Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SAHIL KHURMI, CIVIL JUDGE-01
(CENTRAL), TIS HAZARI COURTS, DELHI
CS SCJ No. 382/23
KISHORE KUMAR ARORA
Vs.
BSES RAJDHANI POWERLTD.THROUGH ITS MANAGING
DIRECTOR
19.10.2023
At 4:00pm
ORDER
1. Vide this Order, I shall dispose off an application u/O 39 Rule 1 &
2 of CPC filed by plaintiff.
2. Brief facts of the present case, shorn off unnecessary details, as
culled out from the bare perusal of the pleadings of the parties are as
follows:-
2.1 Plaintiff has filed the present suit for permanent and mandatory
injunction with the averments that plaintiff is the co-tenant in the shop
bearing private No.302, Dariba Kalan, Delhi (hereinafter referred to as
suit property) under the tenancy of defendant No.2 along with other
LRs of late Sh. Mehtab Singh Jain. It is further stated that Sh. Mehtab
Singh Jain during his lifetime was the karta of H.U.F. and owned the suit
property i.e., 302, Dariba Kalan, Delhi. It is further stated that Sh.
Mehtab Singh Jain expired on 21.01.1998 at Delhi leaving behind his
legal heirs i.e., defendant No.2 along with other LRs and the said HUF
was not in existence after the death of Sh. Mehtab Singh Jain. It is
further stated that late Sh. Mehtab Singh Jain as Karta of his H.U.F. and
during his lifetime had let out a shop bearing No. 302, Dariba Kalan,
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Delhi to the plaintiff’s father i.e., late Sh. Tilak Raj in the year 1948 at a
monthly rent of Rs. 60/- per month and Sh. Tilak Raj was the tenant in
the aforesaid shop and was paying rent to late Sh. Mehtab Singh during
his lifetime. It is further stated that after the death of late Sh. Mehtab
Singh, the father of plaintiff started paying rent to the defendant No.2
and other LRs. It is further stated that now the rate of rent of the above
said tenanted premises is of Rs. 70/- and the defendant No.2 is not
accepting the rent from the plaintiff who is one of the legal heirs of late
Sh. Tilak Raj and also is one of the co-tenant in the tenanted premises
and is looking after the said tenanted premises.
2.2 It is further stated that the premises so let out to the plaintiff’s
father consists of shop with wooden plank on all its three sides and the
wall of the property No. 303, Dariba Kalan, Delhi on the fourth side i.e.,
on southern side. It is further stated that defendant No.2 and other LRs
have filed a suit for Prohibitory and Mandatory Injunction in the year
2006 against the plaintiff’s father i.e., Late Sh. Tilak Raj for restraining
the plaintiff’s father for making any addition, alteration or change in the
suit premises i.e., 302, Dariba Kalan, Delhi and further for removing the
iron sheets and to remove the electricity meter from the rear wall of the
suit property before the Ld. Civil Judge, Tis Hazari Courts, Delhi.
2.3 It is further stated that the said suit was contested by late Sh. Tilak
Raj during his lifetime and the suit was decreed in favour of defendant
No.2 and other LRs and thereafter father of the plaintiff had filed appeal
before the Ld. ASCJ, Central, Tis Hazari Courts, Delhi against the said
decree dated 02.08.2006, the said appeal was allowed and the said
decree was set aside vide Order dated 12.01.2018. It is further stated that
the father of the plaintiff was the tenant in the suit property since more
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than 60 years and on 08.10.2016, Sh. Tilak Raj/father of plaintiff was
expired and after the death of late Sh. Tilak Raj, the plaintiff came in to
possession of the tenanted premises and thereafter started paying rent to
defendant No.2 and other LRs. It is further stated that during the life
time of late Sh. Tilak Raj an electricity meter was installed in the back
side portion of the suit property vide CRN No.1110003965 and new K.
No.111011300221 in the name of late Sh. Tilak Raj but due to non
consumption of electricity meter, the defendant No.2 and his son
illegally removed the electricity meter with the connivance of defendant
No.1/BSES and as and when the plaintiff asked the BSES as to why they
had removed the said meter, they had replied to the plaintiff that the
meter was not in use, so we had removed it.
