Delhi District Court
Shagufta vs Bses/Bypl on 23 September, 2024
IN THE COURT OF CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PRESIDED OVER BY SH. SAHIL KHURMI
CNR No:-DLCT030014642017
CS SCJ No.681/2017
1. Smt. Shagufta
D/o Late Sh. Riazuddin,
2. Smt. Shaista,
D/o Late Sh. Riazuddin,
3. Smt. Mehtab
D/o Late Sh. Riazuddin,
4. Smt. Nasima
W/o Late Sh. Riazuddin,
All R/o 6320, Gali Marwari,
Qassabpura,
Sadar Bazar,
Delhi-110006. ....Plaintiffs
Versus
1. BSES/BYPL
For District Manager
Aram Bagh, Paharganj,
New Delhi-110055.
2. Mohd Saeed
R/o 6320, Gali Marwari,
Qassabpura,
Sadar Bazar,
Delhi-110006. Digitally
Sahil
signed by
Sahil Khurmi ...Defendants
Date:
Khurmi 2024.09.23
16:28:53
CS SCJ No.681/2017 +0530 Page No.1 of 17
Date of institution of suit 28.02.2017
Date on which reserved for judgment 30.08.2024
Date of pronouncement of judgment 23.09.2024
Decision DISMISSED
SUIT FOR MANDATORY, PROHIBITORY AND
PERMANENT INJUNCTION
JUDGMENT
BRIEF FACTS
1. Shorn of unnecessary details, the brief facts as per the plaint are that plaintiffs are the owner occupants and landlord of their ancestral property bearing No. 6320, Gali Marwari, Qassabpura, Sadar Bazar, Delhi-110006, built up to four story.
1.2 It is the case of the plaintiff that Mohd. Saeed/ defendant No.2 is the illegal occupations/trespassers in the property of plaintiffs, and facing civil cases, decree of eviction against the defendant No.2 and that defendant No.2 has filed an Appeal against the decree pending. That the defendant No.2 being illegal occupant and trespasser is residing in the property in question without getting legal connection of water and electricity from D.J.B. and BSES/BYPL using the supply of water and electricity from D.J.B. & BSES/BYPL by way of direct theft. That the defendant No.2 is approaching to BSES/BYPL for getting new electricity connection in his name on the basis of wrong and false I.D. Proofs. That defendant No.2 is illegal occupant/trespasser in the ancestral property of the plaintiffs and that he has been using Digitally signed by CS SCJ No.681/2017 Sahil Sahil Khurmi Date: Page No.2 of 17 Khurmi 2024.09.23 16:29:07 +0530 the electricity by way of direct theft. That despite providing proper information to defendant No.1 and to Delhi Police in this regard, no legal action has been taken against the defendant No.2 although the premises has been raided many times in this past and he has been caught red handed stealing electricity.
1.3 It is further stated that on 23.02.2017 the plaintiffs moved a complaint to the Business Manager BSES/BYPL requesting that the defendant No.1 should not be granted new electricity connection at the suit property illegally, especially on the basis of forged documents and request was made to the BSES/BYPL to take legal action against the erring person but the said request was refused by BSES/BYPL and thereafter the plaintiffs sent the complaint to the BSES/BYPL through post office by speed post.
1.4 That defendant No.1 has no right to install electricity connection/meter in the suit property without giving the plaintiffs an opportunity to be heard, without completing commercial formalities, without knowing the real facts of the case without making any verification of the person, without NOC of the owner/plaintiffs, without getting inspection report, demand note. That plaintiffs are the original owner of the suit property having absolute right, title and interest in the suit property. Hence, the present suit has been filed with following reliefs:
a) for directing the defendants not to grant/sanction the supply of new electricity connection in the property bearing No.6320, Gali Marwari, Qassabpura, Sadar Bazar, Delhi-110006 and further restraining the defendants from committing illegal activities,
b) restraining from repeating illegal act, conduct in future, Digitally signed by Sahil Sahil Khurmi Date:
CS SCJ No.681/2017 Khurmi 2024.09.23 Page No.3 of 17 16:29:16 +0530 restrain BSES/BYPL from infringing the obligatory right of the plaintiffs with
c) restraining defendant No.1/BSES from infringing obligatory rights of the plaintiffs
d) further direction to BSES/BYPL to place all the related documents before this Court.
