Delhi District Court
By This Judgment vs Xliii Read With Sub Rule (R) Of The Code Of ... on 15 October, 2020
IN THE COURT OF SHRI SANJEEV KUMAR-II, ADDITIONAL
DISTRICT JUDGE, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
MCA DJ/1/2020
Rajni
W/o Surender
R/o L-1-113/4, First Floor (Barsati),
Shani Bazar Road, Sangam Vihar,
New Delhi
v.
1. Ram Parkash
S/o late Shri Ram Swaroop
2. Long Shree
W/o Shree Ram Prakash
both Resident of
L-1-113/4, Ground Floor,
Shani Bazar Road, Sangam Vihar,
New Delhi.
3. BSES Rajdhani Power Limited,
O/o Division Office South Khanpur,
New Delhi.
Date reserved for judgment :21.09.2020
Date of pronouncement of judgment :15.10.2020.
JUDGMENT
1. By this judgment, I shall decide the appeal preferred on behalf of the appellant-plaintiff against the respondents-defendants under Order XLIII read with Sub Rule (R) of the Code of Civil Procedure, 1908 MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 1 (hereinafter referred to as 'CPC') against the order dated 07.01.2020 passed by the learned ASCJ-cum JSCC-cum GJ, South District, Saket Courts, New Delhi in CS No. 1218/2019 titled as 'Rajni v. Ram Prakash & Ors.' whereby application under Order XXXIX Rules 1 & 2 CPC filed on behalf of the appellant for grant of ex-parte interim injunction was dismissed.
2. Reply on behalf of the respondent No.1 has been filed to the appeal. The written submissions has been filed on behalf of the respondent no. 3.
3. Mr. Vinay Sharma, learned counsel appearing for the appellant has submitted that appellant is daughter-in-law of the respondents no. 1 and 2 because she got married with the son of the respondents no. 1 and 2 on 29.04.2000 and since then she is residing at the address L-1-113/4, Shani Bazar Road, Sangam Vihar, New Delhi and thereafter in the year of 2006 she was shifted to the First Floor i.e. Barasati of the said address (herein after referred to as 'suit property'). The respondent no. 1 has filed one collusive suit in collusion with the husband of appellant just to throw out her from the suit property. On 06.11.2019, during pendency of said suit, respondent no. 1 had disconnected the supply of electricity of the MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 2 applellant just to harass her and her children. Appellant approached the respondent and requested to restore the electricity supply in the suit property and she is ready to pay for the electricity charges of her share. She also requested to give permission to install new electricity connection but they declined for the same. She approached the respondent no. 3 for installation of new electricity connection in the suit property but the respondent no. 1 did not allow the respondent no. 3 to install new electricity meter and the respondent no. 3 rejected her application on 19.11.2019. Learned trial court failed to appreciate that the electricity is the basic amenities and appellant being daughter-in-law of respondents no. 1 and 2 have right to reside in the said premises with the dignity. She and her children can not be expected to live without said essential services. Applellant wants that her electricity connection may be restored. He has relied upon the judgments i.e. Madan Lal v. State of Himachal Pradesh having, CWP No.2454 of 2018 decided on 22.10.2018 by the Hon'ble High Court of Himachal Pradesh; Molay Kumar Acharya v. Chairman-cum-Managing, AIR 2008 Calcutta 47; Mohd. Farooq Khan v. Zubeda Khatoon & Ors., FAO (OS) No. 293/2012 decided on 22.03.2013 by the Hon'ble Delhi High Court.
4. On the other hand, Mr. R. N. Singh and Ms. Budhimati Jha learned counsel for respondents no. 1 and 2 have opposed appeal stating that they MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 3 have already filed suit against appellant herein. There are same prayer in the suit of appellant and injunction application. Illegal tresspasser can not seek electricity connection. Appellant had aready filed an application for injunction but same was dismised on 18.12.2019 by Shri Dharmender Singh learned CCJ Cum RC , South , Saket Courts and thereafter, suit for permanent and mandatory injunction has been filed by the appellant in which interim injunction application was also dismissed vide impugned order dated 07.01.2020 against which present appeal has been preferred by the appellant. Suit of the appellant is barred by res-judicata. Appellant should have file appeal against the said order dated 18.12.2019 but same has not been filed. The appellant should have file application for maintenance against her husband under the provisions of the Protection of Women from Domestic Violence Act, 2015 (in short 'DV Act'). Appellant has no ownership right in the suit property. Learned trial court had dismissed interim injunction application by reasoned order and therefore, appeal may be dismissed. Learned counsel have referred judgments i.e. State of Uttar Pradesh v. Ram Sukhi Devi, 2004 LawSuit (SC) 1198; Ashok Kumar Bajpai v. Ranjana Bajpai, 2003 LawSuit (All) 1031; Morgan Stanley Fund; Arvind Gupta v. Kartik Das; Securities and Exchange Board of India, 1994 LawSuit(SC) 549 and Burn Standard Company Limited v. Dinabandhu Majumdar, 1995 LawSuit (SC) 545. MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 4
5. Mr. Saquib Neshant, learned counsel for respondent no. 3 submitted that appellant did not file any document regarding her ownership along with the application and respondents no. 1 and 2 had already filed suit and therefore, new connection was not issued in the suit property.
