UNION OF INDIA Vs. RAJNIKANT KANAIYALAL PARIKH

JUDGEMENT

(1.) THIS appeal under section 100 of the Code of Civil Procedure is by the original defendant against whom the respondent-original plaintiff filed Regular Civil Suit No.17 of 1989 for recovery of Rs.5730.00 from the defendant. It is the case of the plaintiff that the plaintiff was the subscriber of Telephone Connection No. 2172 of the defendant and though the plaintiff had not made STD Calls, still, the defendant served bills to the extent of Rs.5960.00. It is further case of the plaintiff that the plaintiff had already brought to the notice of the defendant that the plaintiff had not made any calls but because of the defects in the machine of the defendant, there was wrong recording of the calls alleged to have been made by the plaintiff. Thus, the plaintiff sought declaration that the bill issued by the defendant was illegal and improper and for prayer to recover the amount paid by the plaintiff under the bills.

(2.) THE suit was resisted by the defendants and it was stated that the plaintiff used to run Bharat Type Writing Institute and has used his telephone connection for making different calls and on the basis of the same, the plaintiff was issued with a bill for the aforesaid amount. It was stated that there was no defect in the machine of the defendant for the purpose of recording of the calls made by the plaintiff. Defendant also raised objection against maintainability of the suit in the civil court. The trial Court on appreciation of the evidence, allowed the suit of the plaintiff and passed decree holding the bill issued by the defendant as illegal and ordered for giving adjustment of the bill amount in the other bills raised against the plaintiff.

(3.) THIS appeal was admitted by order dated 26.3.1997 on the following substantial questions of law :