2. Summons of the suit have been served on the defendants and after appearance, Written statement was filed on behalf of defendant.
WRITTEN STATEMENT OF DEFENDANT No.1
3. It is the case of defendant No.1 that the prayer sought by the plaintiff is vague, misconceived, indefinite and it is not clear from the language of the prayer what relief the plaintiff has sought in the present suit. That the defendant No.2 applied for sanction of new electricity connection vide application No.1016068234 dated 21.02.2017 and the demand note for Rs.3,000/- dated 27.02.2017 was issued in the name of Mohd Saeed/defendant No.2. That officials of the defendant visited the premises for installation of the meter on the said premises but due to dispute between the landlord and tenant at the site the meter could not be installed and thereafter a complaint dated 03.03.2017 was received from Smt. Mehtab and other plaintiffs to the effect that the complainant came to know that Mohd Saeed and Mohd Nasir R/o 6320, Gali Marwari, Kasabura, Sadar Bazar, Delhi-110006 are approaching BSES YPL,District Office, Paharganj, Delhi for getting new electricity connection in their name on the basis of wrong and false ID proofs and that they are illegal occupants and trespassers in the property of plaintiffs Digitally signed CS SCJ No.681/2017 Sahil by Sahil Khurmi Date:
Page No.4 of 17Khurmi 2024.09.23 16:29:23 +0530 and without permission or NOC no new electricity connection may be sanctioned in their names. That since there is inter-se dispute reported between the complainant and Mohd Saeed and Mohd Nasir in respect of the suit premises, the request of the defendant No.2 for sanction of new electricity connection was rejected.
WRITTEN STATEMENT OF DEFENDANT No.2
4. It is the case of defendant No.2 that the present suit is without any cause of action. That plaintiff has not come to this Court with clean hands and has concealed the true and correct facts from this Court. That the present suit is infructuous in as much as the new electricity connection had already granted/sanctioned against the requisite fees being acknowledged and received being the civic amenities provided to all under the law of land which cannot be withheld under the garb of the present suit and more particularly when the entire formalities of submitting the documents and the charges received in the office of the defendant No.1 vide receipt No.40033429651 dated 27.02.2017 of Rs.3,000/- for supply of new electricity connection in the property bearing No.6320, Gali Marwari, Qasab Pura, Sadar Bazar, Delhi-110006.
4.1 Further the ownership of the plaintiffs is denied on behalf of defendant No.2. It is further stated that the civil case as referred in the para No.2 of the plaint has not been detailed by the plaintiffs for some ulterior motive but the fact remains that the decree of eviction against the defendant No.2 in favour of the plaintiffs was set aside in Appeal by the Court of Ld. ADJ vide order dated 04.05.2016 which appeal has been assailed by the plaintiffs in Digitally signed CS SCJ No.681/2017 by Sahil Page No.5 of 17 Sahil Khurmi Date:
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review petition which is likely to be dismissed being without merit before Ld. ADJ.
4.2 It is further submitted that the electricity meter installed in the premises of defendant No.2 in which he is residing and for that reason he applied and defendant No.1 sanctioned the electricity connection. It is further submitted that the BSES already issued the demand note of new connection to the plaintiffs on 22.02.2017 and the defendant No.2 deposited the charges on 27.02.2017 vide receipt No.40033429651 to the BSES office and the defendant No.1 sanctioned the new connection to the defendant No.2. It is further submitted that all the formalities are completed by the defendant No.1 and issued the demand note for new connection and further sanctioned the installation of new electricity meter and the defendant No.2 deposited the charges as per rule of defendant No.1.
