HARIKRISHNA AGARWALLA Vs. STATE OF ORISSA AND ANR.

JUDGEMENT

(1.) THE Plaintiff is the Appellant in this second appeal. He lost his suit in both the Courts below. He has filed the suit for a declaration that the Defendants have no right to disconnect the water supply to his premises and for a permanent injunction restraining them from exercising' such alleged right.

(2.) THE Plaintiff is a consumer of water supplied by the Public Health Department at Rourkela. Originally he was registered as consumer No. 20 in the books of the Public Health Department with effect from 18 -5 -1962. Subsequently in April, 1969 he was allotted consumer No. 480. Two water taps had been sanctioned for him and he was liable to pay at the rate of Rs. 4/ - for the first tap and Rs. 2/ - for the second tap. Thus he was being charged with water rent at the rate of Rs. 6/ - per month. Subsequently a meter was fixed and from January, 1963 he was charged at the rate of Rs. 19. 17 paise towards water consumption: From January, 1963 till May, 1965 he was charged with water rent at the rate of Rs. 201 - per month. Consequently having paid water rent at the rate of Rs. 20/ - per month he had paid an excess of Rs. 392/ - over the normal rate of Rs. 6/ - per month and: demanded refund of the amount, which is pending consideration' of the Public Health Department. The meter that was fixed in his premises was getting out of order from time to time. First it went out of order in April, 1962 and started working from January, 1963 till February, 1963 and then went out of order. Again It worked from May, 1965 till April, 1966 and thereafter failed to function. On 12 -5 -1969 a bill was sent to the Plaintiff for a sum of Rs. 1,677.51 as water rent for the period from May, 1966 to April, 1969 which had been computed on the basis of average meter reading for six months preceding May, 1966. The Plaintiff disputed this demand contending that the meter' was not working properly and was giving faulty reading, and made representation to that effect. Without properly dealing with his representation, the Assistant Engineer, P.H.D. sent the) aforesaid bill on 12 -5 -1969 threatening to cut off water supply connection if the bill amount was not paid within seven days of the notice. He, therefore, filed the present suit for the aforesaid reliefs.

(3.) THE Plaintiff, however, did nor examine himself nor any other witness on his side. On behalf of the Defendants only the Sub -Divisional Officer. Public Health Department was examined as d.w. 1. Some documents were filed by both sides. Both the Courts below dismissed the suit. The plea of the Plaintiff has been discarded mainly on the ground that he did not choose to examine himself and make a statement in support of his plea on oath. The onus was clearly on the Plaintiff to prove his case, which he has manifestly failed to discharge. On the sale ground that the Plaintiff has failed to examine himself and prove his case he is bound to be non -suited, specially when factual pleas of the Plaintiff are not admitted by the Defendants. Faced with this dilemma the Plaintiff -Appellant has now filed an application under Order 23, Rule 1, Code of Civil Procedure for permission to withdraw his suit with liberty to institute a fresh suit in respect of the same subject -matter. This application has been strongly resisted by the Respondents.