Calcutta High Court (Appellete Side)
Sri Chandra Sekhar Maity & Ors vs Sri. Banabehari Maity & Ors on 26 February, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.A 50 of 2017
+
CAN 6644 of 2019
Sri Chandra Sekhar Maity & Ors.
-Vs-
Sri. Banabehari Maity & Ors.
For the Appellants: Mr. Dipta Bhanu Dutt Adv.,
Mr. Debasish Das, Adv.,
Mr. Abhishake Roy, Adv.
For the Respondents: Mr. G.C Ghosh, Adv.,
Mr. K.C Sahoo, Adv., Mr. G.C Das, Adv.
Heard on: February 12, 2020.
Judgment on: February 26, 2020.
BIBEK CHAUDHURI, J. : -
1. CAN 6644 of 2019 is an application for appropriate order/relief filed by the respondent no.1.
2. Respondent no.1 is the plaintiff no.1 in Title Suit no.139 of 1998 which was filed for declaration and mandatory injunction against the 2 defendant/appellants. Suit was decreed in part by the learned Civil Judge (Sr. Div.), 2nd Court at Contai. Against the said judgment and decree, the petitioner preferred an appeal which was registered as Title Appeal no.10 of 2015. The said appeal was allowed on contest modifying the judgment and decree passed by the trial court and right, title and interest of the plaintiffs over the suit common passage was declared. The defendants were directed to remove obstruction from the said common passage within 60 days from the date of passing of the decree by the first Appellate Court.
3. The said judgment and decree passed in Title Appeal no.10 of 2015 is assailed in the instant appeal before this court by the defendants of the original suit. During the pendency of the appeal the appellant no.4 died.
The surviving appellants are directed to take appropriate steps to enable the appellants to substitute deceased appellant no.4 by his legal heirs and representatives. In the mean time, the son of the petitioner made an application for obtaining new electric connection in the premises before the WBSEDCL. That on February 13, 2018, the WBSEDCL installed pillars for providing new electric connection to the son of the petitioner to their premises. Inspite of erection of electric pillars, WBSEDCL did not provide electric connection to the son of the petitioner. Subsequently, the petitioner came to know that the appellant no.1 made an objection before the WBSEDCL stating, inter alia, that the Licensing Authority cannot provide electricity to the applicant as an order of status quo is passed by the Division Bench of this court in the instant appeal is in force. The son of the applicant invoked the jurisdiction of this court under Article 226 of 3 the Constitution of India by filing W.P no.5743(W) of 2018. However, a Co- ordinate Bench of this court vide order dated June 21, 2019 refused to pass any order in the aforesaid writ petition in the event of an order of status quo being in force in connection with this appeal. However, the petitioner was granted liberty to move appropriate application before this court for proper relief. It is further stated by the petitioner that his father and the father of the opposite party no.1 were two brothers. The property in suit was gifted by the father of the respective parties by registered deeds of gift, the parties are in occupation of their respective properties on the basis of the deeds of gifts executed by their fathers. There is a common passage in between two plots being plot no.366, 367 and 370. The right of the applicant to use the said common passage was upheld upto the first Appellate Court, now the petitioner wants to take electric connection through the common passage, the opposite party no.1 has raised objection the petitioner undertakes that in the event the decision of the second appeal goes against him, he will remove the electric pillars and connection with the help of WBSEDCL at his own cost but during the pendency of this appeal the petitioner's son may be permitted to enjoy the most essential service of electricity in his premises.
4. The learned advocate for the petitioner no.1 submits that the petitioner cannot be denied enjoyment of essential service of electricity in his premise. The opposite party has raised objection in the matter of obtaining electricity on the ground that the Division Bench of this court passed an order directing both the parties to maintain status quo with 4 regard to common passage till the disposal of the appeal. It is submitted by the learned advocate for the petitioner no.1 that the said order of status quo is required to be modified only for the purpose of obtaining electricity by the petitioner no.1 through the said common passage. The petitioner no.1 also undertakes that he will remove the electric connection in the event the decision of this court in the instant appeal goes against him.
5. The learned advocate for the opposite parties, on the other hand submits that the Division Bench of this court vide order dated May 5, 2017 passed an order of status quo with regard to the common passage till the disposal of the appeal. If during the pendency of the appeal the electric poles are erected on the said common passage, nature and character of the said passage will be changed therefore during pendency of the appeal the petitioner cannot be permitted to obtain the electric line through the said common passage.
6. Having heard the learned advocate for the petitioner and the opposite parties and on careful perusal of the instant application, I like to record that electricity is one of the essential service which an occupier of a premises is entitled to get. It is also found that the petitioner undertook to remove the electric line at his own cost if the decision of the instant appeal goes against him.
7. In view of such circumstances, I am of the considered opinion that the order status quo passed by the Division Bench of this court after 5 admission of the appeal is required to be modifed to enable the petitioner's son to take electricity through the said common passage.
8. For the reasons stated above the instant application is allowed. The petitioner is at liberty to take electricity through the common passage on condition that the essential characteristics of the common passage cannot be changed and the petitioner will remove the electric pillars and connection at his own cost if the decision of this appeal goes against him.
9. The instant application is thus disposed of on contest, however without cost.
(Bibek Chaudhuri, J.)