Delhi District Court
Sh. Manish Chib vs M/S Bses Yamuna Power Ltd on 11 January, 2022
IN THE COURT OF SH. KARTIK TAPARIA: CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 94177/16
In the matter of :
Sh. Manish Chib
S/o Late Shri Raj Pal Chib
R/o I16/261, Bapa Nagar,
Karol Bagh,
New Delhi110005. .... Plaintiff
VERSUS
1. M/s BSES Yamuna Power Ltd.
18 Block East Patel Nagar,
Near Dominos Pizza
New Delhi110 008.
2. Sh. Madan Lal
S/o Sh. Charan Dass
R/o D15, West Patel Nagar
New Delhi. ....Defendants
Date of Institution: 03.07.2010.
Date of reserving the judgment: 06.01.2022.
Date of Judgment: 11.01.2022.
Final Judgment : Suit Decreed.
JUDGEMENT
(Suit for Permanent Injunction)
1. The brief facts of the present case are that the plaintiff along with his brother, sister, mother and uncle are tenants in respect of a shop 1 of 29 bearing Private No. 2 in property No. 6771/10, Dev Nagar, Karol Bagh, New Delhi at a monthly rent of Rs.83/ and entire rent under Sec. 27 of the Delhi Rent Control Act is being deposited in the court of Ld. Addl. Rent Controller, Delhi as the landlord Sh. Madan Lal has filed a false, frivolous and concocted petition for eviction alleging sub tenancy and refused rent as and when tendered.
1.1 It is further submitted that earlier Sh. Raj Pal Chib, predecessor in interest of plaintiff was a tenant along with his brother Sh. Rajinder Pal Chib but since Sh. Raj Pal Chib was not feeling well and was suffering from cancer for several years and died in the year January, 1997 and the tenancy being commercial has devolved on all the legal heirs of late Sh. Raj Pal Chib along with his brother Sh. Rajinder Pal Chib who are in possession and use and occupation of the shop in question.
1.2 It is further submitted that since Sh. Raj Pal Chib was unwell for several years and was not able to look after the business, the electric connection in the shop was disconnected and since 1997 there was no electricity in the shop, however, the electricity with K. No. 114144032174 was sanctioned in the premises by the defendants on 15.02.2010 in a camp organized by defendants in Karol Bagh wherein all the charges prior to 1997 were waived in respect of electric connection.
1.3 It is further submitted that as the landlord of the premises Sh. Madan Lal has filed an eviction petition alleging false facts against the 2 of 29 plaintiff and his brother, mother and sister, the sanction of electricity connection in premises by the defendants cause heartburn to the said Sh. Madan Lal who in order to harass the plaintiff wants to get the electric connection disconnected through defendants.
1.4 It is further submitted that the defendants hence issued a letter to the plaintiff on 22.02.2010 to the following effect : "You are requested to provide your ownership/property papers within seven working days as the owner of the premises has objected to the meter installed at your premises.
This is a notice giving you seven days time to prove your ownership or NOC from your landlord failing which the meter will be disconnected without any further notice."
1.5 It is further submitted that the aforesaid letter was duly replied through the counsel for the plaintiff on 05.03.2010 but the defendants have not desisted from their illegal design of threatening the plaintiff for disconnecting the electricity supply to the shop has again issued a letter dated 23.06.2010 to the following effect : "Kindly refer to our earlier notices last one dated 22.02.2010 you are hereby given this final notice to provide your ownership/property papers or NOC from your landlord within three working days failing which your connection will be disconnected without any further notice."
3 of 29 1.6 It is further submitted that the plaintiff is a bonafide tenant and requires no NOC or any other authority for obtaining electricity connection, as electricity is a necessity and during this scorching heat, it will not be possible to use the shop even for a day without electricity.
1.7 It is further submitted that the letter under reference is illegal and uncalled for but the defendants will not desist from their illegal design of disconnecting the electricity to the premises i.e. Private Shop No. 2 in property No. 6771/10, Dev Nagar, Karol Bagh, New Delhi, the plaintiff is left with no alternative but to file the present suit. With these facts, the plaintiff has filed the present suit with the following prayer :
a) That a decree for permanent injunction may be passed in favour of the plaintiff and against the defendants thereby restraining the defendants from disconnecting electricity supply through K. No. 114144032174 in shop bearing Private No. 2 in property No. 6771/10, Dev Nagar, Karol Bagh, New Delhi.
b) Any other relief(s) which this Court may deem fit and proper under the circumstances of the case may be passed in favour of the plaintiff and against the defendants.
c) Cost of the suit.