REPLICATION/REJOINDER
5. Separate Replication/Rejoinder have been filed on behalf of plaintiff to the written statements of defendant No.1 and defendant No.2, thereby reiterating the averments made in the plaint and denying the contents of the written statements.
ISSUES
6. Thereafter on completion of pleadings, the following issues were framed:-
1. Whether the plaintiff is entitled to the decree of permanent Digitally signed by Sahil Sahil Khurmi CS SCJ No.681/2017 Date: Page No.6 of 17 Khurmi 2024.09.23 16:29:38 +0530 injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of prohibitory injunction, as prayed for? OPP
4. Whether the present suit is not maintainable in the present form? OPD-1
5. Relief 6.1 Thereafter the matter was fixed for recording of plaintiff evidence.
PLAINTIFF EVIDENCE
7. Plaintiff Shagufta in order to prove her case has got examined herself as a witness PW-1. PW-1 tendered evidence by way of affidavit Ex.PW1/A and relied on the following documents:-
Ex.PW1/1(colly) (OSR) Complaint dated 23.02.2017.
Mark A Photocopy of judgment dated
14.09.2015 passed by Ms. Shama
Gupta, the then, Ld. CJ.
7.1 PW-1 was duly cross examined by Ld. Counsels for defendant No.1 and 2 and thereafter plaintiff evidence was closed on separate statement of plaintiff and the matter was fixed for defence evidence.
Digitally signed by Sahil Sahil Khurmi Date:
Khurmi 2024.09.23 16:29:45 +0530 CS SCJ No.681/2017 Page No.7 of 17 DEFENCE EVIDENCE
8. In defence, the defendant No.1 has got examined Ms. Shweta Bist, AM(PS), Division Paharganj, as a witness DW-1. DW-1 tendered evidence by way of affidavit Ex.DW1/A and relied on the following documents:-
Mark A Photocopy of complaint dated 03.03.2017.
9. DW-1 was duly cross examined on behalf of plaintiff and thereafter the defence evidence was closed and the matter was fixed for final arguments. Final arguments were heard on behalf of both parties. Record of the case file has been perused carefully.
FINDINGS OF COURT ISSUE No. 1,2 & 3
1. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of prohibitory injunction, as prayed for? OPP
10. All these issues are taken up together being interconnected. The onus to prove these issues is on the plaintiffs. It is the case of the plaintiffs that they are the owner/landlord of the suit property bearing No. 6320, Gali Marwari, Qassabpura, Sadar Bazar, Delhi-110006, built up to four story. It is further stated that defendant No.2 is illegal occupant/trespasser in the property of the plaintiffs.
Digitally
signed by
Sahil Sahil Khurmi
Date:
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11. Per contra, it is stated on behalf of defendant No.1 that the present suit is not maintainable on the ground that the application of defendant No.2 for grant of new electricity connection vide application No.1016068234 dated 21.02.2017 has been dismissed/declined/rejected by defendant No.1 and the present suit becomes infructuous. It is further stated that the plaintiffs have not filed on record any document to prove their ownership in the suit property. It is further stated that the plaintiffs have not come to this Court with clean hands.
LOCUS STANDI OF THE PLAINTIFF/NO PROOF OF OWNERSHIP
12. It is pertinent to note that the plaintiff Shagufta has admitted in her cross examination that she has not filed any sale deed regarding the ownership of the suit property and she has not placed on record any ownership document pertaining to the suit property.
13. In the plaint and evidence affidavit, the plaintiffs have claimed to be owner of the suit property but admittedly no document of ownership or title has been placed on record by the plaintiffs despite specific objection taken by the defendants in the written statement as to status of the plaintiffs as owners of suit property. Thus there is nothing on record which remotely suggests that the plaintiffs are the owner/landlord in the suit property and in what capacity the plaintiffs have filed the present suit to prohibit grant of new electricity connection to the defendant no.2 Thus, the plaintiffs have no locus to file the present suit. Accordingly, the present suit is liable to be dismissed as not maintainable for want Digitally signed by Sahil CS SCJ No.681/2017 Sahil Khurmi Date:
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of locus of the plaintiffs.
