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2016 DIGILAW 244 (CAL)

Jajodia Estates Pvt. Ltd. v. Bhanu Pratap Gupta

2016-03-07

JYOTIRMAY BHATTACHARYA, SANKAR ACHARYYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This appeal will be heard. Records need not be called for. Service of notice of appeal upon the defendant/respondent nos. 2 & 3 is dispensed with as their presence is not necessary for disposal of the appeal. The appeal, thus, be treated ready as regards service so far as the respondent nos. 2 & 3 are concerned. 2. The plaintiff/respondent no. 1 and the defendant/respondent no. 4 are represented by their respective learned counsel. Hence, the appeal is ready as regards service. Re : CAN No. 10795 of 2015. 3. At the time when we took up the application for stay for our consideration, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this matter. We are also informed by the learned counsel appearing for the parties that all the papers which are necessary for disposal of the appeal on merit are annexed to the stay application. As such, the appeal can be decided on merit on the papers available before us. 4. Hence, we have decided to dispose of the appeal on the basis of the papers available before us. 5. Let us now consider the merit of the appeal in the facts of the present case. 6. The plaintiff filed a suit for a mandatory injunction for directing the defendant nos. 1, 2 & 3 and their men and agents to remove and/or break open the pad lock on the collapsible gate of meter room. Mandatory order of injunction has also been prayed for directing the police authorities of Posta police station to assist the men and agents of the defendant to install a new meter connection in the said meter room of the plaintiff. Permanent injunction has also been prayed for restraining the defendant nos. 1, 2 & 3 and their men and agents not to disturb and/or interfere with installation of new electric meter of the plaintiff at the time of carrying out the work by the men and agents of defendant no. 4 in respect of the said meter room in the ground floor of the said building. 7. 1, 2 & 3 and their men and agents not to disturb and/or interfere with installation of new electric meter of the plaintiff at the time of carrying out the work by the men and agents of defendant no. 4 in respect of the said meter room in the ground floor of the said building. 7. Such reliefs were claimed by the plaintiff on the basis of the allegation that the plaintiff is carrying on business in one shop room in the ground floor being room no. PG-7 at 23/1, Maharshi Devendra Road under the permissive possession of his brothers, namely, the defendant nos. 1 & 2. It is also alleged therein that since inception, the plaintiff was enjoying electricity in the said shop room through the sub-meter, allotted to his brothers by the landlord. It is, further, alleged that the defendant nos. 1 & 2 being the brothers of the plaintiff, in collusion with the landlord, namely, the defendant no. 3; disconnected the supply of electricity to the plaintiff's said shop room. Hence, he applied before the CESC authority for an independent electricity connection through a meter to be installed in the name of the plaintiff. Such prayer for giving electricity to the plaintiff having been allowed by the CESC authority, the installation charges have also been deposited by the plaintiff with the CESC and apprehending that obstruction will be made by the defendant nos. 1, 2 & 3 at the time of installation of the meter for effecting supply of electricity to the plaintiff in the suit shop room, the plaintiff filed the said suit seeking such relief. In such a suit, the plaintiff has filed an application seeking ad-interim mandatory injunction. By the impugned order, an ad-interim mandatory injunction was granted directing the District Engineer, CESC, Calcutta North District, to install electric meter with the help of Posta police station in the suit premises, subject to result of the suit till 16th November, 2015. The Officer-in-Charge of Posta police station was directed to render all kind of legal assistance, as may be required by the District Engineer, CESC, Calcutta North District, in installation of electric meter in the said premises. 8. The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this First Miscellaneous Appeal at the instance of the defendant no. 3. 9. Mr. 8. The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this First Miscellaneous Appeal at the instance of the defendant no. 3. 