Delhi District Court
Sh. Ram Babu Sharma (Deceased) vs Delhi Vidyut Board on 16 February, 2017
IN THE COURT OF SHRI DEEPAK WASON:
SCJ-CUM-RC: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
Suit No. 112/13
CIS - 98473/16
In the matter of :-
Sh. Ram Babu Sharma (deceased)
Through his LRs
(i) Smt. Mithlesh Sharma
(ii) Smt. Pushpa Sharma
both at C-14 (First Floor)
Jangpura - B, New Delhi. ... Plaintiffs
Versus
1. Delhi Vidyut Board
Shakti Sadan, Nehru Place
New Delhi
Through its Chairman, now known as
BSES Rajdhani Power Ltd.
2. Sh. Ramesh Sharma
3. Sh. Jagdish Sharma
Both sons of Late Sh. C. L. Sharma
R/o C-14 (Second Floor)
Jangpura B, New Delhi. ... Defendants
Date of institution : 25.04.2001
Reserved for Judgment : 16.02.2017
Date of decision : 16.02.2017
Suit for Permanent & Mandatory Injunctions
JUDGMENT
1. This is a suit for permanent and mandatory injunction for directing the defendant no.1, its officials and employees be restrained from sanctioning new electricity connection and installation of electricity meter in the common staircase or any other part of the building for feeding the electricity to the second floor of property No. C- 14, Jangpura-B, New Delhi in the name of the defendant no. 2 or 3 and CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 1 of 10 further pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants, thereby the defendants be directed to remove the newly installed electricity meter in the name of defendant no.2 and 3 in the common stair case or any other part of the building by which the second floor of property No. C-14, Jungpura-B, New Delhi (suit property) is feeded with the electricity after cancellation of the new electricity connection sanctioned to the remaining defendants by the defendant no.1.
2. It is a matter of record that earlier the case was filed only for permanent injunction wherein plaintiff has prayed that defendant no.1 and its employees be restrained from sanctioning new electricity connection and installation of electricity meter in the suit property. It is stated in the earlier plaint that plaintiff is the owner of the property in question and after purchasing the same in the year 1981 allowed the defendants no. 2 and 3 to reside their as licensee being real brothers. It is further stated in the plaint that despite service of legal notice, defendants no. 2 and 3 failed to vacate the premises in question and accordingly suit was filed for recovery of possession, mesne profit and permanent injunction. It is further stated in the plaint that on 22.04.2001, the plaintiff saw that defendants no. 2 and 3 are affixing a steel box in a common staircase and then plaintiff came to know that defendant no. 2 had applied for separate electricity connection with the defendant no. 1. It is further stated in the plaint that defendants have no right for the same.
3. It is further stated in the plaint that plaintiff visited the office of the defendant no.1 and requested the official of defendant no. 1 not to sanction or install the new electricity connection in the name of defendants no. 2 or 3.It is further stated in the plaint that defendants no. 2 and 3 are adamant in getting the electricity connection. Hence, the present suit.
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4. The defendant no.1 contested the present suit by filing written statement of its defence taking various objections to the effect that plaintiff has not come to the court with clean hands and plaintiff is not entitled to any discretionary relief under the Specific Relief Act, 1963.
5. In reply on merits, it is contended that defendant no. 2 and 3 have applied for new connection each on the first floor and second floor of the suit property and at that time both of them submitted the ration card and NOC from plaintiff Sh. Ram Babu Sharma along-with affidavit and indemnity bond and accordingly fresh connection was sanctioned on 19.02.2001 and 18.04.2001 respectively for 1.00K.W. for domestic purpose as per the procedure of the defendant no.1. Other allegations of the plaint have been denied and disputed by the defendant no. 1 and prayed for dismissal of suit.
6. The defendants no. 2 and 3 also contested the present suit by filing written statement of their defence contending wherein that present suit is not maintainable, plaintiff has no locus standi and plaintiff has not come to the court with clean hands. On reply on merits, it is stated in the written statement that plaintiff is not the owner of the property in question and rather suit property was purchased by the father of the plaintiff and answering defendant and father of the answering defendants had paid the entire sale consideration to the seller and plaintiff had not contributed even a single penny. It is further stated in the written statement that at that time it was joint family and father of the parties constitutes Hindu Undivided Family and purchased the property in the name of his elder son who had become the Karta of the family being eldest an literate person. Defendants have strongly disputed the ownership of the plaintiff and it is further stated that answering defendants have become the owner of the said portion by adverse possession in suit CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 3 of 10 property. It is further stated in the written statement that defendant no.1 is legally bound to sanction the electricity connection to the persons who were legally entitled to the same. It is further stated in the written statement that answering defendants are residing and occupying the said second floor portion within their own right and thus they are legally entitled to have electricity connection.
