Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: 31Civ Suit827/23SUSHILA DEVI Vs. BSES Yamuna Power Ltd.
20.05.2024
Present: Sh. Ram Kishan, Ld. counsel for the plaintiff.
Sh. Rajesh Kumar Sharma, Ld. counsel for the defendant no.1.
Defendant no. 2 is already ex-parte.
Put up for orders at 04:00 P.M.
(VINOD JOSHI)
ACJ-cum-CCJ-cum-ARC (East)
KKD Courts, Delhi/20.05.2024
At 04:00 P.M
Present: None.
1. Vide this order, I shall dispose off an application of the plaintiff
under Order 39 Rule 1 and 2 CPC.
2. Briefly stated, the case of the plaintiff is as follows:-
The plaintiff is the owner of the property bearing no. B1130,
Third floor, Gharoli Diary Farm, Mayur Vihar, PhaseIII, Delhi (suit property).
The plantiff has applied for electricity connection with the defendant no.1 at
four instances i.e on 31.10.2019, 22.04.2021, 06.10.2021 and 24.03.2022,
however, the same were rejected by the defendant no.1 and the plaintiff was
told that electricity meter has already been issued/installed at the third floor in
the name of Deepa Devi I.e defendant no. 2, who is the resident of fourth floor
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in the suit property. The plaintiff seeks mandatory injunction for installation of
electricity meter and in the present application plaintiff has sought the same
relief.
3. The defendant no.1 has submitted as follows:
Five electricity connections have already been installed in the suit
property, which comprises of ground plus five floors. Although the defendant
no.2 Deepa Devi is the resident of fourth floor, however, the billing address of
the electricity meter of Deepa Devi is shown to be at third floor, wherein the
plaintiff resides. The discrepancy in the billing address of Deepa Devi could
not be rectified as there is another meter installed in the name of Ms. Sonia
Dogra at the fourth floor, who is resident of fifth floor. Further, Ms. Sonia
Dogra could not produce any documents with regard to ownership of fifth floor
and the building has been illegally extended by the residents. Even if, the
defendant no.1 were to correct the discrepancies in the addresses, a fresh
electricity meter cannot installed at the third floor in the name of plaintiff for
the reason that the objection list from MCD was received vide a letter bearing
no. EE (B)I & II/SHS/202021/D1436, on 16.11.2020 by the defendant no.1
and as per the letter, unauthorized construction have been found by MCD at
ground floor, first floor, second floor, third floor and fourth floor. In view of
the same, the defendant no.1 cannot install the electricity connection unless
and NOC from MCD is issued in respect of the property in compliance with
regulation 10 of DERC (Supply Code and Performance Standards)
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Regulations, 2017. The electricity connection already existing at various floors
of the suit property were installed prior to receipt of MCD’s objection list. The
defendant no.1 has relied on order of Hon’ble High Court of Delhi in
”Parivartan Foundation vs South Delhi Municipal Corporation & Ors”.
4. Submissions have already been heard. Record perused.
5. The plaintiff has sought interim mandatory injunction vide the
present application. It is a settled proposition of law that the relief of interim
mandatory injunction is to be granted in rare and exceptional cases. Reliance is
placed upon the judgment of the Hon’ble Supreme Court of India, in the case
titled as “Hammad Ahmed vs. Abdul Majeed & Ors.”, decided on 03.03.2019,
wherein it has been held :
57. The ad interim mandatory injunction, is to be granted not at
the asking but on strong circumstance so that to protect the rights and interest
of the parties so as not to frustrate their rights regarding mandatory
injunction. In Deoraj vs. State of Maharashtra and Others this Court held that
Court would grant such an interim relief only if it is satisfied that withholding
of it would prick the conscience of the Court and do violence to the sense of
justice, resulting in injustice being perpetuated throughout the hearing, and at
the end the Court would not be able to vindicate the cause of justice.
Therefore, in appropriate case, ad-interim injunction in mandatory form can
be granted. The Court held as under:- “12. Situations emerge where the
granting of an interim relief would tantamount to granting the final relief
itself. And then there may be converse cases where withholding of an interim
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relief would tantamount to dismissal of the main petition itself; for, by the time
the main matter comes up for hearing there would be nothing left to be
allowed as relief to the petitioner though all the findings may be in his favour.
In such cases the availability of a very strong prima facie case — of a standard
much higher than just prima facie case, the considerations of balance of
convenience and irreparable injury forcefully tilting the balance of the case
totally in favour of the applicant may persuade the court to grant an interim
relief though it amounts to granting the final relief itself. Of course, such
would be rare and exceptional cases. The court would grant such an interim
relief only if satisfied that withholding of it would prick the conscience of the
court and do violence to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the court would not be able
to vindicate the cause of justice. Obviously such would be rare cases
accompanied by compelling circumstances, where the injury complained of is
immediate and pressing and would cause extreme hardship. The conduct of the
parties shall also have to be seen and the court may put the parties on such
terms as may be prudent.”
6. The suit property of the plaintiff has already been included in the
objection list of the MCD for having unauthorized construction and the
defendant no.1 has valid reasons for non issuance of electricity connection as
per the requirement of law and regulations in this regard. There is no prima
facie case in favour of the plaintiff. Further, the actions of the defendant no.1
are well within the regulations issued in respect of installation of new
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electricity connections and hence, the balance of convenience also lies in
favour of the defendant no.1. The plaintiff cannot insist upon issuance of
electricity connection, once the property itself has been constructed contrary to
the rules and regulations of MCD. Moreover, the relief sought by the plaintiff
in the present application is similar to the final relief sought in the present suit
and allowing the present application would itself tantamount to granting of
final relief, without granting the parties to present evidence upon the merits of
the case. The application is accordingly dismissed. Nothing expressed herein
shall be expression upon the merits of the case.
7. It is further noticed that although the defendant no.1 has admitted
that there are discrepancies in the issuance of electricity connections in the suit
property due to wrong addresses and non furnishing of ownership documents,
however, the defendant no.1 has not clarified as to what action has been taken
in respect of the same. Defendant no.1 itself has stated that there is
unauthorized construction in the suit property, however, it is also not explained
as to why no remedial steps have been taken till date. Accordingly, defendant
no.1 is directed to file status report in respect of action taken by it on the next
date of hearing.
Put up for PE and filing of status report on 22.08.2024.
(VINOD JOSHI)
ACJ-cum-CCJ-cum-ARC (East)
KKD Courts, Delhi/20.05.2024
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