Furnance (1999 CLC 492) and Muhammad Akbar v. WAPDA through Chairman, WAPDA House, Lahore and 3 others (1999 CLC 1198).
4. On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioners. He contended that the electricity connection of the respondent was disconnected and the detection bill was issued without issuing the show-cause notice and in such circumstances the deposit of amount before issuing the temporary mandatory injunction is not a pre-condition, therefore, both the Courts below committed no illegality.
5. I have heard the learned counsel for the parties and also perused the record. The real contest is not against the grant of injunction, but against the grant of injunction without deposit of the amount of disputed bill. Proviso to section 54-C of the Electricity Act, 1910 provides that: "Bar of Jurisdiction.--(1) Where a licensee notice referred to in subsection (1) of section 24 or discontinues supply of energy to a premises under the provisions of this Act, no Court shall make an order prohibiting the licensee from discontinuing supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect: Provided that nothing contained herein shall apply to a case in which the plaintiff, applicant or appellant, within a period of thirty days of the aforesaid date or at the time of filing the suit, application or appeal, as the case may be, deposits with they Court the amount assessed against him by the licensee and all further charges of the licenses as and when they become due; and in the event of his failing to do so, any order prohibiting the licensee from discounting the supply of energy to the premises, if already made, shall cease to have effect.
(2) Where an amount has been deposited under subsection (1), the Court, shall direct it to be deposited in a scheduled bank in the name of the licensee on an undertaking being furnished by the licensee to the effect that in case the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable return at the Court may determine."
This provision of section 54-C of the Electricity Act. Provides, that provisions of this Act shall not apply if the plaintiff deposits in the Court the amount assessed against him by the licensee and by other due charges of the licensee as and when they become due, and if the amount is deposited, the same shall be directed to be kept in the scheduled Bank in the name of the licensee; and hat if the suit shall be decided against him he would re-pay the said amount the plaintiff. This provision of section 54-C was discussed in the case of WAPDA v. Messrs Kashmir Steel Furnance noted (supra) wherein the Hon'ble Judge of this Court relying on a case of Mst. Raeesa Bibi v. S.D.O.
WAPDA (PLD 1990 Peshawar 105. Observe he operative part of the judgment is reproduced as under: "Again a reference to section 54-C of the Electricity Act (IX of 1910) as amended by the 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 bed 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."
This view was adopted in case of Messrs Kashmir Steel Furnace noted (supra) and the Hon'ble Judge of the Lahore High Court observed as under: "In view of the rule laid in the judgment noted supra, the order of the learned Additional District Judge, allowed 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."
This provision of section 54-C was also discussed in case of Haji Sher Muhammad v. WAPDA through its Chairman and 2 others (PLD 1988 Lahore 511) and Naeem Oil Mills v. WAPDA (1986 MLD 680). In case of Naeem Oil Mills, in the month of November, 1982, the respondent/WAPDA issued a bill of Rs.35,237.55 for 17590, the actually consumed units plus 20,000 units on the basis of average without assigning any reason, wherein the Hon'ble Judge of this Court held as under: "It is now, well-settled that before creating a charge against a consumer on account of electric energy consumed but not accounted for service of show-cause notice is a condition precedent and that before repaying a ' detection bill' on account of unaccounted for consumed electric energy it is necessary on the part of the WAPDA to associate the consumer at the time of checking and calculation of the units and afford him an opportunity to meet the charge of theft/tampering with the meter."
Section 24 of the Electricity Act provides, as under: "Discontinuance of supply to consumer neglecting to nay charge.--(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days notice writing to such consumer and without prejudice to his right recover such charge or, other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer and may discontinue the supply until such charge of other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but not longer.
(2) Where any difference o any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licence shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision: Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty per cent of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue and the consumer has failed to comply with such request within a period of fifteen days from the date of such request or, as the case may be, from the date of receipt of bills in respect of further charges for supply of energy. "
The provisions of section 24 of the Act make it manifestly clear that if the consumer neglects to pay any charge for energy or any sum other than a charge for energy assessed against him by a licensee in respect of the supply of energy to his premises, the licensee may after giving 7-days clear notice in writing to such consumer without prejudice to his right recover such charge or other sum by suit or otherwise cut-off the supply or disconnected any electric supply line, being the property of the licensee but without the issuance of the notice to the consumer no such action can be A taken.
