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2020 DIGILAW 959 (KAR)

B. S. Susheela Devi v. A. Ashraf Ali

2020-06-03

JYOTI MULIMANI

body2020
JUDGMENT Jyoti Mulimani, J. - Petitioner-Plaintiff has filed the present writ petition invoking the writ jurisdiction of this Court assailing the order dated 09.02.2018 passed on the interlocutory application in O.S.No.5536/2013 by the Principal City Civil and Sessions Judge, Bengaluru, vide Annexure A, whereby the application filed under Section 151 of the Code of Civil Procedure, 1908, for a direction to the defendant to restore water charges has been dismissed. 2. It is the case of the petitioner-plaintiff that she is the landlady of the suit schedule property bearing Municipal No.41, Brigade Road, Corporation Ward No.76, Bangalore-560001. There is a water connection pertaining to the schedule property and the consumer ID Number is 8959, RR No.SE119311/ND2-139. There is an agreement of lease which has been entered into between petitioner-plaintiff and respondentdefendant on 24.09.2005 in respect of ground floor of schedule shop premises. As per clause 3 (b) of the Lease Deed, it is the duty of the lessee to pay the electricity and water dues in respect of the schedule property. The Lease Deed is produced at Annexure-B. As the respondent-defendant has defaulted in making payment of rents, petitioner-plaintiff has filed a suit for ejectment against the respondent-defendant. Respondent-defendant has contested the suit by filing objections. 3. Smt.Sunitha Singh, learned counsel for petitionerplaintiff submits that respondent is a defaulter in paying the water charges and on account of which, the water board i.e., BWSSB has disconnected the water connection in respect of RR No. SE119311/ND2-139 pertaining to the schedule property. Therefore, petitioner-plaintiff was constrained to move an application under Section 151 of the Code of Civil Procedure, 1908 seeking direction to the respondent to restore water connection. Respondent filed objections to the said application. The trial court dismissed the said application on 09.02.2018. Learned counsel for petitioner-plaintiff submits that the trial court has totally erred in dismissing the application. The trial court has not taken into consideration that petitioner-plaintiff being a landlady has spent considerable amount to procure the water connection and the disconnection has occurred on account of respondentdefendant not paying the water charges. Learned counsel for petitioner-plaintiff submits that the trial court has totally erred in dismissing the application. The trial court has not taken into consideration that petitioner-plaintiff being a landlady has spent considerable amount to procure the water connection and the disconnection has occurred on account of respondentdefendant not paying the water charges. She further invited the attention of this Court to clause 3 (b) of the Lease Deed, which reads as under:- "3(b) The lessee shall pay the electricity and water dues in respect of the schedule property and shall keep the lessor effectually indemnified against any claims in this connections occasioned by any default or violation of the conditions of use thereof. Without prejudice thereto, he shall be at liberty to procure any additional power and water supply connections at his cost and in his name." Therefore, she submits that it is the duty of respondent-defendant to maintain the property during his occupation. But the trial Court without noticing the contents of the Lease Deed, has come to the wrong conclusion that it is the duty of petitioner-plaintiff to make an application before the concerned authority to restore the water connection, which is against the clauses and understanding of the Lease Deed entered into between the parties. A further submission was made that the trial Court has wrongly come to the conclusion that the petitionerplaintiff has a right only to collect the water charges from respondent-defendant. She has also urged that the trial court has failed to consider the documents such as the Bill issued by the BWSSB. In the said bill, it was mentioned that there was due of arrears of Rs.69,380/- (Rupees Sixty Nine Thousand Three Hundred and Eighty only) inclusive of interest, which is self-sufficient to show that respondent was in arrears of water charges. Further, respondent-defendant has admitted in his objections that he is ready to deposit the said amount. Hence, petitioner-plaintiff is entitled to seek a direction to the respondent-defendant to restore water connection. Lastly, learned counsel submits that viewed from any angle, the order made by the trial Court is opposed to law, facts and probabilities and circumstances of the case. Thus, she prays for allowing of the writ petition. 