7. It is further stated in the written statement that the defendant no.1 has already sanctioned the electricity connection in the individual names of answering defendants on 18.04.2001 and 25.04.2001 as plaintiff has also given No Objection for the same. Other allegations of the plaint have been denied and disputed by the defendants no. 2 and 3 and prayed for dismissal of suit.
8. The plaintiff filed replication to the written statement of the defendants no.2 and 3 and traversed all the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
9. It is a matter of record that vide order dated 30.04.2002, the present suit was dismissed. It is also matter of record that the said order was challenged by the plaintiff and vide order dated 14.05.2003, appeal was allowed and matter was remanded back to the Trial Court for trial afresh as per rules.
10. During the proceedings, plaintiff expired and an application under Order XXII Rule 3 CPC was moved and the said application was allowed on 04.03.2004.
11. It is a matter of record that on 22.04.2004 following issues were framed:-
(1) Whether any electricity connection was sanctioned by the defendant no.1 in favour of the defendant nos.
CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 4 of 10 2 and 3 on the basis of forged and fabricated documents ? OPP.
(2) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for in the plaint ? OPP.
(3) Whether the plaintiff has not approached to this court with clean hands and suppressed the material facts and as such not entitled for any relief in view of the provisions of Specific Relief Act ? OPD.
(4) Whether the plaintiff has no locus standi to file the present suit ? OPD.
(5) Whether the plaintiff is entitled to any relief, if so, what relief.
12. It is a matter of record that PW-1 was examined and partly cross-examined by the defendants and thereafter his cross- examination could not be completed as vide order dated 13.11.2007 suit was again dismissed being infructuous. Hence, his evidence cannot be read in evidence.
13. It is a matter of record that on 16.11.2007, an application was moved by the plaintiffs under Order IX Rule 4 CPC and Order XLVII read with section 151 CPC along with an application under Order VI Rule 17 read with Section 151 CPC. The said application was allowed on 19.07.2011 and suit was restored to its original number.
14. During the proceedings an application under Order VI Rule 17 CPC for amendment of plaint was moved by the plaintiffs and said application was allowed vide order dated 31.01.2012. Thereafter, amended plaint was filed by the plaintiffs and in amended plaint, plaintiffs also claimed relief of mandatory injunction along-with relief of permanent injunction. Written statement was also filed by defendant no.1. In preliminary objection a specific plea was taken by the defendant no.1 that relief of mandatory injunction is highly time barred CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 5 of 10 and hence, suit is not maintainable and is liable to be dismissed.
15. Replication was also filed by the plaintiffs to the amended written statement filed by the defendant no.1 and traversed all the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
16. It is also matter of record that defendants no. 2 and 3 did not file any written statement and they were proceeded ex-parte on 10.01.2013 and on 10.01.2013 an additional issue was also framed which is as under :
Additional issue :
(1) Whether plaintiff is entitled to decree of permanent and mandatory injunction as prayed for ? OPP.
Thereafter, the matter was again adjourned for PE.
17. The plaintiffs examined Smt. Mithlesh Sharma as PW-1 who has relied upon Ex. PW1/1 to Ex. PW1/3. In her examination, PW-1 has reiterated the contents of the plaint. Ex. PW-1/1 is true copy of registered sale deed dated 07.09.1965, Ex. PW-1/2 is electricity bill in the name of Late Sh. Ram Babu Sharma and Ex. PW-1/3 is copy of representation of Late Sh. Ram Babu Sharma. This witness was cross- examined by the defendant and thereafter PE was closed on 04.04.2015 upon her statement.
18. Thereafter, defendant no.1 has examined Sh. Amit Kumar as DW-1. DW-1 has deposed that premises was got verified and it was found that meters were installed in the name of Mithlesh Sharma and one Ramesh Sharma. Verification of report is Ex. DW-1/1. This witness was cross-examined by Ld counsel for the plaintiffs. Thereafter, DE was closed on 29.10.2015
19. I have heard counsel for the parties and perused the CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 6 of 10 material available on record. I have also gone through the written arguments filed by the defendant no. 1.
20. My issue wise findings are as follows:-
Issues No. 1.
