Haryana

Kaithal

CC/92/2023

Suresh Kumar - Complainant(s)

Versus

The Sub Divisional Officer UHBVN etc. - Opp.Party(s)

Sh. Amrit Sagwal

12 May 2023

ORDER

Complaint Case No.92 of 2023.

Present:     Sh. Amrit Sagwal, Adv. for the complainant.

                Today the case is fixed for consideration on the point of maintainability.  The complainant has alleged in the complaint that he was having an electricity connection bearing No.550343501 (DS) in his residential house.  The consumption bill amount of Rs.907/- was paid by the complainant on 21.06.2017.  The complainant received a message of due amount of Rs.18,599/-.  On the next day, the complainant moved an application to the OPs for correction in consumption bill amount.  On 09.01.2018, in the absence of complainant and without giving any notice, the OPs took the electricity meter of the complainant.  The electricity bill of Rs.18,599/- was not rectified.  The complainant filed a suit for seeking declaration and permanent injunction regarding the electricity amount of Rs.18,599/- before the ld. Civil Court, Kaithal and the civil suit was decreed by ld. Civil Judge (Sr. Div.), Kaithal vide order dt. 17.03.2023.  Ld. counsel for the complainant has placed reliance upon the case law titled as Mahindra Holidays & Resorts India Ltd. Vs. Hemant Kumar M. Wadekar, bearing first appeal No.364 of 2011 date of decision: 12.12.2013 reported in 2013(5&) RCR (Civil) 857.      

                We have perused the case file.  It is clear from the pleadings that earlier the complainant had filed a civil suit for declaration & injunction in the Civil Court and the same was decided by the court of Sh. Parvesh Singla, the then Civil Judge (Sr. Division), Kaithal on 17.03.2023.  However, it is pertinent to mention here that when the matter has already been decided by the Civil Court, then as per Section 11 of CPC, this Commission cannot entertain the same. Under Section 11 C.P.C. it is provided as under:

          “S. 11. Res judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”.

Explanations I to VIII:…….

 

        Section 12 C.P.C. provides as under:-

 

          “S.12. Bar to further suit:- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies”.

        Under Section 21-A, inserted in 1976-77 quoted in Appendix A it is provided that a decree cannot be challenged through another suit on the ground that the court which passed the disputed decree had no territorial (including pecuniary) jurisdiction. (See also synopsis 4)

        Under Section 47 (1) it is provided as under:-

 

          “Section 47(1) All questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit”.

        Restitution on reversal of decree may be obtained only from the court which passed the decree as provided under Section 144(1) C.P.C. Suit for restitution is barred under Sub Section 2 thereof which is quoted below:

        144 (2) No suit shall be instituted for the purposes of obtaining any restitution or other relief which could be obtained by applicant under sub-section (1)

        Order 2, Rule 2, C.P.C. provides that if part of the claim or some relief flowing from the cause of action is not claimed in the suit, it cannot be claimed through another suit. Order 2, Rule 2 to 4 are quoted in Appendix A.

        Order 9, Rule 8 makes it obligatory upon the court to dismiss the suit if defendant appears and plaintiff does not appear. Thereafter it is provided under Order 9 Rule 9 (1) (first sentence) as follows:-

        “Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action”.

        In case of resistance to execution of decree for possession of immovable property or dispossession of wrong person therein applications are to be filed under Order 21 Rule 97 and 99 which are to be decided under Rule 98 or 100. Such orders before 1976-77 amendment in C.P.C. (Act No. 104 of 1976 w.e.f. 1.2.1977) were subject to the result of the suit. However, through amendment of 1976-77 it was provided under Rule 101 that:

        “All questions arising between the parties on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. Under Rule 103 such adjudication is given the status of decree subject to appeal”.

        Under Rule 104 it is provided that if any suit was pending on commencement of the proceedings under Rule 101 or Rule 103 then orders passed under the said rules shall be subject to the result of the suit.

                Keeping in view the above Sections and the facts and circumstances of the present case, we are of the considered view that the matter in question has already been decided by the Civil Court, therefore, the present complaint is not maintainable before this Commission.  The authority produced by the complainant is not distinguishable but the same is not applicable to the facts of present case.  So, we are of the considered view that the present complaint is barred by the principle of resjudicata.  Hence, we dismiss the complaint at the time of admissibility of the complaint.  A copy of this order be sent to the complainant free of cost.  File be consigned to the record room after due compliance.

Announced:

Dated:12.05.2023.

                                                                        President.

                                Member     Member

Typed by: Sanjay Kumar, S.G.