2. Summons of the suit for settlement of issues were issued and 4 of 29 served upon the defendants. In the written statement, defendant No.1/BSES YPL has taken the preliminary objections that the present suit filed by the plaintiff is not maintainable and the same is liable to be dismissed in view of th fact that the plaintiff has not approached to this court with clean hands, and has suppressed the material facts, which go against him, hence, the plaintiff is not entitled to any discretionary relief under the provisions of Specific Relief Act, 1963. It is further submitted that the suit of the plaintiff is bad for nonjoinder of necessary party. Prayer is made accordingly to dismiss the suit of the plaintiff with exemplary costs.
3. In the written statement filed by defendant No. 2 Sh. Madan Lal, defendant No. 2 has taken the preliminary objections that the present suit filed by the plaintiff is not maintainable and the same is liable to be dismissed in view of the fact that the plaintiff has not approached to this Court with clean hands and has suppressed the true and material facts which go against him. Hence, the plaintiff is not entitled to any discretionary relief under the provisions of Specific Relief Act, 1963.
3.1 It is further submitted that the suit of the plaintiff is not maintainable and the same is liable to be dismissed in view of the fact that defendant No. 2 is the owner and landlord of whole property No. 6771/10, Dev Ngasr, Karol Bagh, New Dlehi. The plaintiff Gagan Chib and Ekta Chib are children of late Rajpal Chib and his wife Sudesh Chib. Late Sh. Rajpal Chib was the tenant in Shop No. 2 of this property No. 6771/10, 5 of 29 Dev Nagar, Karol Bagh, New Delhi wherein he was selling grocery in this shop till his death and he was using electricity connection fo BSERS YPL K. No. 114041400255 (Old K.No. 114100426043P) which ws in the name of the earlier tenant M/s Ramphal Surender Kumar. Plaintiff has also admitted in para No. 4 of the plaint that defendant No. 2 is the landlord of the subject premises, who has filed an eviction petition. Prayer is made accordingly to dismiss the suit of the plaintiff with exemplary costs.
4. In replication, the plaintiff has denied all the allegations made in the written statements and reiterated those made in the plaint.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 27.01.2011 :
i) Whether plaintiff is entitled for a dfecfree of permanent injunction, as prayed for ? OPP
ii) Whether the suit of the plaintiff is bad for nonjoinder of necessary parties ? OPD
iii) Relief.
6. In support of his case, the plaintiff examined himself as PW1 by tendering his evidence by way of affidavit Ex.PW1/1. He relied upon the following documents : 6 of 29
i) Ex.PW1/1 is the copy of the electricity bill dated 29.04.2010.
ii) Ex.PW1/1 is the another electricity bill dated 22.06.2010.
ii) Ex.PW1/3 is the notice addressed to the plaintiff by AM(PS) BSES (PTN).
iii) Ex.PW1/4 is the reply dated 05.03.2010 to the aforesaid notice.
iv) Ex.PW1/5 is another notice addressed to the plaintiff by AM(PS) BSES (PTN).
The plaintiff was crossexamined at length by Ld. Counsel for the defendants. Thereafter, the plaintiff closed his evidence vide order dated 22.10.2013.
7. On the other hand, defendant No. 1/BSES YPL examined Sh.Mukesh Ravivanshi as DW1 by tendering his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents :
i) Ex.DW1/1 is already Ex.PW1/DX1 which is the NOC.
ii) Ex.DW1/2 (Colly.) is already Ex.PW1/D2 which is Indemnity Bond etc.
iii) Ex. DW1/3 is already Ex.PW1/DY1 which is Connection Service Form.
iv) Ex.DW1/4 has been mentioned in the affidavit and the same is now deexhibited and marked as Mark A. 7 of 29
v) Ex.DW1/5 has been mentioned in the affidavit and the same is now deexhibited and marked as Mark B.
vi) Ex.DW1/6 is already exhibited as Ex.PW1/D2.
vii) Ex.PW1/7 is already exhibited as Ex.PW1/D2/3.
