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Himachal Pradesh High Court · body

2012 DIGILAW 979 (HP)

Sneh Lata Negi v. Om Parkash Rana

2012-12-14

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J (Oral). This petition under Article 227 of the Constitution of India has been filed for quashing order dated 1.12.2012 passed by learned Civil Judge (Jr. Division), Court No.(7), Shimla, H.P. in C.M.A. No.141-6 of 2012 in Civil Suit No.127-1 of 2011. 2. The facts in brief are that respondent No.1 has filed a suit for permanent prohibitory and mandatory injunction against petitioner and respondents No.2 to 4. In the suit the respondent No.1 has prayed prohibitory injunction against petitioner and respondents No.2 to 4, restraining them from disconnecting the electricity meter No.K.N.-1112100761 against account No.11121A20000013 of the premises in occupation of respondent No.1 in the top floor of Lipa House having accommodation of three shops, petitioner may be restrained from approaching the authorities for disconnection electricity supply and water connection available in the premises with mandatory injunction against petitioner and respondents No.2 to 4 to restore the electricity supply provided in the premises in occupation of respondent No.1, if it is found to be disconnected during the pendency of the suit and respondents No.2 to 4 may be directed to get the electricity meter under reference changed in the name of respondent No.1. 3. The respondents No.2 to 4 have contested the suit. In the suit respondent No.1 had filed an application under Order 39 Rules 1 and 2 CPC being Case No.127-6 of 2011 which was allowed by learned trial Court on 13.3.2012 and directed the respondents No.2 to 4 from disconnecting the electricity meter except according to procedure established in accordance with law. The petitioner was further restrained from approaching respondents No.2 to 4 for disconnection of electricity meter in the top floor of the building known as Lipa House till the disposal of the suit. 4. The petitioner filed appeal against the order dated 13.3.2012. The learned Additional District Judge on 30.10.2012 partly allowed the appeal, the order dated 13.3.2012 was partly set aside as far as it restrained the petitioner absolutely from approaching the respondents No.2 to 4 with respect to disconnection of electricity connection installed in the shop of petitioner, during pendency of the suit, even if there is gross misuse/tampering with electricity meter. Rest of the order dated 13.3.2012 was maintained. 5. Rest of the order dated 13.3.2012 was maintained. 5. It appears the petitioner moved an application dated 9.11.2012 before respondents No.3 and 4 stating therein that the stay order on disconnection of electricity meter No.K.N. 1112100761 has been vacated by learned Additional District Judge, Shimla. A request was made for disconnection of the electricity meter with immediate effect as the same has been installed in unauthorized manner and is also misused by respondent No.1 who is feeding four shops from one connection. 6. It appears on the application dated 9.11.2012 the electricity meter in the premises of respondent No.1 was disconnected on 12.11.2012. After disconnection of the electricity meter, respondent No.1 moved an application under Section 151 CPC before the learned trial Court, praying for enforcement of order dated 13.3.2012 against respondents No.2 to 4 with a direction to restore the electricity supply available in the top floor of the building known as Lipa House. This application was contested by respondents No.2 to 4 by filing reply. In the reply, it has been stated that respondent No.1 is misusing the electricity connection by supplying the same to other shops and therefore, the electricity meter has been disconnected. The learned Trial Court on 1.12.2012 allowed the application of respondent No.1 and directed the respondents No.2 to 4 to restore the electricity connection of suit premises within seven days. The order dated 1.12.2012 has been challenged by petitioner. 7. Heard the learned counsel for the parties and perused the record. The learned trial Court vide order dated 13.3.2012 has allowed the application of respondent No.1 and restrained respondents No.2 to 4 from disconnecting the electricity meter except according to procedure established by law. The petitioner was also restrained from approaching respondents No.2 to 4 to disconnect the electricity meter in question. The learned Additional District Judge on 30. 