6. The appellant-plaintiff has filed suit for permanent and mandatory injunction against the respondents-defendants before the learned trial court stating, interalia, that she is daughter-in-law of the defendants no. 1 and 2 and she got married with the son of defendants no. 1 and 2 on 29.04.2000 and since then she is residing at the address L-1-113/4, Shani Bazar Road, Sangam Vihar, New Delhi and thereafter in the year of 2006 she was shifted to the suit propert. Since her marriage, plaintiff is residing peacefully in her matrimonial house and she gave birth to two sons both studying in class XII and XI. The defendant no. 1 has filed one collusive civil suit no. 769/2019 with the collusion of the husband of the plaintiff just to throw out the plaintiff from the suit property and same is pending before Shri Dharmender Singh, SCJ Saket, New Delhi. On 06.11.2019, the defendant no. 1 had disconnected the supply of electricity to the suit premises just to harass the plaintiff and her children. She filed an application under section 151 of the CPC in said civil suit to restore the supply of electricity in the suit property but same was dismissed by learned SCJ vide order dated 18.12.2019 observing that application is not MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 5 maintainable. Thereafter, present suit has been filed for restoration of supply of electricity etc. The application under Order XXXIX Rules 1 & 2 read with Section 151 CPC was also accompanied with the suit before the learned trial court. The said application was dismissed by the learned trial court by impugned order. Hence, this appeal.
7. Vide impugned order, the application under Order XXXIX Rule 1 & 2 read with Section 151 CPC was dismissed by the learned Trial Court observing that in another suit for permanent and mandatory injunction filed by defendant no. 1 against the plaintiff herein and her husband, plaintiff never sought any such relief nor even brought the fact of alleged disconnection of electricity to the notice of the concerned court; that plaintiff has not filed any separate case against her husband under Domestic Violence Act for seeking suitable alternative accomodation despite pleading connivance between her husband and defendant no.1; that ex-parte interim injunction sought by plaintiff is one of the main and final reliefs for which plaintiff is required to lead evidence; that the plaintiff has not disputed the title of defendant no. 1 in suit property.
8. It is admitted that the appellant is daughter-in-law of the respondents no. 1 and 2 and she got married with the son of defendants MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 6 no. 1 and 2 on 29.04.2000 and since then she is residing at the address L- 1-113/4, Shani Bazar Road, Sangam Vihar, New Delhi and thereafter in the year of 2006 she was shifted to the suit property i.e. First Floor (Barasati) of the said address and since then, she is residing in her matrimonial house (suit property) and she gave birth to two sons there. The respondents no. 1 and 2 has not disputed about suit property as a matrimonial home of the appellant.
9. One of the reasons of dismissing the interim injunction application vide impugned order is that in another suit for permanent and mandatory injunction filed by defendant no. 1 against the plaintiff and her husband, plaintiff never sought any such relief nor even brought the fact of alleged disconnection of electricity to the notice of the concerned court. This observation does not appears to be correct because in said suit (civil suit no. 769/2019), appellant herein filed an application under section 151 of the CPC to restore the supply of electricity in the suit property but same was dismissed by learned SCJ vide order dated 18.12.2019 observing that if appellant herein has such grievance, she should file the suit for appropriate relief and relief claimed cannot be granted merely on moving an application in a suit which have not been filed by appellant herein. Hence, the apellant had filed the application for restoration of supply of MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 7 electricity in said suit also and said application was not dismissed on merit by the learned SCJ in said suit filed by the respondent no. 1 herein.
10. Other reason for dismissing the interim injunction application vide impugned order is that ex-parte interim injunction sought by plaintiff is one of the main and final reliefs for which plaintiff is required to lead evidence. Learned trial court has referred some judgments for said reasoning. It is correct that the generally final relief sought for should not be granted at an interim stage. But this does not mean that no any such relief can be granted at interim stage in any circumstance. In para no. 17 of the judgment in case of Ashok Kumar Bajpai (supra) referred by learned trial court, it is observed by the Hon'ble Supreme Court that the court should not grant interim relief which amounts to final relief and in exceptional circumstances where the Court is satisfied that petitioner is bound to succeed and fact-situation warrants granting such a relief, the court may grant the relief but it must record reasons for passing such an order and make it clear as what are the special circumstances for which such a relief is being granted to a party. Furtrher, in para no. 15 of said judgment, it was observed that in exceptional circumstances, where for on reason or other court feels compulsion to grant an interim relief which amounts to final relief, the court must record reason for passing such interim relief. Similar view has been expressed by Hon'ble Supreme MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 8 Court in Burn Standard Co. Ltd. (supra) referred by learned trial court. Hence, in exceptional circumstances said type of interim relief can be granted with reasons.