2.4 It is further stated that thereafter, the plaintiff had applied for new
connection in the year 2022 in the suit property after completing and
verification of the formalities and documents. It is further stated that
plaintiff also paid electricity bills/charges of the defendant No.1 of the
bills so raised by the BSES of the tenanted premises. It is further stated
that plaintiff came to know that the defendant No.1 had removed the
said new electricity connection in the month of November, 2022. It is
further stated that plaintiff was regularly making the payment of the bills
raised by the BSES as per the reading/consumption and there was no
occasion on behalf of defendant No.1 for removing the said connection.
2.5 It is further stated that the electricity connection which was
installed in the plaintiff is liable to be restored as without electricity
connection the plaintiff is not able to start the business from the tenanted
premises and the defendant No.2 just to harass the plaintiff had removed
the said electricity connection. It is in light of the aforesaid averments,
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plaintiff has filed the present suit with the following reliefs:-
(a) Decree of mandatory injunction thereby directing the
defendant No.1 to restore the electricity connection having
CA No. 153959611 which was illegally removed by the
defendants from the tenanted premises/suit premises i.e.,
shop with wooden plank on all its three sides and the wall of
the property No. 303, Dariba Kalan, Delhi on the forth side
i.e., on the southern side.
(b) Decree of permanent injunction, thereby restraining the
defendant No.2 and his legal heirs, authorised person or any
other person not to create any interference with respect to
the restoration of the electricity connection having CA
No.153959611 in the tenanted premises/suit premises i.e.,
shop with wooden plank on all its three sides and the wall of
the property No. 303, Dariba Kalan, Delhi on the forth side
i.e., on the southern side.
2.2 Per contra, it is the case of defendant No.1/BSES that plaintiff has
applied for sanction of new electricity connection in the capacity of
owner by chosing the type of premises as “Owned” and submitted a
GPA dated 15.04.2019 executed by Sh. Tilak Raj in his favour and
thereafter defendant installed the electricity connection bearing
No.153959611 in the name of the plaintiff on 19.10.2022.
2.3 It is further the case of defendant No.1 that the plaintiff is stating
himself to be a “co-tenant” in the suit property and therefore the
plaintiff has breached the undertaking given with Online New
connection service form mentioned in para-G, which is as follows:-
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“G. I agree and confirm that in case of any declaration
containing in the instant undertaking is found false at any later
occasion, the same shall be mutatis mutandis be termed as
breach of the agreement between BYPL and the deponent, and
BYPL shall be free to take all such action as permitted under
law including the same related to breach of terms of
agreement.”
2.4 It is further submitted that before installation of the said
electricity connection, the defendant received an objection dated
28.09.2022 from Santosh Kumar Jain, who is defendant No.2 in the
present suit, claiming himself to be one of the owners of the said
property.
3. Defendant No.2 has opposed the present application on the
ground that the plaintiff has not paid any rent of the suit property to him.
He has further disputed the GPA furnished by the plaintiff along with
online application form submitted to defendant No.1, which was
allegedly executed by the father of plaintiff to him. It is further
submitted by him that the present suit is not maintainable and the
plaintiff is not entitled to the reliefs claimed by him.
4. Plaintiff has filed the present application with the prayer that
defendant No.2, his legal heirs, authorised person or any other person be
restrained from creating any interference with respect to the restoration
of the electricity connection having CA No.153959611 in the tenanted
premises/suit premises i.e., Shop with wooden plank on all its three
sides and the wall of the property No. 303, Dariba Kalan, Delhi on the
forth side i.e., on the southern side till the disposal of the main suit.
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5. I have heard arguments of both the counsels on the present
application and I have carefully perused the record of the case.
6. At the very outset, it is important to refer the law governing the
grant of injunctions. In the case of “Gujrat Bottling Co. Ltd. v. Coca
Cola Co.” reported in [(1995) 5 SCC 545], the Hon'ble Supreme
Court, while discussing the factors to be considered by the Courts in
exercise of the discretion under Order XXXIX Rules 1 & 2 CPC, has
observed as follows:
“The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring the
exercise of discretion of the Court. While exercising the
discretion, the Court applies the following tests:
i. Whether the plaintiff has a prima facie case in his or her
favor;
ii. Whether the balance of convenience is in favour of the
plaintiff;
iii. Whether the plaintiff would suffer an irreparable injury if
his or her prayer for interlocutory injunction is disallowed.