PLAINTIFFS HAVE NOT COME TO COURT WITH
CLEAN HANDS AND CONCEALED MATERIAL FACTS
14. For ready reference the relevant extract of cross examination dated 15.05.2023 of PW-1 is reproduced here:-
" It is correct that I have filed a suit for recovery of possession, mesne profits etc against defendant No.2 which was decided by the Hon'ble Court of Ms. Shama Gupta, Ld. Civil Judge-3, THC, Delhi vide judgment dated 14.09.2015. It is correct that defendant No.2 filed an appeal bearing RCA No. 36/15 which was decided by the Hon'ble Court of Ms. Sujata Kohli, Ld. ADJ, Central, THC, Delhi vide judgment dated 04.05.2016. It is correct that the Appellant Court of Ms. Sujata Kholi has set aside the judgment dated 14.09.2015 of Ld. Civil Judge and defendant No.2 was declared to be the tenant in the suit property. It is correct that I have not challenged the judgment dated 04.05.2016 of the Ld. Appellant Court before the Hon'ble High Court of Delhi. It is correct that I have interse dispute with regard to the suit property with defendant No.2. (Vol. I have filed eviction petition against defendant No.2 which is still pending in the Court of Ms. Priyanka Rajput, Ld. ARC, Central, THC, Delhi)."
(emphasis supplied)
15. Thus, the plaintiff Shagufta has admitted in her cross examination dated 15.05.2023 that suit for recovery of possession and mesne profits filed against the defendant No.2 by the plaintiffs was decreed vide judgment dated 14.09.2015 by the Court of Ms. Shama Gupta, the then Ld. Civil Judge-3, Central Tis Hazari Courts, Delhi. Digitally signed by Sahil Sahil Khurmi Date:
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16. It is further admitted by the plaintiff Shagufta that defendant No.2 filed an appeal bearing RCA No.36/15, which was decided on 04.05.2016 by the Hon'ble Court of Ms. Sujata Kohli, the then Ld. ADJ, Central, Tis Hazari Courts, Delhi, in which the Appellate Court of Ld. ADJ has set aside the judgment dated 14.09.2015 of Ld. Civil Judge and defendant No.2 was declared to be tenant in the suit property. The plaintiff Shagufta further admitted that she has not challenged the judgment dated 04.05.2016 of Ld. Appellate Court before Hon'ble High Court of Delhi.
17. Thus, as per the judgment dated 04.05.2016 passed by Ms. Sujata Kohli, the then Ld. ADJ, Central Tis Hazari Courts, Delhi, the status of defendant No.2 was held to be of tenant. The present suit has been filed by the plaintiffs on 28.02.2017 after the decision of Court of Ld. ADJ dated 04.05.2016. In the present plaint, it is stated that defendant No.2 is "illegal occupant/trespasser" in the suit property and whereas the plaintiff Shagufta has admitted in her cross examination dated 15.05.2023 that defendant No.2 was declared to be a "tenant" in the suit property vide judgment dated 04.05.2016 of Ms. Sujata Kohli, the then, Ld. ADJ, Central, Tis Hazari Courts, Delhi.