DW1 was crossexamined at length by Ld. Counsel for the plaintiff. Thereafter, DW1 closed his defence evidence vide order dated 05.04.2018.
8. D2W1 is Sh. Madan Lal S/o Late Sh. Charan Dass. He tendered his evidence by way of affidavit Ex.D2W1/X and relied upon the following documents:
i) Ex.PW1/D1 is the electricity bill of the shop in question under occupation of the plaintiff.
ii) Ex.D2W1/A which is my objection against granting electricity connection without my NOC.
iii) Ex.D2W1/B which is forged NOC signed by Smt. Sudesh, mother of the plaintiff.
D2W1 was crossexamined at length by Ld. Counsel for the plaintiff. Thereafter, D2W1 closed his defence evidence vide order dated 16.03.2020.
9. By way of order dated 27.01.2011 and 09.04.2012, following 8 of 29 issues and additional issues were framed in the present case:
1) Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
2) Whether the suit of the plaintiff is bad for nonjoinder of necessary parties ? OPD1
3) Whether the plaintiff is guilty of suppression and concealment of material facts and has approached the court with clean hands ? OPD2
4) Whether the plaintiff is the rightful owner of the property bearing number 6771/10, Dev Nagar, Karol Bagh, New Delhi, as alleged ? OPP
5) Whether the plaintiff has locus standi to file the present suit ?
OPD2
6) Whether the suit of the plaintiff is without any cause of
action? OPD2
7) Relief
10. I have heard the arguments advanced by Ld. Counsel for the plaintiff bank and carefully perused the record. My issuewise findings are as under : Issue No. 2
11. The burden of proving this issue was on Defendant No. 1 who alleged that Defendant No. 2, who was originally not impleaded as a party
9 of 29 to the suit, is the real owner of the suit property. However, since defendant No. 2 was impleaded subsequently in the present suit vide order dated 21.01.2012, the present issue has become redundant. Accordingly, the suit of the plaintiff is not bad for nonjoinder of necessary parties. Present issue is decided in favour of the plaintiff and against the defendants.
Issue No. 412. The burden of proving this issue was on plaintiff. However, it has been pointed out by the Ld. Counsel for the plaintiff that he has never averred that he is the rightful owner of the suit property. In fact, the plaintiff has throughout the trial, maintained the same stand that Defendant No.2 is the owner of the suit property and he is the protected tenant under the provisions of DRC Act. The same is also manifest form the first paragraph of the plaint which categorically states that the plaintiff along with his family members is a tenant of the suit property, and that Mr. Madan Lal i.e. Defendant No. 2 is the landlord in the said tenancy. The same stand is also maintained by Defendant No. 2. Further, it is also admitted by the parties that Eviction proceedings are also pending between the parties. Accordingly, I am of the belief that the plaintiff never raised the dispute over the ownership of the suit property, and he has expressly admitted that he is merely a tenant in the suit premises. Accordingly, I have no hesitation in deciding that the plaintiff is not the rightful owner of the property bearing number 6771/10, Dev Nagar, Karol 10 of 29 Bagh, New Delhi. Present issue is decided in favour of defendant No. 2 and against the Plaintiff.
Issue No. 513. The burden of proving this issue was on Defendant No. 2. It is averred by Defendant No. 2 that the Plaintiff has no locus standi to file the present case as shop no. 2 is in the exclusive possession of one Sh.Kanhaiyya Lal S/o Roshan Lal as the sub tenant of the legal heirs of the original tenant Late Sh. Rajpal Chib. It is further averred that eviction petition on the ground of Subtenancy is also pending in the court of Ld. ARC.
14. The defendant No. 2 has admitted that the plaintiff along with other legal heirs of late Sh. Rajpal Chib are the protected tenants in the suit property, eviction suit is already pending between the Parties. Since, the plaintiff is a lawful tenant until evicted by the due process of law, he is entitled to the amenities as basic as electricity. Further, the plaintiff has filed the present suit of permanent injunction against the act of Defendant No.1 thereby restraining the defendant from cutting the supply of electricity from the rented premises. Since, the plaintiff would be directly and adversely affected by the acts of defendant No. 1, I see no reason why the plaintiff has no locus standi to file the present case. Lastly, I find no merits in the contention of Defendant No. 2 that the plaintiff has no locus standi as one Sh. Kanhaiyya Lal S/o Roshan Lal is in the exclusive 11 of 29 possession of shop No. 2 of the suit property, because defendant No. 2 has failed to prove the same either by documentary or oral evidence. Accordingly, I have no hesitation in believing that the plaintiff has locus standi to file the present suit. Present issue is decided in favour of plaintiff and against defendant No. 2.