21. Onus qua this issue was placed upon the plaintiffs.
22. It is claimed by the plaintiffs that electricity connection was sanctioned by the defendant no.1 in favour of defendants no. 2 and 3 on the basis of forged and fabricated documents. Onus was on the plaintiffs to prove this fact. I have gone through the testimony of PW-1 i.e. Mithlesh Sharma. It is stated in the affidavit that the deceased plaintiff namely Ram Babu Sharma neither signed any No Objection Certificate dated 08.02.2001 nor given the same to any of the defendants. She has nowhere deposed that the said NOC was forged and fabricated. She has also nowhere deposed in the entire affidavit that on the basis of the said NOC, the meters were installed. Hence, this issue is decided against the plaintiffs and in favour of defendant.
Issue No. 223. Plaintiffs have claimed for relief of permanent injunction praying that defendant no.1 be restrained from sanctioning new electricity connection in favour of defendants no.2 and 3. It is an admitted fact that meters have already been sanctioned. Hence, this prayer has become infructuous and releif of permanent injunction cannot be granted to the plaintiffs. Accordingly, this issue is decided against the plaintiffs and in favour of defendants.
Issues No. 3 and 4 are taken together being inter connected to each other.
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24. Onus qua these issues were placed upon the defendants. It is a matter of record that defendant no. 2 and 3 were proceeded ex parte on 10.01.2013. Only defendant no. 1 is contesting the case. Defendants have not led any evidence regarding the fact that plaintiffs have not approached the court with clean hands or plaintiffs have no locus standi to file the present case. Hence, these both issues are decided in favour of the plaintiffs and against the defendants.
25. It is a matter of record that vide order dated 10.01.2013 an additional issue was framed as additional issue no.1 i.e. whether plaintiff is entitled to decree of permanent and mandatory injunction as prayed for. As far as prayer of permanent injunction is concerned, it has already been discussed while deciding issue no. 2. Hence, relief of permanent injunction cannot be granted. Now this court has to see that whether relief of mandatory injunction can be granted in favour of plaintiffs. It is an admitted fact that meter were installed in the year 2001 as admitted by PW-1 Smt. Mithlesh Sharma in her cross- examination. She has specifically deposed that it is correct that electricity connection was installed by BSES on 19.02.2001 and 18.04.2001. Hence, deceased Ram Babu Sharma as well as the present plaintiffs were aware that meters have already been installed in the year 2001. But they all kept mum for long time with regard to relief of mandatory injunction and the application under Order VI Rule 17 read with section 151 CPC was moved by the plaintiffs with regard to relief of mandatory injunction in the year 2007 i.e. after six years. Plaintiffs have not explained that why the said relief was not claimed earlier. Plaintiffs should have filed this relief within reasonable time. But plaintiffs kept mum for long period and no explanation has been given that why the present relief was filed after a long time. A mandatory injunction is a discretionary relief and delay in a factor which has to be taken into account while granting it, where the case for grant of the relief is otherwise made out. Such delay in order to be disqualifying circumstances must amount to waiver or abandonment of the rights CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 8 of 10 sought to be enforced or acquiescence in the Act complained of or laches after the act is done.
26. It is crystal clear from the record that the relief with regard to mandatory injunction was much within the knowledge of the plaintiffs in the year 2001 but the application for amendment was filed after six years. At this stage, it would be relevant to go through Article 113 of Limitation Act, 1963.
27. As per Article 113 of Limitation Act, 1963:-.
Description of Period of Time from which
application limitation period begins to run
113. Any suit for Three years When the right to
which no period of sue accrues
limitation is
provided
elsewhere in this
Schedule.
28. The present suit has been filed for relief of permanent and mandatory injunction and as per Article 113 of Limitation Act, 1963, any suit for which no period of limitation is provided elsewhere in this Schedule, it has to be filed within 3 years when the right to sue accrues. Hence, plaintiffs should have included the relief of mandatory injunction within 3 years from their knowledge regarding installation of meters i.e. 19.02.2001 and 18.04.2001. Hence, relief of mandatory injunction is time barred. Help can be also taken from the judgment titled "Tarlok Singh vs Vijay Kumar Sabharwal" (1996) 8 Supreme Court Cases 367.
29. In view of the reasons stated above, this additional issue is also decided against the plaintiffs and in favour of defendants.
CIS 98473/16 Ram Babu Sharma (through Lrs) vs. Delhi Vidyut Board & Ors. Page no. 9 of 10 RELIEF
30. In view of the findings on issues no.1, 2 and additional issue no.1, the suit of the plaintiffs is dismissed. No order as to costs. Decree sheet be prepared accordingly.
31. File be consigned to Record Room, after due compliance.
Announced in the Open Court today i.e 16th February, 2017.
(Deepak Wason) SCJ-cum-RC: Central District:
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