11. The appellant has admitted in the plaint itself that respondents no. 1 and 2 are the owners of the suit property. But it is admitted by the respondents no. 1 in his reply to the present appeal that appellant is daughter-in-law of the respondents no. 1 and 2 and she got married with the son of defendants no. 1 and 2 on 29.04.2000 and since then she is residing at the address L-1-113/4, Shani Bazar Road, Sangam Vihar, New Delhi and thereafter in the year of 2006, she was shifted to the suit property and since then, she is residing in her matrimonial house (suit property) and she gave birth to two sons there. Hence, it is admitted position that suit property is matrimonial home of the appellant and she is residing there since long along with her two sons. Hence, appellant is having right to reside in her matrimonial home unless she is evicted/dispossed with due process of law. Appellant has stated that supply of electricity has been disconnected from the suit property by the respondents no. 1 and 2 on 06.11.2019 and electricity is basic need but said basic need has been discontinued by the respondents no. 1 and 2 and due to which she and her sons are depreived of said basic right. In Madan Lal (supra), Hon'ble Himachal Pradesh High Court observed that MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 9 there is no gain in saying that potable water or electricity are integral part of Right to Life within the meaning of Article 21 of the Constitution of India and these are basic necessities for human being and can well be termed as essentials of human rights. In Molay Kumar Acharya (supra), Hon'ble Calcutta High Court observed that no one in the modern days can survive without Electricity, and therefore, the right to Electricity is also a right to life and liberty in terms of Article 21 of the Constitution of India. Similarly, Divisional Bench of Hon'ble Delhi High Court in Mohd. Faeooq Khan (supra) observed that, there is no doubt that in today's world, life without electricity is impossible. By observing so, order not granting petitioner essential service of electricity was set aside by Hon'ble Delhi High Court.
12. Appellant along with her two sons are residing in suit property since at least 2006, which is her matrimonial home as admitted by the respondents no. 1 in his reply to this appeal. The appellant is daughter-in- law of the respondents no. 1 and 2. It is not in dispute that respondent no.1 is owner of the suit property. In Ambika Jain v. Ram Sharma & Anrs. ,R.F.A. No. 222/2019, decided on 18.12.2019, Hon'ble Delhi High Court observed that even if the daughter-in-law is unable to and does not seriously dispute the title of her in-laws, a decree under Order XII Rule 6 CPC could not have been passed without even considering her rights MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 10 under the DV Act or by dismissively directing her to approach the DV Court for protection of her rights under the DV Act. It was also observed that Section 26 in no way bars the powers of a Court, seized by a civil proceeding affecting an aggrieved person and the respondent under the DV Act, to grant reliefs to the aggreived person under Sections 18 to 22 of the DV Act in the civil proceedings itself and further observed that the right to reside of the aggreived person in her matrimonial home is a important statutory right.
13. In view of above discussion, I am of the view that the right to electricity is also a right to life and liberty in terms of Article 21 of the Constitution of India and no one in the modern days can survive without electricity. The appellant is daughter-in-law of the respondents no. 1 and 2 and suit property is her matrimonial home. Appellant and her two sons can not be expected to reside in the suit property without electricity and therefore, exceptional circumstances exist in the present case for granting interim relief. Appellant has prima facie case, balance of convenience also lies in her favour and she will suffer irreparable loss, if interim injunction is disallowed. In this background, the impugned order not granting appellant this essential service cannot be sustained. Hence impugned order is set aside and application of appellant-plaintiff under Order XXXIX Rules 1 and 2 is allowed. The respondents no. 1 and 2 are MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 11 directed to restore the supply of electricity in the suit property where appellant is residing within fifteen days from today till disposal of the suit. The appellant shall pay electricity charges to the respondents no. 1 and 2/respondent no. 3 as the case may be and if needed, sub meter can be installed as per law/rules. Appeal is allowed accordingly. Nothing herein contained shall tantamount to have an impression on the merits of the case. File be consigned to Record Rooms.
Announced in open court.
Dated:15.10.2020
(SANJEEV KUMAR-II)
Additional District Judge-04
South District, Saket Courts, New Delhi
Digitally signed by
SANJEEV SANJEEV KUMAR
KUMAR Date: 2020.10.15
13:05:51 +0530
MCA DJ/1/2020 Rajni v. Ram Prakash & Ors. 12