The decision whether or not to grant an interlocutory
injunction has to be taken at a time when the existence of
the legal right assailed by the plaintiff and its alleged
violation, are both contested and uncertain and remain
uncertain till they are established at the trial on evidence.
Relief by way of interlocutory injunction is granted to
mitigate the risk of injustice to the plaintiff during the
period before that uncertainty could be resolved. The object
of the interlocutory injunction is to protect the plaintiff
against injury by violation of his right for which he could
not be adequately compensated in damages recoverable in
the action if the uncertainty were resolved in his favour at
the trial. The need for such protection has, however, to be
weighed against the corresponding need of the defendant to
be protected against injury resulting from his having been
prevented from exercising his own legal right for which he
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could not be adequately compensated. The court must weigh
one need against another and determine where the “balance
of convenience” lies. In order to protect the defendant while
granting an interlocutory injunction in his favour the Court
can require the plaintiff to furnish an undertaking so that the
defendant can be adequately compensated if the uncertainty
were resolved in his favour at the trial.”
7. In “Colgate Palmolive (India) Pvt. Vs. Hindustan Lever Ltd.”,
AIR 1999 SC 3105, the Hon'ble Supreme Court observed that the other
considerations which ought to weight with the Court hearing the
application or petition for the grant of injunctions are as below:
i)Extent of damages being an adequate remedy;
ii)Protect the plaintiff's interest for violation of his rights
though however having regard to the injury that may be
suffered by the defendants by reason thereof;
iii)The Court while dealing with the matter ought not to
ignore the factum of strength of one party's case being
stronger than the others;
iv)No fixed rules or notions ought to be had in the matter of
grant of injunction but on the facts and circumstances of
each case- the relief being kept flexible;
v)The issue is to be looked from the point of view as to
whether on refusal of the injunction the plaintiff would
suffer irreparable loss and injury keeping in view the
strength of the parties' case;
vi)Balance of convenience or inconvenience ought to be
considered as an important requirement even if there is a
serious question or prima facie case in support of the grant;
vii)Whether the grant or refusal of injunction will adversely
affect the interest of general public which can or cannot be
compensated otherwise.”
8. Coming to the merits of the present application, it is pertinent to
mention that the plaintiff has applied for new electricity connection in
the capacity of “Owner” of the suit property and a GPA dated
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15.04.2009 executed by the father of plaintiff in his name was furnished
by the plaintiff along with the said application for new connection. It is
uncontroverted that the present suit has been filed by the plaintiff in his
capacity of a “co-tenant” in the suit property. It is further pertinent to
mention that defendant No.1/BSES sent a notice dated 17.11.2022 and
the subsequent notice dated 01.12.2022 to the plaintiff through speed
post claiming that chain of the property as defendant No.2 has claimed
himself to be the owner of the suit property by filing objection with
defendant No.1. Perusal of above mentioned notices shows that the
same have been dispatched to the plaintiff on the address which was
himself furnished by the plaintiff as “communication address” in the
online new connection service form. No reply was given by plaintiff to
the said notices. It is also pertinent to mention that it is the case of
plaintiff himself that the suit property is under tenancy of defendant
No.2 along with other LRs of Late Sh. Mehtab Singh Jain and the father
of plaintiff was a tenant in the suit property and after the death of his
father the plaintiff is a co-tenant in the suit property. Thus, the GPA
furnished by the plaintiff with the defendant No.1 along with Online
New Connection Service Form seems to be prima facie doubtful. Thus,
it appears that plaintiff has not come to the Court with clean hands.
9. Thus, it is to be seen that plaintiff has failed to prove existence of
any prima facie case in his favour. Since, plaintiff has failed to prove the
existence of a prima facie case in his favour, this Court is not dwelling
into the question of the other two ingredients required to be proved by
the plaintiff to be entitled to a relief of temporary injunction.
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10. In view of the aforesaid discussions, the present application filed
by plaintiff is dismissed. Needless to say that nothing stated herein
above shall tantamount to any expressing opinion on merits of the case.
11. Present application stands disposed off.
Announced in the open Court
on this 19.10.2023.
(SAHIL KHURMI)
Civil Judge-1 (Central)
THC, Delhi
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