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2017 DIGILAW 1298 (GAU)

Sanjay Kumar Jain v. Justice (Rtd. ) Dr. T. N. Singh

2017-09-15

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. O.P. Bhati, learned counsel appearing on behalf of the petitioners and Mr. B. Borah, learned counsel appearing on behalf of the respondent Nos. 1, 2, 3 and 5. 2. In this revision application, order dated 21.7.2017 passed by the learned Munsiff No. 1, Kamrup (M) at Guwahati in an application bearing No. 2459 in Misc. (J) Case No. 205/2017 arising out of Title Suit No. 132/2017 is challenged. 3. The present petitioners are the tenants under the respondents with respect to 3 shop premises. On 3.6.2017 and 7.6.2017 it is submitted by the petitioners that the electricity supply to the said tenanted premises were disconnected by the respondents-landlords. Thereafter, title suit No. 132/2017 was filed by the present petitioners as the plaintiffs for declaration that during the subsistence of the tenancy and regular payment of electricity dues, the defendant-respondents have no right to disconnect the supply of electricity to the tenanted premises and a mandatory injunction directing the defendant-respondents to restore the electricity connection so disconnected on 3.6.2017 and on 7.6.2017 to the tenanted premises and also for a permanent injunction restraining the defendant-respondents from disconnecting the electricity after its restoration. Along with the said suit, an application under order XXXIX, rules 1 and 2 of the CPC was also preferred for an ad-interim temporary mandatory injunction directing the defendant-respondents to restore the electricity. The said application under order XXXIX, rules 1 and 2 of the CPC was registered as Misc. (J) Case No. 205/2017. Upon motion of the said petition under order XXXIX, rules 1 and 2 of the CPC, the learned trial court was satisfied to pass an order of ad-interim temporary mandatory injunction directing the present defendant-respondents to restore the electricity connection to the tenanted premises, i.e., the shop room Nos. 2, 3 and 9. The said order was passed on 13.6.2017. Summons along with the notice of Misc. (J) Case No. 205/2017 were served upon the defendant-respondents. Even thereafter the defendant-respondents failed to restore the electricity connection to the tenanted premises. The present petitioners thereafter preferred an application No. 2459 under section 151 of the CPC for enforcement of the said order of ad-interim temporary mandatory injunction with the assistance of the civil Nazir of the said court thereby restoring the electricity connection with the help of electrician to the tenanted premises by taking police help from the concerned police station. The present petitioners thereafter preferred an application No. 2459 under section 151 of the CPC for enforcement of the said order of ad-interim temporary mandatory injunction with the assistance of the civil Nazir of the said court thereby restoring the electricity connection with the help of electrician to the tenanted premises by taking police help from the concerned police station. 4. The present defendant-respondent No. 2 filed his written objection. It would not be out of place to mention that the petitioners owing to non-compliance of the order of restoration of electricity had also preferred an application under order XXXIX, rule 2A of the CPC alleging violation of the said order dated 13.6.2017 which is pending adjudication. The defendant-respondent No. 2 in his written objection took the plea that as the violation petition is also pending, in such a situation, this application under section 151 of the CPC ought not to be considered by the court below as the same would vex the respondents twice for the same action. The restoration of the electricity is subjudice owing to filing of various applications by the present petitioners. Further, it was raised before the court below that the present petitioners are defaulters in respect of payment of rent, maintenance charges and electricity charges in respect of the suit premises for which they are liable to be evicted. As per the tenancy agreement, non-payment of electricity charges would automatically lead to disconnection of the electricity connection to the tenanted premises. It is the submission of the defendant-respondent No. 2 that the present petitioners violated the terms of the tenancy agreement by making construction therein and by using generator set for electricity supply to the tenanted premises and as such the said Petition No. 2459 under section 151 of the CPC for enforcement of the order dated 13.6.2017 with the police assistance ought not to be allowed. The learned court below refused to entertain the said prayer made in the application under section 151 of the CPC on the ground that as there is specific provision under the Assam Urban Areas Rent Control Act, 1972, and as such, invocation of the jurisdiction under section 151 of the CPC does not arise at all. The learned court below refused to entertain the said prayer made in the application under section 151 of the CPC on the ground that as there is specific provision under the Assam Urban Areas Rent Control Act, 1972, and as such, invocation of the jurisdiction under section 151 of the CPC does not arise at all. However, the option was given to the present petitioners in the event of non restoration of the electricity supply to the tenanted premises, the petitioners are entitled to restore the electricity connection to the tenanted premises at their own cost which is to be adjusted with rent payable to the landlord, i.e., the present defendant-respondents. Being aggrieved against the rejection of the application under section 151 of the CPC, the present petitioners have filed this application challenging the order. 