18. Thus it is apparent that the plaintiffs have not come to this Court with clean hands and concealed the material facts regarding the status of defendant No.2 from this Court. It is settled law that injunction is an equitable remedy and plaintiff is not entitled relief of injunction if he does not come to the Court with clean hands. The Supreme Court in Arunima Baruah v. Union of India (UOI) [MANU/SC/7366/2007] emphasized the importance of the maxim Digitally CS SCJ No.681/2017 signed by Page No.11 of 17 Sahil Sahil Khurmi Date:
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"He who comes into equity must come with clean hands." The Supreme Court ruled that suppression of material facts by a party can impact their right to equitable relief. Such suppression and misrepresentation would undoubtedly affect the Court's willingness to grant equitable relief, as it contradicts the principle of approaching the court with clean hands. The said judgment was relied by Hon'ble Delhi High Court in Freebit As vs Exotic Mile Private Limited CS(COMM) 884/2023 decided on 14.12.2023. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of U.P. and Ors., MANU/SC/0892/2012 has specifically given guidance on how to approach cases where a party is held to be guilty of suppression and misrepresentation. It was held that:-
"The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final."
19. Thus it is reiterated that the plaintiffs have not come to this Court with clean hands and concealed the judgment/decree dated 0 4.05.2016 of Ms. Sujata Kohli, Ld. ADJ, Tis hazari, Delhi. Since, injunction is an equitable remedy and the plaintiffs have not come to the Court with clean hands, therefore the plaintiffs are not entitled relief of injunction.
PRESENT SUIT BEING INFRUCTUOUS
20. It is admitted by Ld. Counsel for plaintiffs vide statement made in the Court on 30.08.2024 that the defendant No.2 has already been evicted from the suit property by the plaintiffs in Digitally CS SCJ No.681/2017 signed by Sahil Page No.12 of 17 Sahil Khurmi Date:
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execution of eviction petition before the court of Ms. Neetu Sharma, Ld. ARC, Central, Tis Hazari Courts, Delhi.
21. In the considered view of this Court, the relief in the present suit to restrain the defendant No.2 from applying new electricity connection and restraining the defendant No.1/BSES from granting electricity connection in the suit property to defendant No.2 becomes infructuous as defendant No.2 already stands evicted from the suit property by the plaintiffs in execution of eviction proceedings.
22. Moreover, the defendant No.1/BSES has stated in its written statement that pursuant to the complaint made by the plaintiffs, the application for grant of new electricity connection of defendant No.2 was rejected. Even then also the plaintiffs contested the present suit for more than seven years despite the relief/prayer in the present suit becoming infructuous.
STRIKING OUT FRIVOLOUS RELIEFS/PRAYERS
23. It is pertinent to note that the plaintiffs have, inter alia, prayed for:
(i) restraining the defendants from committing illegal activities and restraining from repeating illegal activities,
(ii) restraining the defendant No.1/BSES from infringing the obligatory rights of the plaintiffs and
(iii) directing the defendant No.1/BSES to place on record the relevant documents before the Hon'ble Court.
24. Now, I shall discuss the above mentioned reliefs/prayers one Digitally signed by CS SCJ No.681/2017 Sahil Sahil Khurmi Date:
Page No.13 of 17Khurmi 2024.09.23 16:30:26 +0530 by one. Regarding the relief (i) restraining the defendants from committing illegal activities, the plaintiff has argued that the defendant was doing theft of electricity on the suit property and caught red handed by the defendant no.1 and therefore, in the present relief/prayer, the plaintiff has sought injunction restraining the defendant no.2 from committing illegal activities. It is a settled law that Court cannot grant injunction or enforce contract whose performance cannot be supervised by the Court (refer Section 14(b) of Specific Relief Act). The Court cannot be expected to restrain the defendant from committing illegal activities as court cannot regulate and supervise the moral conduct of the parties. If such frivolous reliefs are allowed, then the Civil Courts will be bombarded with plethora of litigation seeking injunction to restrain criminal act of other person in anticipation even before the same is committed. Even otherwise, the said relief/prayer is infructuous as admittedly the defendant no.2 has already been evicted by the plaintiffs from the suit property and no question arises of him doing illegal activity of theft of electricity in the suit property. The said prayer/relief is frivolous, vexatious and abuse of process of court.
