BHUSAWAL BOROUGH MUNICIPALITY Vs. AMALGAMATED ELECTRICITY CO LTD

JUDGEMENT

(1.) This judgment will also govern C. A. No. 48 of 1961. Both the appeals are by special leave from the judgment of the Bombay High Court in second appeal disposing of two appeals which arise out of two separate suits instituted by the appellant, the Borough Municipality of Bhusawal, against the Bhusawal Electricity Co. Ltd., respondent No. 1 before us, to which suits the State of Bombay was later added as a defendant.

(2.) In each of the two suits the appellant had claimed refund of two sums of money paid by them to the respondent No. 1 under protest as electricity charges to which the respondent No. 1 claimed to be entitled by virtue of an order made by the Government of Bombay under the Bombay Electricity Supply (Licensed Undertakings War Costs) Order, 1944 (herein referred as Surcharge Order). The appellant succeeded in both the suits in the trial Court as well as the District Court. In second appeal, however, the High Court set aside the decrees passed by the trial Court and dismissed the two suits. While doing so, the High Court admitted on record certain documents by way of additional evidence and the only contentions raised before us by Mr. G. S. Pathak for the appellant are firstly that the High Court is incompetent in second appeal to admit additional evidence on record inasmuch as O. XLI, R. 27, C. P. C. is inapplicable to a second appeal. Secondly, the provisions of O. XLI, R. 27 cannot be used to fill up the lacuna in the evidence left by a party.. We may incidentally mention that when the High Court, by its order, dated April 30, 1958, decided to admit additional evidence on record, no objection was raised on behalf of the appellant before us.

(3.) It seems to us to be wholly unnecessary to decide in this case whether the High Court has the power to admit additional evidence in second appeal and also whether even if it has that power it was right in admitting the evidence in the circumstances of this case. Basing itself on a particular interpretation of the agreements regarding payment of electricity charges with respondent No. 1 the appellant claimed refund on the ground that it was not liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy consumed by it. The substantial defence of respondent No. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to Cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and respondent No. 1. The relevant provisions read thus: Clause 5: