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2015 DIGILAW 824 (HP)

Tahir Khan v. Jai Dev Singh

2015-07-03

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India is directed against the order dated 21.4.2015 passed by the learned District Judge, Nahan, whereby he allowed the appeal of respondent No. 1/plaintiff No. 1 by setting aide the order passed by the trial Court and directed the respondents No. 1 to 3 to consider the application of the petitioner for release of temporary electricity connection in accordance with law and rules subject to the final decision of the main suit. 2. The case has a chequered history. The petitioner in the year 2002 filed a petition for eviction of respondent No. 1 from the shops situated at Gunughat Nahan, District Sirnmour. The respondent No. 1 had contested the same on the ground that the petitioner was not the landlord and the petition was dismissed by the learned Rent Controller on 31.12.2005. The appeal preferred against the same was also dismissed and the matter is now pending adjudication in revision before this Court. 3. In the year 2012, the tenants, who had been previously occupying the premises, namely, Rama Thakur and Abdul Khaliq applied for disconnection of the electricity connection/meter, which was in their names and the same was accordingly disconnected. 4. Respondent No. 1 aggrieved by the order of disconnection filed a petition under Section 11 of the Rent Control Act (for short `the Act') for restoration the amenities of electricity connection. The Rent Controller vide its order dated 3.12.2012 dismissed the petition on the ground that both the parties would have to lead evidence to come to the conclusion that the petitioner is in fact the landlord of the premises and further that he has wilfully disconnected the electricity supply. However, the respondent, later vide order dated 8.7.2013 withdrew this suit. 5. The respondent No. 1, thereafter filed another suit for restraining the petitioner from interfering in the grant of electricity connection, which was dismissed by the trial Court by observing that since there was no application moved by the applicant for grant of the electricity connection, therefore, the suit was not maintainable. This finding was assailed in appeal before the District Judge, who too dismissed the appeal vide judgment dated 4.10.2013. Eventually, even this suit was withdrawn on 21.10.2013. 6. This finding was assailed in appeal before the District Judge, who too dismissed the appeal vide judgment dated 4.10.2013. Eventually, even this suit was withdrawn on 21.10.2013. 6. The respondent No. 1, thereafter filed the present suit for declaration that he was entitled to electricity connection through defendants No. 1 and 2 i.e. the Electricity Board being the tenant/occupier of the shops with consequential relief of decree of mandatory injunction against the defendants No. 1 and 2 to grant electricity connection without insisting for NOC from the Municipal Council, Nahan. Along with the suit, an application under order 39 Rules 1 and 2 CPC was filed whereby a prayer was made to the effect that respondents No. 1 and 2 be ordered to grant electricity connection in the premises in question. 7. The trial Court dismissed the application. However, the appeal preferred against the same came to be allowed and that is now the matter has reached this Court in the present petition, wherein the petitioner has assailed the order passed by the Appellate Court. I have heard the learned counsel for the parties and gone through the record of the case. 8. Shri Ashok Tyagi, learned counsel for the petitioner has vehemently argued that the suit filed by the respondent No. 1 was itself not maintainable and ,therefore, no mandatory injunction could have been granted. He further contended that the suit was barred by the provision of Section 11, Order 2, Rule 2 and Order 23, Rule 1 of the Code of Civil Procedure and was further barred by Section 41(H) of the Specific Relief Act. 9. The submissions raised by the learned counsel for the petitioner appear to be attractive but deserve to be rejected for the simple reason that, insofar as, the proceedings before the Rent Controller Under Section 11 (3) of the Act are concerned, the same admittedly were not decided on merits and were dismissed as there were disputed question of fact. Insofar as, the earlier suit filed by the respondent No. 1 is concerned, even the trial Court while dismissing the application had observed that the electricity connection had though been wrongfully withdrawn, still the Court could not grant the desired relief because the respondent No. 1 had not complied for the same. Insofar as, the earlier suit filed by the respondent No. 1 is concerned, even the trial Court while dismissing the application had observed that the electricity connection had though been wrongfully withdrawn, still the Court could not grant the desired relief because the respondent No. 1 had not complied for the same. The relevant observation of the trial Court is reproduced as under: "For all these reasons, it is held that the applicant is, although, proved as well as admitted to be the tenant of the premises and his electricity connection has been wrongfully withdrawn, still the Court cannot grant the desired relief by way of this application, so long the applicant does not apply for an independent connection to the respondents No. 4 and 5." 10. When the matter was carried in appeal, the claim of the respondent No. 1 was again rejected only on the ground that he had not applied for the connection. Otherwise, even the appellate Court had found merit in his contention and had observed as under: ".There is no reasons to believe that if and when the appellant applies for installation of the electricity connection in the premises in his occupation after completion of all codal formalities in that case the respondents No. 4 and 5 would not deal with his application in accordance with law. In view of this, the learned court below has not committed any illegality or material irregularity by holding that the application filed by the applicant was premature." That apart the mere fact that there is a dispute inter se the petitioner and the co-owners of the property cannot be a ground to deny the basic amenity of electricity to the respondent No. 1 particularly when he is to pay for the same. 11. In view of the aforesaid discussion, I find no merit in this petition and the same is dismissed, leaving the parties to bear their costs. Pending applications, if any, also stands dismissed.