Delhi District Court
C.M. Kapoor vs Bses Yamuna Power Ltd on 6 February, 2008
-1-
IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE : DELHI
D F D F D F DF D F D F D F D F D F D F D F D F D F D F D F D F D F
MCA : 70/07
DATE OF INSTITUTION : 19/12/2007
DATE OF RESERVING THE ORDER : 06/02/2008
DATE OF ORDER : 07/02/2008
IN THE MATTER OF :-
DFDFDFDFDFDFD
C.M. KAPOOR,
S/O LATE SH. S.N. KAPOOR,
R/O G-254, PREET VIHAR,
DELHI-110092.
.....APPELLANT
VERSUS
BSES YAMUNA POWER LTD.,
SHAKTI KIRAN BUILDING,
KARKARDOOMA,
DELHI-110092.
.....RESPONDENT
Contd.....
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O R D E R
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1. Feeling aggrieved by the impugned order dated 27/10/2007, the appellant/plaintiff has filed the present appeal on 19/12/2007, vide which the second interim injunction application was dismissed by Ld. Civil Judge.
2. I have heard Sh. Om Prakash, Advocate, Ld. counsel for appellant/plaintiff and Sh. Hemant Gupta, Advocate, Ld. counsel for respondent/defendant and carefully perused the record. I have carefully perused the trial court record as well the impugned order. I have given my considerable thought to the submissions put forth by Ld. counsel for parties. I have also carefully perused the following judgments relied by Ld. counsel for appellant/plaintiff :-
(i). Bombay Electric Supply & Transport Undertaking V/s Laffans (India) Pvt. Ltd. & Anr.
2005 V AD (S.C.) 1 Contd.....
-3-(ii) G.C. Khanna & Ors. V/s Electric Construction and Equipment Co. Ltd.
139 (2007) Delhi Law Times 128
(iii) Bhawna Manchandani V/s Swaran Dhawan 119 (2005) Delhi Law Times 183
3. In the main suit the plaintiff has prayed for the following relief :-
''It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to :
(i) To pass a decree of
declaration in favour of the
plaintiff and against the
defendant whereby the
Speaking Order dated
02/08.03.2007 pertaining to meter no.12434749 of K.No. 123003190171 be declared null and void, nonest, illegal and unenforceable against the plaintiff.
(ii) To pass a decree of permanent injunction in favour of the plaintiff and against the defendant whereby the defendant and its officials, employees and representatives be restrained from enforcing Contd.....
-4-the alleged direction of regularization of sanctioned load according to the connected load i.e. 16.502 KW allegedly found on 08.11.2006 and disconnecting the electricity supply to the Ground Floor of property of the plaintiff from meter no.12434749 of K.No. 123003190171 installed at Ground Floor of Property no.G-254, Preet Vihar, Delhi- 110092.
.....................''
4. In first application of interim injunction under order XXXIX R-1 & 2 r/w Sec.151 CPC dated 19/03/2007, the appellant/plaintiff has prayed for the following relief:-
''It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to restrain the defendant and its employees and representatives by way of ad-interim ex-parte injunction order from disconnecting the electricity supply from meter no.12434749 of K.No. 123003190171 installed at Ground Floor of property of the plaintiff bearing no.G-254, Preet Vihar, Delhi-110092 for Contd.....
-5-enforcing the demand of regularization of sanctioned load during the pendency or disposal of the accompanying suit and such other and further order which this Hon'bleCourt deems fit and proper may also be passed in favour of the plaintiff and against the defendant.''
5. In second application of interim injunction under order XXXIX R-1 & 2 r/w Sec. 151 CPC dated 20/07/2007, the appellant/plaintiff has prayed for the following relief :-
''It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to restrain the defendant and its employees and representatives by way of ad-interim ex-parte injunction order from disconnecting the electricity supply from meter no.12434749 of K.No. 123003190171 installed at Ground Floor of property of the plaintiff bearing no.G-254, Preet Vihar, Delhi-110092 for enforcing the demand of Rs.72,160/-
raised vide Bill No.YMENF050720070113 payable by 12th July, 2007 during the pendency or disposal of the present suit and such other and further order wh;cih this Hon'ble Court deems fit and Contd.....
-6-proper may also be passed in favour of the plaintiff and against the defendant.''
6. The Ld. Trial Court while disposing off the two interim injunction applications has granted the following relief :-
''..........In view of the submission made by the defendant the application u/o 39 Rule 1 & 2 is allowed. The defendant are restrained from disconnecting the electricity supply of the plaintiff on the basis of inspection dated 08.11.2006 & speaking order dated 02/08.03.2007 till the final disposal of the present suit.''
7. Para 9 of the impugned order reads as under:-
''The present suit is in respect of inspection carried out by the defendant in the premises of the plaintiff on 08.11.2006. AS to the application u/o 39 Rule 1 & 2 the defendant in their WS in para 8-10 of the reply on merits have averred that they are not disconnecting the electricity supply of the plaintiff on the basis of inspection dated 08.11.2006 & speaking order dated 02/08.03.2007.
Contd.....-7-
The WS is accompanied with the affidavit of the competent officials of the defendant. In view of the submission made by the defendant the application u/o 39 Rule 1 & 2 is allowed. The defendant are restrained from disconnecting the electricity supply of the plaintiff on the basis of inspection dated 08.11.2006 & speaking order dated 02/08.03.2007 till the final disposal of the present suit.
