Suit for permanent injunction filed against order of assessment held not maintainable.

1. The unsuccessful defendant is the appellant herein. The plaintiff filed a suit for permanent injunction. The plaintiff is the owner of Sangam Theatre at Thiruvarur. The electricity service connection No. 220 was given to the Theatre and the permitted work load was only 18. Kilo Watt. She has been paying the electricity charges regularly. On 12. 1983, some of the officials of the Electricity Department came to the Theatre for inspection and obtained some Statement from some person in the Theatre as if the electricity was used to the extent of 29. Kilo Watt and the work load was more than the permitted load. The inspector as well as the subsequent accounting is not proper and correct. The plaintiff sent a communication to inspect the Theatre again. But it was not carried out. Further a communication was sent to the plaintiff calling upon her deposit a sum of Rs, 2, 985 representing half of the provisional assessment within a period of 15 days failing which the service connection would be cut of. The communication sent by the department is arbitrary and no opportunity was also given to the plaintiff and hence the suit.

2. The defendant slated that the permitted load of the plaintiff’s Theatre was only 8. Kilo Watt. On 12. 1983, the squad inspected the Theatre and came to know that they have got a load of 29. Kilo Watt. One Ramesh said to be the manager of the Theatre was there and the statement of the said Manager was also recorded. On 14. 1984, the plaintiff sent a letter containing wrong facts. The department has found out that the Theatre had used more load than sanctioned by the department. The Electricity d epartment had also sustained loss and a provisional assessment was made calling upon the plaintiff to pay the sum as otherwise electricity supply will be out of. Moreover, the plaintiff ought to have come forward with the suit for declaration if really he is aggrieved about the provisional assessment. The suit for permanent injunction alone is not sustainable under law.

3. The trial court framed four issues and on behalf of the plaintiff, P.Ws. 1 and 2 were examined and Exhibit A.1 was marked and on behalf of the defendant, D.W. 1 and 2 were examined and Exhibits B1 and B2 were marked. The trail Court dismissed the suit filed by the plaintiff and aggrieved against this, the plaintiff filed A.S.No. 40 of 1985 on the file of Nagapattinam and the lower appellate court allowed the appeal setting aside the judgment and decree of the trial court and the suit was decreed granting the relief of permanent injunction. Aggrieved against this, the defendant has come forward with the present second appeal.

4. The defendant/appellant has raised the following questions of law:

(1) Whether the lower appellate Court is correct in law in holding that inspite of admission made in Ex.B1 the burden to prove that there was an additional unauthorised load during inspection is on the board?

.(2) Whether the Court below is correct in law in granting permanent injunction restraining the board to proceed further with a provisional assessment notice usual as per the terms and conditions of supply?

5. The points that arise for consideration are as follows:

.(1) Whether the plaintiff is entitled to the relief of permanent injunction?

.(2) Whether the suit filed by the plaintiff is maintainable under law?

6. There is no dispute that the plaintiff is the owner of Sangam Theatre at Thiruvarur and Service Connection No. 220 was also given to the Theatre by the Electricity Board. It was also not in dispute that the permitted power load was only 18. K.W. On 12. 1983, D.W.1 and other officials made a surprise check in the Theatre in question and they found out that they have used the power load to the extent of 29. K.W. without any authority or sanction. Ramesh, said to be the Manager was present at that time and the statement was also taken from him under Exhibit B1. The husband of the plaintiff was examined as P.W.1 and the Ca