10.2012 while partly allowing the appeal against order dated 13.3.2012 had set aside that part of direction of the learned trial Court whereby the petitioner was restrained from approaching respondents No.2 to 4 for disconnection of electricity meter in the premises in question during the pendency of the suit, even if there is gross misuse/tampering with electricity meter. The rest of the order dated 13.3.2012 was affirmed. In other words, the respondents No.2 to 4 were restrained from disconnecting the electricity meter except following the due process of law. 8. The rest of the order dated 13.3.2012 was affirmed. In other words, the respondents No.2 to 4 were restrained from disconnecting the electricity meter except following the due process of law. 8. The petitioner filed an application before respondents 2 and 3 on 9.11.2012 and made a request for disconnection of the electricity meter in the premises in question on the ground that respondent No.1 is misusing the electricity connection installed in the premises by feeding four shops from one connection. On this application the electricity meter of the premises was disconnected on 12.11.2012. 9. It has been submitted by learned counsel for respondent No.1 that the learned trial Court had restrained respondents No.2 to 4 from disconnecting the electricity meter except following the due process of law. The respondents No.2 to 4 without following the process of law disconnected the electricity meter, therefore, the learned trial Court has rightly directed the restoration of the electricity meter vide impugned order dated 1.12.2012. The respondent No.1 after disconnection of the electricity meter on 12.11.2012 had moved an application for implementation of order dated 13.3.2012. 10. The learned Additional District Judge on 30.10.2012 has allowed the petitioner to approach respondents No.2 to 4 for disconnecting the electricity meter of respondent No.1, in case he is found misusing the electricity connection in the premises. The order dated 13.3.2012 after 30.10.2012 remained to the effect that respondents No.2 to 4 were restrained from disconnecting the electricity meter except according to the procedure of law. In other words respondents No.2 to 4 on the basis of order dated 13.3.2012 were very much within their right to proceed against respondent No.1 for disconnecting the electricity meter in accordance with law. 11. The petitioner approached respondents No.2 to 4 and brought to their notice that respondent No.1 was still misusing the electricity by supplying the same to four shops. On the basis of complaint of petitioner, the Board disconnected the electricity supply of respondent No.1 on 12.11.2012. The respondents No.2 to 4 were restrained from disconnecting the electricity supply except following the due process of law. The order dated 12.11.2012 has not been assailed by amended of plaint. 12. On the basis of complaint of petitioner, the Board disconnected the electricity supply of respondent No.1 on 12.11.2012. The respondents No.2 to 4 were restrained from disconnecting the electricity supply except following the due process of law. The order dated 12.11.2012 has not been assailed by amended of plaint. 12. The learned counsel for respondent No.1 has relied Ashwani Kumar and others vs. Lachi Ram and others AIR 2003 H.P. 28 on the point that in case a party in violation of the interim injunction, brings about any change in the position, situation and status of the property in suit, the Court in exercise of its inherent powers under Section 151 CPC can and must set the wrong right. There is no dispute to this proposition but the question is whether there was any injunction against respondents No.2 and 3 for not disconnecting the electricity supply in the premises of respondent No.1 even by following the due process of law. The plaint was not amended to challenge the order dated 12.11.2012. Once there was no challenge to the order dated 12.11.2012 then it could not be said that prima facie case was in favour of the petitioner regarding disconnection of electricity supply vide order dated 12.11.2012. In absence of prima facie case in favour of respondent No.1, it cannot be said that balance of connivance and irreparable loss were in favour of respondent No.1. The learned trial Court has erred in directing restoration of electricity supply of suit premises in absence of challenge to order dated 12.11.2012. In these circumstances order dated 1.12.2012 is liable to be set aside. 13. No other point has been urged. 14. In view of above, petition is allowed. The order dated 1.12.2012 is set aside. The parties through their counsel are directed to appear before the trial Court on 28.12.2012 In view of nature of dispute, the trial Court is directed to expedite the suit and decide the same at an early date. The record be sent back immediately so as to reach before the date fixed. The pending applications, are disposed of in view of the disposal of the main petition.