Issue Nos. 3 & 615. Issue Nos. 3 & 6 are decided together being inextricably bound. Defendants have stated that the plaintiff has no cause of action to file the present suit as the plaintiff played fraud upon Defendant No.1 to get the electricity connection, and concealed true and material facts from the court. It is the case of the defendants that the plaintiff approached the camp organized by Defendant No. 1 on 15.02.10 to obtain the electricity connection at the suit premises. It is further averred that the plaintiff actively misrepresented that Mrs. Sudesh Chib and Gagan Chib are the coowners of the suit property, and have given a No objection Certificate in favour of the plaintiff to obtain electricity connection. It is further averred by the defendants that the plaintiff filed certain forged and fabricated documents such as duly notarized NOC allegedly signed by Mrs. Sudesh Chib (mother of the plaintiff), duly notarized indemnity bond and affidavit in the name of the plaintiff, wherein the plaintiff and his family are merely tenants and had no right to issue the NOC and connected documents, and by preparing and filing the same have committed the offence of forgery. That the whole charade saw the light of the day when Defendant 12 of 29 No. 2 raised a complaint with Defendant No. 1 vide the forgery and the impersonation done by the said legal heirs.
Per contra, the plaintiff has averred that he never misrepresented regarding his status in the property to Defendant no. 1 for obtaining the connection, that he only filed the rent receipts and ID Proof at the camp at the time of applying for electricity. That he never filed any NOC, Affidavit or indemnity bond.
16. Accordingly, from the above said discussion the churned out controversies are:
a) Whether the plaintiff portrayed himself/his mother as the owner of the suit property?
b) Whether he plaintiff forged and filed the NOC, Indemnity Bond and the affidavit?
The burden of proving both these questions was on the defendants. Defendant No. 1 brought on record Ex. DW1/1 (Ex. PW1/DX), Ex. DW1/2 (Ex. PW1/DZ and Ex. PW1/DZ1), Ex DW 1/3 (Ex. PW1/DY), Ex. DW ¼ (Mark A) which are NOC, Indemnity Bond and Affidavit collectively, Service Connection Form and Declaration respectively. Mr. Mukesh Ravivanshi, manager at Enforcement, BSES, Central was examined as a witness for BSES/Defendant No.1.
17. In order to decide the controversies involved in present 13 of 29 issues, firstly the documentary evidence and secondly the oral evidence led by the witnesses have to be analyzed and dissected. In order to prove the culpability of the plaintiff, defendants have relied upon five documents i.e. NOC, Indemnity Bond and Affidavit collectively, Service Connection Form and Declaration as mentioned above.
18. Firstly, the defendants' case is built around the NOC which was allegedly made and signed by the mother of the plaintiff Mrs. Sudesh Chib. The NOC brought on record bears the signature of 'Sudesh' affixed in Hindi language, However the plaintiff throughout his cross maintained the same stance that neither he filed this NOC with defendant nor the signatures belong to his mother. The burden to prove that the sign actually belonged to said Mrs. Sudesh Chib was on the defendant. However, Mrs. Sudesh Chib was never called as witness by either of the defendants so that she could be confronted with her alleged signatures. Accordingly, the said NOC remains unproved by the defendants to have been forged and filed at the instance of the plaintiff. Further, FSL report regarding the signature comparison on the said NOC in FIR no. 100/12 has also been filed on record, which clearly shows that the comparative results are inconclusive to determine that the signature on the NOC were actually affixed by Mrs. Sudesh Chib.
Secondly, regarding the Affidavit and Indemnity Bond allegedly filed by the plaintiff, it was admitted by the witness/DW1 that the indemnity bond and the affidavit are unsigned. It was also stated by the 14 of 29 witness that the documents were scrutinized at the front desk, and in case of any discrepancy connection was not supplied to the applicant. It is clear as a day from the bare perusal of Ex. DW1/2 that the same were not only unsigned, but all the spaces provided in the document are blank. Not even one of the options of occupant/tenant/owner was selected in the documents. It clearly shows that there were major discrepancies in the documents, which would be revealed to any trained eyes without putting much efforts. Since, the documents were unsigned, it can't be said with definite authority and conviction that the same were filed by or at the instance of the plaintiff.