25. Regarding the relief (ii) restraining the defendant No.1/BSES from infringing the obligatory rights of the parties, the plaintiffs have no where mentioned what is the obligatory right of the plaintiffs and also not mentioned how are the so called obligatory rights of the plaintiffs have been infringed. The said prayer/relief is frivolous, vexatious and abuse of process of court.
26. Regarding the (iii) relief of directing the defendant Digitally signed by Sahil Khurmi CS SCJ No.681/2017 Sahil Date:
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No.1/BSES to place all the "relevant documents" before Hon'ble court, it is not mentioned by the plaintiffs as to what "relevant documents" are being sought by the plaintiff from the defendant No.1/BSES. The said relief/prayer is cryptic. Moreover it is a settled law that no injunction can be granted if the plaintiffs have the equitable efficacious remedy (Section 41(f) of Specific Relief Act). The plaintiffs have equal efficacious of production of so called relevant documents from the defendant No.1 under the provision of Order XII Rule 8 CPC which deals with production of documents. As per the said provision, a party can issue a notice to the other party which is in possession of the documents to produce the said documents. Accordingly, the said relief/prayer is frivolous, vexatious and abuse of process of court.
27. For the reasons aforementioned, the aforesaid prayers (i),
(ii) and (iii)are struck off from the prayer clause under order VI Rule 16 CPC. Accordingly, issues No.1,2 & 3 are decided against the plaintiffs and in favour of defendants.
ISSUE No.4 Whether the present suit is not maintainable in the present form? OPD-1
28. The onus to prove this issue is on the defendant No.1. As mentioned above, it is stated by defendant No.1 that the present suit is not maintainable being infructuous as the present suit is filed with the prayer to restrain the defendant No.2 from applying for new electricity connection and directing the defendant No.1/BSES not to grant the electricity connection in the suit property to defendant No.2 and the application/request of the defendant No.2 for granting electricity connection in the suit property was also CS SCJ No.681/2017 Digitally signed by Sahil Page No.15 of 17 Sahil Khurmi Date:
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rejected by the defendant No.1 and therefore, the present suit become infructuous.
29. It is further stated on behalf of defendant No.1 that the present suit is also infructuous for the reason that the defendant No.2 has already been evicted by the plaintiffs from the suit property in execution of eviction proceedings against him in the Court of Ms. Neetu Sharma, Ld. ARC, Central, Tis Hazari Courts, Delhi, therefore, question of applying for new electricity connection in the suit property by defendant No.2 or granting the same by defendant No.1 does not arise.
30. This court finds itself in consonance with the submissions of Ld. Counsel for defendant No.1. The plaintiffs have dragged the trial of the present case for more than seven years despite the reliefs/prayers being infructuous as admittedly the request/application of defendant No.2 for grant of new electricity connection in the suit property was rejected/declined by defendant No.1. It is also an admitted position by the plaintiffs that the defendant No.2 stands evicted from the suit property and for this reason also the suit becomes infructuous as no question arises of restraining the defendant No.2 from applying new electricity connection in the suit property or directing the defendant No.1 not to grant new electricity connection to defendant No.2 in the suit property (which is already rejected by the defendant no.1). The present suit is also not maintainable for the reason aforementioned that the plaintiffs have no locus standi to file the present suit as admittedly no document of ownership/title of the suit property has been filed by the plaintiffs. Accordingly, this issue is decided in favour of defendant No.1 and against the plaintiffs.
Digitally
signed by
CS SCJ No.681/2017 Sahil Khurmi Page No.16 of 17
Sahil Date:
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RELIEF
31. In view of foregoing discussion, the present suit is dismissed.
32. No order as to costs.
33. Decree sheet be prepared accordingly.
34. File be consigned to the record room after due compliance.
Digitally signedAnnounced in the open Sahil by Sahil Khurmi Date:
Court today on 23.09.2024. Khurmi 2024.09.23 16:30:50 +0530 (SAHIL KHURMI) Civil Judge-1, Central District, Tis Hazari Courts, Delhi CS SCJ No.681/2017 Page No.17 of 17