Delhi District Court
Sh. Mohd. Yasin vs B.S.E.S. Yamuna Power Ltd on 26 February, 2022
IN THE COURT OF SH. KARTIK TAPARIA: CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 3688/18
In the matter of :
Sh. Mohd. Yasin
S/o Late Mohd. Hussain
Owner of Shop No. 1229,
Ground Floor, main Farash Khana
Bazar, Delhi110006. .........Plaintiff
Versus
1. B.S.E.S. Yamuna Power Ltd.
Through itsBusiness Manager
Mr. Palani Kumar
Chandni Chowk, Town Hall,
Delhi110006.
2. Mr. Ashok Kumar
Employee of BSES Yamuna Power Ltd.
Through its Manager
Chandni Chowk, Town Hall,
Delhi110006.
3. Inspector Intizar
Employee of BSES Yamuna Power Ltd.
Through its Manager
Chandni Chowk, Town Hall,
Delhi110006. ..........Defendants
Date of Institution: 20.02.2013.
Date of reserving the judgment: 25.01.2022
Date of Judgment: 26.02.2022
Final Judgment : Suit dismissed.
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JUDGEMENT
(Suit for Declaration, Permanent and Mandatory Injunction)
1. The brief facts of the case of the plaintiff as stated in the plaint are that the plaintiff is the owner in possession of Shop No. 1299, Ground Floor, Main Farash Khana Bazar, Delhi110006. That the plaintiff presently resides at P25, Basti Khwaja Meer Dard, Shakoor Ki Dandi, near Zakir Hussain College, New Delhi110002.
1.1 It is further submitted that the plaintiff was using electricity from the meter K.No. 111016640337, CRN No.1110095717 in the name of the previous tenant Mohd. Zaheer, however, later on he applied for transfer of K. No. and CRN No. in his own name, which was changed b the officials of the defendant after due verification. At that time the defendants did not raise any demand of due of Rs.1,66,000/ in the name of Mohd. Shafiq. That there has never been any tenant by the name of Mohd. Shafiq in the said shop.
1.2 That the plaintiff is regularly paying the electricity charges to the defendants. That on 08.02.213 at about 1:00 PM defendant no. 2 & 3 came to the shop of the plaintiff claiming to be the official of defendant No.1 having come from Lahori Gate. That they extended illegal threats to forcibly, illegally and unlawfully remove the electricity meter bearing K.No. 111016640337, CRN No. 1110095717, and raised a demand of Rs.1,66,000/ in the name of Mohd. Shafiq. That the plaintiff has no 2 of 8 concern with Mohd. Shafiq. That due to the timely intervention of shopkeepers and the persons gathered at the spot defendant Nos. 2 & 3 could not succeed in their illegal task.
1.3 That the plaintiff issued a legal notice to the defendant on 14.02.2013 through Speed Post. That on receiving the legal notice, defendant Nos. 2 & 3 again visited the suit shop and extended illegal threat as stated above. Upon the filing of the written statement, the plaint was amended and para No. 10(a) was added to the effect that the inspection report dated 22.07.2005 and assessment of theft bill (DT) is illegal, void and not binding upon the plaintiff. Hence, the present suit seeking the following reliefs :
(i) That a decree of declaration thereby declaring that the Report dated 22.07.2005 and Assessment of Theft is illegal & void and has no concern with the plaintiff or Meter K. No. 111016640337 and recovery is barred by limitation U/s 56 (2) of Electricity Act;
(ii) That to pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from illegally and unauthorized removing K.No. 111016640337 CRN No. 1110095717 from the shop of plaintiff bearing No. 12229, G.F.
(iii) That pass a decree of mandatory and prohibitory injunctions in favour of the plaintiff and against the defendants with necessary 3 of 8 direction not to remove the electricity meter from the shop of plaintiff bearing No. 1229, G.F. or in case they succeed to remove electricity meter with mandatory injunction to restore the electricity of the meter K. No. 111016640337 CRN No. 1110095717 of the plaintiff.
2. Summons of the suit were never issued as on the first date of hearing i.e. 21.02.2013 A.R. of defendant No. 1 was present in the court. That written statement was filed on 02.05.2013. Subsequently, the matter was transferred to Special Court (Electricity). Issues were framed vide order dated 16.03.2018, and the matter was then transferred to the present court.
3. The defendant No.1 filed its written statement by taking preliminary objections that on 22.07.2005 an inspection was carried out by the officers of defendant No.1, and on such inspection no meter was found at the site and the user Sh. Shafi was found indulged in direct theft of electricity by illegal tapping from BSES Service cable. That the civil court has no jurisdiction to try the present matter. That the plaintiff purchased the suit property from its previous owner Mohd. Ishtiyaq S/o Mohd. Yakub but did not inquire about the pending dues in respect of the subject premises. The contents of the plaint have been specifically denied in the subsequent paragraph.