19. The strangest discrepancy in the case of defendants emerges when Documents Mark DW1/P2, Mark DW1/P3 and Mark DW1/P4 which are the certified copies of Indemnity Bond, Affidavit and NOC respectively were filed on record on 30.11.2017. It is admitted by the witness that Ex. DW1/2 were both unsigned, however Mark DW1/P2, Mark DW1/P3 which are the certified copies of the same original (of which Ex. DW1/2 is also a copy), bear the signatures of the plaintiff. This is a major contradiction in the case of the defendant, as the alleged signs of the plaintiff were affixed on the abovesaid documents after the copies of the original blank document had already been filed on record by Defendant No. 1. Neither Defendant No. 1 nor defendant No. 2 has been able to explain the said mischief. No question was ever put to the plaintiff on this account. Accordingly, I hold the opinion that the affidavit and indemnity bond can not be read in evidence, as the abovesaid unexplained and unaccounted 15 of 29 manipulation has been committed in the same. Plaintiff was never even confronted with the sign affixed on Mark DW1/P2, Mark DW/P3 to know if the same had been affixed by him. Plaintiff was never recalled as a witness in light of the newly emerged fact, and accordingly it was never proved that the signs were affixed by the plaintiff to defraud the defendants.
20. Lastly, Defendant relied upon the Service connection form/Declaration i.e. Ex. DW1/3. During his cross examination, the plaintiff admitted his signatures on the same affixed at Points A, B and C. However, the same does not prove anything as it was never averred by the plaintiff that he did not apply for the electricity connection and did not fill the said form. Since, the plaintiff has himself submitted that he applied for the electricity connection, the signatures on the service connection form further strengthen and corroborate the testimony of the plaintiff. Further, the said form doesn't find any mention of the Affidavit, NOC, and affidavit at the designated column, being the documents filed along with the application, which again brings the defence of the defendants in question.
21. Accordingly, it appears from the aboveheld discussion that from the bare perusal of the documents it can't be held that the documents were filed by the plaintiff with Defendant No. 1.
22. The oral testimony of DW 1 now has to be examined to see if 16 of 29 the same can substantiate the defence taken by the defendants.
At the very beginning of the cross examination it was stated by Mr. Raghuvanshi that he has no personal knowledge of the case as he was not posted during the relevant period, and that his knowledge comes from official record. It was also stated by the witness that the documents were scrutinized at the front desk, and in case of any discrepancy connection was not supplied to the applicant. However, this fact cannot be swallowed that the above referred unsigned documents, which on the face of them suffered from glaring omissions and errors, were accepted by Defendant No. 1 facilely. Especially so, when the front desk official scrutinized and verified documents filed by the applicants on a daily basis. It is not expected from Defendant No. 1 and it officials to verify the authenticity of the documents filed, but it was the bare minimum duty of the front desk official to at least verify if the documents were signed, and mentioned that the applicant was applying for electricity as a tenant or the owner.
23. Another issue with the testimony of the witness is that he has no personal knowledge of the matter as he was not there at the camp when the documents were filed, but derives his knowledge only through the record. It is trite law that oral evidence in all cases must be direct and not hearsay. In the present case, the evidence of DW1 is direct only to the extent where he describes the procedure which was in place during the relevant time for the purpose of obtaining electricity connection. The testimony of DW1 regarding the documents filed by the plaintiff is not 17 of 29 direct evidence as he himself has stated during his cross examination that he is not aware as to what documents were filed by the plaintiff at the time of applying for electricity connection, as he was not at the camp at relevant time. It is further stated by the witness that documents were scrutinized by the officials of Defendant No. 1 after receiving complaint from Defendant No. 2. However, the official who subsequently scrutinized the documents was never called as a witness, who could directly prove the existence and condition of the documents when they were first found to be inadequate. Further, as per the version of DW 1, Mr. Saheel Jalal was the concerned dealing clerk in the year 2009 who received and verified the abovesaid documents, however he was never called as a witness to prove that these documents were actually supplied by the plaintiff at the relevant time.