Now coming to the Second Application u/o 39 Rule 1 & 2 CPC moved by the plaintiff. In the second application u/o 39 Rule 1 & 2 CPC the plaintiff has challenged the theft bill No.YMENF050720070113 for Rs.72,160/- which has been raised on the basis of inspection carried out on 21.03.2007 & 09.05.2007. The present suit is in respect of inspection dated
08.11.2006. I am of the opinion that the second application u/o 39 Rule 1 & 2 is based on different cause of action altogether. Cause of action is a bundle of essential facts which the plaintiff has to prove in order to succeed in getting the relief prayed for. The facts alleged in the second application u/o 39 R- 1 & 2 are altogether different from the facts alleged in the present suit. I am of the view that the plaintiff should have filed a separate suit challenging the legality of the theft bill no.YMENF050720070113 for Contd.....
-8-Rs.72,160/- raised on the basis of inspection carried out on 21.03.2007 & 09.05.2007.
Keeping in view the
aforementioned discussion the
second application u/o 39 R-1 & 2 is hereby dismissed.
Both the Application u/o 39 Rule 1 & 2 are accordingly disposed off.
...............''
8. A perusal of record shows that the main suit has been filed on the basis of inspection dated 08/11/2006, following which the speaking order dated 02/08.03.2007 was passed. This speaking order is on the basis of inspection dated 08/11/2006 which is on page 155 & 157 of the trial court record. Part of the speaking order reads as under :-
''..............In view of the foregoing facts DAE is not established and accordingly, the following order is passed :
1. No DAE bill is to be raised as per Tariff Schedule, 2005-06 and Regulation 25 & 26 of Contd.....-9-
Metering & Billing Regulations of DERC.
2. The connected load of 16.502 KW DX was found connected at the time of inspection. As such, the consumer/user of the supply is required to get load sanctioned/ regularised accordingly.''
9. This shows that on the basis of speaking order dated 02/08.03.2007 no DAE bill is to be raised.
10. The second interim injunction application refers to show cause notice dated 21/05/2007 received on 09/07/2007, speaking order dated 27/29.06.2007 and assessment bill of Rs.72,160/- payable by 12/07/2006(it should have been 12/07/2007). Admittedly, these were not the subject matter in the main suit. No relief in respect of abovesaid show cause notice, speaking order and bill has been prayed for in the main suit. As per Ld. counsel for appellant/plaintiff these are the subsequent events, as speaking order mentions the date of inspection as 21/03/2007 and 09/05/2007. The Contd.....-10-
story of inspection on 21/03/2007 & 09/05/2007 and burnt meter is false and concocted. Copy of show cause notice on the basis of inspection dated 09/05/2007 for personal hearing on 30/05/2007, speaking order dated 27/29.06.2007 on the basis of inspection dated 21/03/2007 and 09/05/2007 have been filed along with bill for sum of Rs.72,160/- with due date12/07/2007 on 24/07/2007 by appellant/plaintiff.
The copy of speaking order dated 02/08.03.2007 was also filed on 21/03/2007 by appellant/plaintiff. As per record, the main suit was filed on 21/03/2007.
11. The perusal of relief prayed in second interim injunction application clearly shows that relief of injunction from disconnection of supply of electricity in respect of K.No. 123003190171 installed at Ground Floor of property no.G-254, Preet Vihar, Delhi for enforcing demand of Rs.72,160/- has been prayed for. Regarding injunction from enforcing the demand i.e. from recovery of money provisions of Section 41(b) of The Specific Relief Act, 1963 are clear, which reads as follows:-
Contd.....-11-
S-41 Injunction when refused of - An injunction cannot be granted -
(a) ...............
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought ;
...............
12. Meaning thereby that the relief from enforcing injunction from demand of money is barred. Moreover, it is well settled proposition of law that interim relief has to be granted which is within the ambit of relief prayed for in the main suit. Part of the order dated 27/10/2007 has been challenged by way of this appeal i.e. with regard to second interim injunction application. The relief prayed for in the second interim injunction application is not covered in the relief prayed for in the main suit. It is neither ancillary nor otherwise the relief prayed in the main suit. Such kind of relief therefore, cannot be granted when the second interim injunction application is based on different show cause notice/speaking order/bill, which are not subject Contd.....-12-
matter in the main suit. Merely by moving interim injunction application and making averment in the application, it cannot be said that these averments have been made in the main plaint. The second interim injunction application is not the part of the pleadings.
While passing order/granting relief, court has to consider the pleadings of the parties. The argument put forth by Ld. counsel for appellant/plaintiff to the effect that subsequent event has to be considered and order II R-3 CPC permits for uniting cause of action is not disputed but these have to be as per law. The subsequent events can be considered by way of seeking amendment in the plaint wherein cause of action can be united or by filing fresh suit. The authorities relied by Ld. counsel for appellant/plaintiff are also not disputed but with due respect, these are not of any help to the appellant/plaintiff in the facts and circumstances of this case.
13. In view of the abovesaid discussion, I am of the considered view that the Ld. Trial Court has rightly dismissed the second interim injunction application.
Contd.....
-13-There is no illegality or infirmity in the impugned order.
The impugned order does not warrant interference. The impugned order dated 27/10/2007 is upheld.
Accordingly, the present appeal stands dismissed.
Parties shall bear their own cost.
Copy of this order be sent along with the TCR.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON : 7th February, 2008 (PINKI) Additional District Judge, Delhi.
Contd.....