4. Despite lapse of statutory period, defendant Nos. 2 & 3 have not filed their written statement, hence, defence of defendant Nos.
4 of 8 2 & 3 was struck off, and they were proceeded exparte vide order dated 08.05.2019.
5. In the replication, the plaintiff has denied all the averments made in the written statement and reinstated those made in the plaint. Since the matter sent back/transferred to the Civil Court, the following issues were reframed vide order dated 30.07.2019 :
1. Whether the plaintiff is entitled to the decree of declaration thereby declaring that the Report dated 22.07.2005 and Assessment of Theft is illegal & void and has no concern with the plaintiff or Meter K. No. 111016640337 and recovery is barred by limitation U/s 56 (20 of Electricity Act, as prayed for ? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunction thereby restraining the defendants from illegally and unauthorized removing K.No. 111016640337 CRN No. 1110095717 from the shop of plaintiff bearing No. 12229, G.F., as prayed for ? OPP
3. Whether the plaintiff is entitled to decree of mandatory and prohibitory injunctions with necessary direction not to removing the electricity meter from the shop of plaintiff bearing No. 1229, G.F. or in case they succeed to remove electricity meter with mandatory injunction to restore the electricity of the meter K. No. 111016640337 CRN No. 1110095717 of the plaintiff, as prayed for ? OPP
4. Whether this Court is not having the territorial jurisdiction to try, entertain and decide this suit ? OPD.
5. Whether the suit of the plaintiff is liable to be dismissed as 5 of 8 the plaintiff has not approached the court with clean hands and has tried to suppress the material facts from the court. OPD.
6. Relief.
6. Thereafter, the matter was fixed for P.E. Despite giving several opportunities to the plaintiff to lead P.E, the plaintiff failed to tender his affidavit of evidence. Accordingly, a cost of Rs.1000/ was imposed upon the plaintiff vide order dated 05.04.2021. Even the cost was not paid. Accordingly, the right of the plaintiff to lead P.e. was closed vide order 18.10.2021 and the matter was fixed for D.E. for 09.12.2021. On the date fixed ld. Counsel for the defendants closed his D.E. as the P.E. was never led in the case and the matter was fixed for final arguments.
7. On 11.01.2022 arguments were heard on behalf of the defendants. Since none was present on behalf of the plaintiff, one more opportunity was granted to the plaintiff to advance final arguments for 25.01.2022. On 25.01.2022 since none appeared for the plaintiff, his right to advance final arguments was closed and the matter was fixed for judgment for today.
8. I have heard the arguments of Ld. counsel for defendants. My issuewise findings are as under : 6 of 8 Issue Nos. 4 & 5 Whether this Court is not having the territorial jurisdiction to try, entertain and decide this suit ? OPD.
AND Whether the suit of the plaintiff is liable to be dismissed as the plaintiff has not approached the court with clean hands and has tried to suppress the material facts from the court. OPD.
9. Onus to prove both the issues was on the defendant. As already stated above, no evidence has been led by the defendant, it can be said that the defendant failed to prove these issues. Hence, the same are decided against the defendant and in favour of the plaintiff.
Issue Nos. 1, 2 & 3Whether the plaintiff is entitled to the decree of declaration thereby declaring that the Report dated 22.07.2005 and Assessment of Theft is illegal & void and has no concern with the plaintiff or Meter K. No. 111016640337 and recovery is barred by limitation U/s 56 (2) of Electricity Act, as prayed for ? OPP AND Whether the plaintiff is entitled to the decree of permanent injunction thereby restraining the defendants from illegally and unauthorized removing K.No. 111016640337 CRN No. 1110095717 from the shop of plaintiff bearing No. 12229, G.F., as prayed for ? OPP AND 7 of 8 Whether the plaintiff is entitled to decree of mandatory and prohibitory injunctions with necessary direction not to removing the electricity meter from the shop of plaintiff bearing No. 1229, G.F. or in case they succeed to remove electricity meter with mandatory injunction to restore the electricity of the meter K. No. 111016640337 CRN No. 1110095717 of the plaintiff, as prayed for ? OPP
10. The burden of proving these issues was upon the plaintiff. However, the plaintiff has failed to lead any evidence to substantiate his pleadings and to show that he is entitled any relief as sought in the plaint. It is cardinal rule of civil law that the plaintiff's case has to stand on his own legs. Since the plaintiff has failed to prove his case, it can be said that he failed to discharge the burden of proof in regard to the issues in question. Accordingly, these issues are decided in favour of the plaintiff and against the defendant.
Relief.
11. In view of the findings given on aforesaid issues, the suit of plaintiff is hereby dismissed for lack of evidence.
Parties to bear their own cost.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open ( Kartik Taparia ) court today on 26.02.2022. Civil Judge 02 (Central), Tis Hazari Courts, Delhi.
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