Further, there is no document/receipt which can show as to what documents were supplied by the plaintiff at the time of applying for electricity. One of such provisions is found in Section 8 of the Service connection form i.e. Ex. DW1/3, the heading of which is "specify the list of documents attached". Column 4 of the same specifically provides for "proof of ownership/occupancy", however the same is kept blank and no reference is made to the NOC/Indemnity Bond/Affidavit allegedly filed by the plaintiff. Since, the same is blank and there is no other document prepared by defendant No. 1 regarding the documents filed by the plaintiff, it can't be held conclusively that the said documents were ever filed by the plaintiff.
18 of 29 Lastly, the defendants failed to call Mr. M.L. Gupta, notary public, as a witness, whose seals are affixed on the notarized documents allegedly filed by the plaintiff. Mr. M.L. Gupta would have easily proved as to at whose instance these documents were notarized. Since the burden to prove these issues was on the defendant, the burden of calling and examining Mr. Gupta as a witness was also on them, However the defendants failed to prove the same.
24. Ld. Counsel for Defendant No. 2 during final arguments pointed out that there is contradiction in the testimony of the plaintiff where he initially denied the filing of the affidavit and indemnity bonds, but later on stated that he did not know whether he filed those documents or not. The arguments of Ld. Counsel are not very stirring for two reasons:
firstly, the defendants were not able to prove their own pleading in the first place and left gaping holes in their case which could easily have been mended by calling relevant witnesses, secondly the documents that were shown to the plaintiff to contradict his testimony were neither original nor certified copies but merely photocopies. In fact the original documents were never even tendered by Defendant No.1.
25. In view of the abovesaid findings, I am of the opinion that the defendants failed to call and examine material witnesses as stated above who could prove that the documents were prepared by the plaintiff and were filed by him at the time of applying for electricity.
19 of 29
26. To sum up the whole discussion, I am of the view that the defendants failed to prove that the plaintiff forged NOC, Affidavit and Indemnity Bond, and misrepresented Mrs. Sudesh Chib as the owner of the suit property in order to obtain electricity connection from Defendant No. 1. Defendants further failed to shift the burden of proof cast upon them. Accordingly, Issue No.2 and Issue No. 6 are both decided in favour of the plaintiff and against the defendants.
Issue No. 127. The burden of proving this issue was on the plaintiff. It is the case of the plaintiff that Plaintiff applied for electricity connection in the camp organized by Defendant No. 1 on 15.02.2010. That the defendant No. 1 issue a letter dated 22.02.2010 to the plaintiff to furnish ownership documents within 7 days. That reply to the same was given by the plaintiff on 05/03/2010. That a second notice dated 23/06/2010 was issued by defendant No. 1 to the plaintiff intimating the plaintiff that the electricity connection would be cut off if the documents were not furnished by the plaintiff. Consequently, the plaintiff filed the present suit thereby seeking permanent injunction against defendant no.1 restraining it from cutting off the electricity connection.
In the present case, the landlord tenant relationship between the plaintiff and defendant No. 2 is established as an eviction suit is already pending between them in the court of Ld. ARC. On the other 20 of 29 hand, defendant no. 1 had already given final intimation to the plaintiff that if the plaintiff failed to file the ownership documents, the electricity connection would be cut off by BSES.
28. Defendants resist the suit of the plaintiff mainly on three grounds as specified below:
a) That the relief is barred under the provisions of Section 41(i) of The Specific Relief Act, 1963 as the plaintiff concealed material facts from the court that he defrauded Defendant N. 1 for obtaining electricity connection, and hence is, by his conduct, disentitled to the discretionary relief.
b) That the relief is barred under the provisions of Section 41(h) of The Specific Relief Act, 1963, as equally efficacious remedy is available to the plaintiff under section 45 of The Delhi Rent Control Act, 1958.
c) That the plaintiff has no prima facie right to obtain the relief, as according to DERC (Supply Code and Performance Standards) Regulations, 2007, a tenant can only apply for electricity meter if he has an NOC form the landlord, and in instant case the landlord has not given any NOC.
29. First defence raised by the defendants qua 41(i) of The Specific Relief Act, 1963 has already been settled in the findings of issue no 2 and issue no. 6 in para No. (), and the same are not repeated here 21 of 29 for the sake of brevity. Accordingly, this defence does not cause any hindrance in the case of the plaintiff.