4. I have heard the learned counsel for the petitioner. I have carefully perused the petition papers. 5. Lastly, learned counsel submits that viewed from any angle, the order made by the trial Court is opposed to law, facts and probabilities and circumstances of the case. Thus, she prays for allowing of the writ petition. 4. I have heard the learned counsel for the petitioner. I have carefully perused the petition papers. 5. The petitioner plaintiff being the landlady has initiated action against respondent-defendant for ejectment alleging that he was a chronic defaulter in payment of rents. Petitioner-plaintiff has also urged that respondent-defendant has not paid the water charges and therefore the BWSSB has disconnected the water supply. It is noticed that petitioner-plaintiff has moved an application under section 151 of CPC seeking a direction to the respondent-defendant to restore the water connection. Petitioner-plaintiff has stated that as on 26.10.2016, respondent-defendant is due in a sum of Rs. 69,380/- (Rupees Sixty Nine Thousand Three Hundred and Eighty only) inclusive of interest thereon. Respondent-defendant has filed objections to the said application. 6. In order to show his boanafides, respondentdefendant had sworn to an affidavit and has undertaken to deposit a sum of Rs.69,380/- (Rupees Sixty Nine Thousand Three Hundred and Eighty only) on or before 27.04.2017 without prejudice to his rights. Respondent-defendant has also stated that after fullfledged trial, in case, the trial Court comes to the conclusion that he is bound by clauses of the agreement even without enjoying the said amenities; the amount deposited may be released in favour of plaintiff. 7. The trial Court, while passing the order on the application has taken into consideration all the relevant contentions put forth by the parties. While answering Point No.1, it has observed that on perusal of order sheet, it reveals that on 29.5.2017, defendant has to deposit a sum of Rs.69,380/- (Rupees Sixty Nine Thousand Three Hundred and Eighty only) and that defendant has also undertaken to deposit the amount before the Court. Accordingly, defendant has deposited the said amount on 29.5.2017. Thus, the trial court has held that it is the duty of plaintiff to collect water charges from the concerned tenant and deposit the same to BWSSB. 8. The controversy is related to water disconnection. Access to water is a reality in all Indian States today. Water services are providing safe and clean water to citizens. These services have a cost that is covered by the water bill. 8. The controversy is related to water disconnection. Access to water is a reality in all Indian States today. Water services are providing safe and clean water to citizens. These services have a cost that is covered by the water bill. Disconnection generally happens if the consumers do not pay their bills and it lasts until the consumer has paid his/her dues. If the water connection is disconnected, the consumer will normally have to pay the water charges, arrears (if any) towards their account or at least agree to a payment plan for the provider to reconnect. 9. In the instant case, the dispute revolves around the water disconnection and as could be seen from the rival contentions, the reason for disconnection by the provider is non-payment of water charges by the consumer. If, petitioner-plaintiff is having difficulty in paying the bill amount and facing disconnection, she can very well contact her provider and ask about her customer assistance and seek reconnection. Instead of doing so, petitioner-plaintiff is seeking direction to defendant who is a lessee /tenant to restore water connection. 10. The trial Court while dismissing the application has held that petitioner-plaintiff has not produced any material to show that the BWSSB has issued a notice of disconnection and has disconnected the water supply to the suit schedule property. The xerox bills only shows the arrears of bill charges. Thus, the trial court has held that without producing the materials, plaintiff cannot seek direction to defendant to restore water connection. 11. In my considered opinion, the trial Court is justified in holding that petitioner-plaintiff has only right to collect the water charges from defendant. When defendant has already deposited the amount, it is the duty of the owner of premises to take necessary steps for restoration of the water connection. Therefore, the trial court is justified in coming to the conclusion that, in the absence of relevant materials, petitioner-plaintiff cannot seek for a direction to the defendant to restore water connection. 12. I find no error or illegality to exercise supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.