5. The section 24 of the Act provided issuance of the notice prior to the disconnection of the electric supply and section 54-C of the Act contemplates that if the licensee has given the notice to the consumer referred to in subsection (1) of section 24 then without the deposit of the amount assessed against the consumer, the Court shall not make an order prohibiting the licensee discontinuing supply of energy to the premises of the consumer and if, notice is not issued under the provisions of law referred to above, then there is no bar in issuing the injunction without deposit of the assessed amount in the Court. In case of Haji Sher Muhammad noted (supra) this point was discussed and the Hon'ble Judge of the Lahore High Court observed as under: "The petitioners in the suit has raised substantial question of law regarding non-observance of mandatory provisions of sections 24 and 26 of the Electricity Act, before disconnection of their electricity supply which are to be tried in the suit and they are entitled to adduce evidence to establish that the impugned action of the respondents was not permitted by law. Prima facie, the petitioners case gains support from judgments reported as Dr. Muhammad Rafiq Chaudhry v: WAPDA etc. (1983 CLC 2397) and Firdous Oil Mills v. WAPDA and another (1983 CLC 3315). In the former reported case it has been held that section 54-C of the Electricity Act baring jurisdiction of the court to entertain suit and pass an order for restoration of supply of energy unless the plaintiff had deposited with the Court the amount assessed against him by the licensee was not applicable where the licensee had not been given notice as provided in subsection (1) of section 24 of the said Act and in the later reported case, rule has been laid down that before ; disconnection of supply of energy a written notice was necessary to be given without which the very action of disconnection of supply of energy was unlawful. Learned counsel for the respondents vaguely that section 54-C is applicable also where the supply for energy has been discontinued by the licensee even without issuance of notice under subsection (1) of section 24.
According to him the word 'section 24' the Legislature has used the word ' or' which makes the following part of the section independently as such the case of mere disconnection of supply for energy would be covered by section 54-C and a plaintiff is required to deposit the disputed amount before he could maintain the suit. In my view, the argument has wrong angle. It has been specifically provided by the said provision of law referred to by, the learned counsel that disconnection of supply of energy must be under the provision of the Act and the main objection of the petitioners was that the electric connection has been cut-off in violation of the mandatory requirements of the Act itself, therefore, the said reported judgment would be fully attracted to the case and can be passed into service in order to establish existence of prima facie case in favour of the petitioner. It is a case where the supply of energy to the industrial premises of the petitioners has been discontinued which has resulted in bringing their business to a halt,, therefore, it could justifiably be maintained by them that balance of convenience was also in their favour and it was they who were to suffer irreparable loss in case of refusal to pass temporary mandatory injunction as prayed for. It was the illegal act of respondent itself which she created a circumstance where the petitioners were put in such a situation that they could not file a suit before disconnection of supply of energy has taken place. Had the respondents act as provided in section 24(1) and issued a notice, the petitioners would have approached the Court seeking a relief in the form of temporary injunction for maintenance of status quo before the actual disconnection of electricity has taken place. Since the respondent itself directly proceeded to discontinue the supply of energy without compliance with the provisions of law, therefore, the situation- was created in which the petitioners could only approach for temporary mandatory injunction. While raising a plea that the Court was debarred from passing an order of temporary mandatory injunction, the respondent actually was trying to get premium over its own wrongful act which was prima facie violative of the provisions of law. A party to a litigation due to its illegal acts cannot be allowed to deprive the Court of its jurisdiction to pass order to do justice when the matter is brought before it. Keeping in view the circumstances as noted above and applying the abovementioned principles regarding issuance of both kinds of temporary injunctions the case in hand is exceptional, and therefore, requires special treatment. In these circumstances, it can safely be concluded that exceptionally the case is one in which withholding a mandatory interlocutory injunctions would in fact carry a greater risk of justice (if the plaintiffs are wrong) than granting it. It is difficult to see how the: restoration of supply of energy to the plaintiff would cause un-compensatable loss to the respondents whereas failure to restore the electric connection at this stage would certainly cause loss to the petitioner which might be very difficult to quantity and shall have the consequence of not only closing down his industry, but also depriving him to earn livelihood as such in the circumstances of this case there is a much greater risk of injustice being caused to the petitioner if the injunction was withheld than if the injunction was granted and the petitioner did not succeed at trial, therefore, in my view it would in all circumstances be right to make such an order. "
7. In the instant case, the petitioners/WAPDA had not issued any notice to the respondent, nor associated him or his representative while E preparing a detection bill and, therefore, the notice to the consumer before disconnection of supply of energy is must, .It cannot be allowed to be avoided.
8. I am in agreement with the view settled in case of Haji Sher Muhammad (supra) and constrained to hold that where a licensee has not issued notice to the consumer to discontinue his supply of energy due to the non-payment of amount assessed against him by the licensee, the Court has the jurisdiction to entertain and pass an order for restoration of supply of energy without the order for deposit of amount. Therefore, in the circumstances mentioned above, I am not inclined to interfere in the impugned orders of the Courts below.
9. Resultantly, this petition having no force is dismissed. There shall be no order as to costs.