30. Regarding second defence, it is submitted by defendant no. 2 that as per the conjoint reading of section 45(2) and explanation 1 of section 45(2) of The Delhi Rent Control Act, 1958 the plaintiff has the right to approach the Ld. Rent Controller for seeking the present relief, and the relief of Permanent Injunction is barred under 41(h) of The Specific Relief Act, 1963. A reference may be made to section 45 of The Delhi Rent Control Act, 1958: "Section 45 Cutting off or withholding essential supply or service.
(1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.
(2) If a landlord contravenes the provisions of subsection (1), the tenant may make an application to the Controller complaining of such contravention.
(3) If the Controller is satisfied that the essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities 22 of 29 immediately, pending the inquiry referred to in subsection (4). Explanation. An interim order may be passed under this subsection without giving notice to the landlord.
(4) If the Controller on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was cut off or withheld by the landlord without just and sufficient cause, he hall make an order directing the landlord to restore such supply or service.
(5) The Controller may in his discretion direct that compensation not exceeding fifty rupees
(a) be paid to the landlord by the tenant if the application under subsection (2) was made frivolously or vexatiously
(b) be paid to the tenant by the landlord, if the landlord has cut off or withheld the supply or service without just and sufficient cause.
Explanation.I In this section, "essential supply or service" includes supply of water, electricity, lights in passages and on staircases, conservancy and sanitary services.
Explanation.II For the purposes f this section, withholding any essential supply or service shall includes, acts or omissions attributable to the landlord on account of which the essential supply or serviced is cut off by the local authority or any other competent authority.
After going through the above said provision, I find no merits 23 of 29 in this contention of the defendants for two reasons. Firstly, Section 45 of Delhi Rent Control Act comes into play only after the essential supply has been cut off or withheld, however in the present case the same has not been done but there is only an apprehension of the same being done. Secondly, Section 45 of DRC Act, 1958 is applicable only against the landlord or any agent acting on his behalf. Since, the plaintiff has not asked any relief against the landlord but only against BSES, Section 45 is no applicable in the present case.
31. Lastly, regarding third defence, defendants have placed reliance on DERC (Supply Code and Performance Standards) Regulations, 2007, and it is submitted by the Ld. Counsels for defendants that as per the said regulations, electricity connection at the relevant time could be granted only upon furnishing of the document pertaining to ownership/occupancy of the premises as well as NOC from the landlord in case of tenanted premises by the applicant. Since, the Plaintiff is admittedly a tenant in the suit property, he does not have title documents as required, and he could apply for connection only on furnishing NOC as given by the landlord i.e. Defendant No. 2. Now the catch22 situation is that the Landlord is not inclined towards giving NOC to the plaintiff as an eviction suit is already pending between the parties, rendering plaintiff remedyless. In view of the same, defendants have strongly opposed the present relief as the plaintiff cannot furnish any of the documents which could entitle him for the electricity connection. On the other hand, Ld. Counsel for plaintiff has relied upon the following 24 of 29 judgments on this point, relevant portions of which are also reproduced hereunder:
a) Dayal Krishna Phadaiyal Vs. Sripal and Ors. wherein it was held by Hon'ble Delhi High Court : "The petitioner had already filed a suit U/s 45 of the Delhi Rent Control Act seeking restoration of the electricity connection, which as per the petitioner, was disconnected by late landlady Smt. Sumndari Devi. In the said circumstances, the petitioner had approached the respondent for grant of an independent electricity connection. The said independent electricity connection, as per the counsel for the respondent cannot be granted to the petitioner in view of AnnexureI of the Delhi Electricity Supply Code Performance Regulation.
The electricity being an essential amenity cannot be denied to the petitioner simply because of the fact that the petitioner is not in a position to obtain No Objection Certificate from the landlord with whom he is in litigation"
b) Prabhu Dayal & Another Vs. B.S.E.S. Yamuna Power Ltd.
& Others wherein it was held by Hon'ble Delhi High Court : In view of the inter se dispute between the petitioners and respondents 2 to 5, it is apparent that the respondent Nos. 2 to 5 are not ready and willing to give no objection certificate. However, occupation and tenancy rights of the petitioners are 25 of 29 not denied and have been accepted and admitted. The petitioners have right to enjoy and use the tenancy rights. The petitioners are certainly entitled to electricity connection as their occupation cannot be regarded as unauthorized. It is admitted that no decree of eviction has been passed against the petitioners. In view of the peculiar facts and circumstances of the case, it is directed that respondent no.1 may process the application filed by the petitioners in accordance with law but without insisting on no objection certificate from the landlords.