5. Mr. Bhati, learned counsel for the petitioners, submits that the learned court below failed to invoke the jurisdiction under section 151 of the CPC under wrong notion that owing to specific provision under sections 6 and 7 of the Assam Urban Areas Rent Control Act, 1972 (‘the Act’), the said jurisdiction under section 151 of the CPC could not be invoked. He submits that there is no bar in invoking the jurisdiction under section 151 of the CPC for enforcement of an order of injunction by taking necessary help from the police. In order to buttress his submission, Mr. Bhati has relied on the case of Delhi Development Authority v. Skipper Construction Company (P.) Ltd., (1996) 4 SCC 622 . 6. Mr. Borah, learned counsel for the respondents, on the other hand, raised his objection against the submissions made by Mr. Bhati. It is submitted that the present petitioners subsequent to the filing of this present petition had again preferred an application for enforcement of the said injunction order which was granted by the court below vide order dated 25.8.2017 thereby giving liberty to the present petitioners to restore the electricity connection to the tenanted premises by themselves at their own cost in terms of order dated 21.7.2017 and in the event of any obstruction in that process necessitating help from police authorities, the instant petition would be considered at the appropriate stage. Pointing to the liberty granted to the present petitioners, Mr. Borah submits that this revision has become infructuous. Countering the submissions of Mr. Borah, Mr. Pointing to the liberty granted to the present petitioners, Mr. Borah submits that this revision has become infructuous. Countering the submissions of Mr. Borah, Mr. Bhati submits that this application has not become infructuous inasmuch as it is the question raised before this court with respect to the invocation of jurisdiction under section 151 of the CPC which the learned court below rejected without any basis. 7. Considered the submissions of both the learned counsels. The hon'ble Supreme Court in Skipper Construction Company (P.) Ltd. (supra) a full bench decision of the Madras High Court was accepted wherein it was specifically held that inherent power of the court is not only available in a case like the present one but it is bound to be exercised to undo the wrong in the interest of justice. Again upholding the decision of a Division Bench of Calcutta High Court, the hon'ble Apex Court held that no technicality can prevent the court from doing justice in exercise of its inherent powers. Further, the reasons for such exercise of inherent jurisdiction as laid down in the said decision by the Apex Court is that before an order is passed by a court/the court definitely is satisfied that the case warrants passing of an order of injunction and it is the duty of the court to enforce its full implementation. Considering the ratio laid down by the Apex Court, this court finds that the findings of the learned court below that owing to existence of sections 6 and 7 of the Act, the learned court below cannot exercise the jurisdiction under section 151 of the CPC is wrong. The court below while passing the order of ad-interim temporary mandatory injunction was satisfied that the situation before the court warrants passing of such direction to the defendant-respondents. Failure on the part of the court to give effect of such direction would result in branding the said order a mere paper work having no force to undo the wrong perpetrated by the wrong doer on the person already effected. For the said reason the order dated 13.6.2017 passed in Misc. (J) Case No. 205/2017 arising out of Title Suit No. 132/2017 needs its full implementation. Accordingly, the order dated 21.7.2017 passed while disposing the Petition No. 2459 in Misc. For the said reason the order dated 13.6.2017 passed in Misc. (J) Case No. 205/2017 arising out of Title Suit No. 132/2017 needs its full implementation. Accordingly, the order dated 21.7.2017 passed while disposing the Petition No. 2459 in Misc. (J) Case No. 205/2017 is set aside with a direction to hear the matter afresh and to give findings as per the observations of this court. 8. Accordingly, this revision petition stands disposed. 9. Interim order, if any, shall stand automatically vacated.