9. Mr. Chatterjee, learned advocate, appearing for the appellant challenges the legality of the said impugned order by submitting that though it is true that grant of mandatory injunction at an ad-interim stage is possible in exceptional circumstances, but still then this is not a fit case within such exception where the learned Trial Judge ought to have exercised such extra-ordinary jurisdiction by granting ad-interim mandatory injunction as the plaintiff was not without electricity and he was enjoying electricity in the said shop room on the day when such ad-interim mandatory injunction was passed. He, further, submits that ad-interim relief can only be granted in a suit in favour of a party when the condition of Order 39, Rule 3 is satisfied. According to Mr. Chatterjee, since the plaintiff was enjoying the electricity connection in the said premises, the learned Trial Judge ought not to have passed the impugned order without service of notice upon his client. 10. We agree with such contention of Mr. Chatterjee on principle. For ascertaining the correctness of submission of Mr. Chatterjee that the plaintiff was enjoying electricity in the said premises at the relevant time, we directed the CESC authority to hold an inspection on the site upon notice to the parties and submit a report indicating therein as to whether he was/is enjoying the electricity in the suit shop room. Pursuant to a direction passed by this Court as aforesaid, an inspection was held by the CESC authority upon notice to the parties. A report of such inspection has also been submitted by the District Engineer, CESC, Calcutta North District, through his learned counsel before us, wherein it is mentioned that there are 52 live meters in three number of services in the said premises. It was mentioned therein that in course of such inspection it was detected that a meter being no. 2404613 standing in the name of Sri Shashi Kant Jajodia of premises no. 23/1, Maharshi Debendra Road, Kolkata - 700007 from whom Bhanu Pratap Singh is getting electricity for his shop room and godown. It was mentioned therein that in course of such inspection it was detected that a meter being no. 2404613 standing in the name of Sri Shashi Kant Jajodia of premises no. 23/1, Maharshi Debendra Road, Kolkata - 700007 from whom Bhanu Pratap Singh is getting electricity for his shop room and godown. It was, further, mentioned therein that the defendant/appellant, Jajodia Estates Private Limited is issuing separate demand bills regularly in the name of Chandra Sekhar Gupta and Om Prakash Gupta for payment of electricity as per monthly consumption of Bhanu Pratap Singh being exclusively consumed/ used through a sub-meter being no. 37742 connected with the CESC meter no. 2404613. It was, further, mentioned therein that Mr. Bhanu Pratap Singh, plaintiff/respondent, has no separate meter to supply in his own name at 23/1, Maharshi Debendra Road, Kolkata - 700007. 11. Let a copy of the said report be kept with the record. 12. On perusal of the said report we find that the plaintiff was enjoying the electricity in the said room through a sub-meter which is connected with the meter of CESC. 13. Since the plaintiff was enjoying electricity in the suit shop room, we hold that the learned Trial Judge ought not to have passed ad-interim mandatory injunction in the said suit, as we hold that this is not such an urgent case where injunction could have been granted by dispensing with the requirement of service of notice under Order 39, Rule 3 of the Code of Civil Procedure. 14. As such, we set aside the impugned order passed by the learned Trial Judge and direct the plaintiff to serve a copy of the plaint as well as injunction application upon the defendants within a week. 15. Leave is granted to the defendants to file affidavit-in-opposition to the plaintiff's said application for mandatory injunction within two weeks from the date of receipt of service, reply, if any, be filed by the plaintiff within a week thereof. 16. The learned Trial Judge is directed to dispose of the plaintiff's application for mandatory injunction in accordance with law by the end of May, 2016. 16. The learned Trial Judge is directed to dispose of the plaintiff's application for mandatory injunction in accordance with law by the end of May, 2016. Till the disposal of the plaintiff's application for mandatory injunction, respondents are restrained from disconnecting and/or interfering with the service of electricity to the plaintiff's said shop room subject to payment of bill amount by the plaintiff with this rider that such service can only be withdrawn and/or suspended only if new connection is given to the plaintiff in his name. 17. The deposit which has already been made by the plaintiff with the CESC Limited for obtaining a new connection in the name of the plaintiff will be retained by the CESC Limited and such deposit will ultimately abide by the result of the plaintiff's application for mandatory injunction. 18. The appeal and the application filed in connection thereof are, thus, disposed of. 19. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties as expeditiously as possible.