32. The law as held by Hon'ble High Court of Delhi in the above referred citations squarely applies to the present case, and actively negates the arguments advanced by Ld. Counsel for the defendants. From the perusal of the factual matrix and the law as laid down by Hon'ble Delhi High court, it is clear that in a situation (such as the case in hand), the basic right of electricity cannot be denied to a lawful tenant, unless of course he is lawfully evicted, merely because the landlord is disinclined towards giving NOC to the tenant. Plaintiff is a tenant in the suit property as of today, and the fact that eviction proceedings are pending the parties, can't deprive him of his basic legal rights that come with his legal position and character. Plaintiff can't be forced to live in darkness until the eviction proceedings reach to a conclusion, merely because the landlord is not ready to give NOC.
In view of the abovesaid discussion, I am of the opinion that 26 of 29 the third defence raised by the defendants is also not tenable.
33. Since, plaintiff has been successful in establishing his abovesaid right qua the tenanted premises, and that Defendant No. 1 is set to cut the electricity connection, I am of the firm view that defendant no. 1 is threatening to invade the plaintiff's enjoyment of property. I am also of the opinion that the relief sought by the plaintiff is not barred under the provisions of Section 41 of Specific Relief Act, 1963. I am further of the opinion that no prejudice shall be caused to either of the defendants if the relief is granted, as Defendant No. 1 is not prejudicially affected if plaintiff continues to make regular and timely payments of the electricity bills which fall due against him qua the disputed connection. Even Defendant No. 2 would not be prejudicially affected, if the electricity is continued to be supplied to the plaintiff until the plaintiff is lawfully evicted from the suit property.
34. Having opined this, I hold that the plaintiff has been able to discharge the burden of proof cast upon him, and the defendants failed to bring the case within any of the exceptions provided under Section 41 of Specific Relief Act, 1963.
Present issue is decided in the favour of the plaintiff and against the defendants.
35. Accordingly, the plaintiff is entitled to the relief of Permanent Injunction as prayed for. However, it is made specific that the plaintiff is 27 of 29 required to make the regular and timely payments of the electricity bills which fall due against him qua the disputed connection. In case, he fails to do the same, Defendant No. 2 will have all the legal rights to proceed against the plaintiff as per law.
Relief
36. In view of the above findings, the suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendants. Defendant No. 1 is hereby restrained from disconnecting electricity supply through K. No. 114144032174 in shop bearing Private No. 2 in property No. 6771/10, Dev Nagar, Karol Bagh, New Delhi subject to the fulfillment of the following conditions within 30 days from the date of the judgment :
i) The plaintiff will clear the arrears of electricity charges, if any, pertaining to the meter installed in the suit premises.
ii) The plaintiff will deposit the security amounting to six times the average monthly bill (computed as average consumption for last 3 months) the defendant no.1 to indemnify defendant no.1 as against any arrears of electricity dues in case of any eviction order pass against the plaintiff.
iii) The security amount so deposited shall be refunded interest free as and when the plaintiff vacate the suit premises after adjusting the same towards the electricity dues, if any.
iv) The Plaintiff will pay the monthly charges of the consumption 28 of 29 of electricity to the defendant no.1 directly and defendant no.1 shall be entitled to disconnect the electricity as per the rules if plaintiff fails to pay the dues against outstanding bill.
v) The charges of the electricity will not be recoverable from defendant No. 2, however the security amount deposited by the plaintiff will be adjustable towards the arrears of charges, if any.
vi) This judgment shall come into operation only if the aforegoing conditions are fulfilled by the plaintiff within 30 days. In case of non compliance of the condition within the stipulated time frame, defendant No. 1 shall be at liberty to disconnect the electricity connection.
vii) Defendant No. 2 is at liberty to adhere to the rules and regulations applicable to the ordinary electricity connection, which are not prejudicial to the relief granted.
Parties to bear their own costs.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Digitally
signed by
KARTIK
KARTIK TAPARIA
TAPARIA Date:2022.01.11
13:31:08
Announced in the open ( Kartik Taparia
+0530)
court today on 11.01.2022. Civil Judge 02 (Central), Tis Hazari Courts, Delhi.
29 of 29