Delhi District Court
Abdul Zabbar vs Bses Yamuna Power on 5 March, 2010
Civil Suit No.1027/06/00
Abdul Zabbar Vs BSES Yamuna Power
IN THE COURT OF SH MUKESH KUMAR GUPTA SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI
Civil Suit No.1027/06/00
(Old Case :10 Years Old. )
Abdul Zabbar,
S/o Shri Zamiruddin,
R/o C24C/563, Bagichi Tejpal,
Vijay Ghat Pushta,
Delhi. ........ Plaintiff
Vs
BSES Yamuna Power,
Gandhi Market Minto Road ,
New Delhi. ........ Defendant
SUIT FOR PERMANENT & MANDATORY INJUNCTION
Date of institution of suit : 04.09.2000
Date of assignments to this court : 10.02.2009
Date of hearing final argument : 22.02.2010
Date of Judgement : 05.03.2010
JUDGEMENT
1 By way of present judgement I shall conscientiously adjudicate upon the plaintiff suit of permanent and mandatory injunction against the defendant seeking a decree of permanent injunction in his favour and against the defendant its agent, employee etc thereby restraining 1 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power them from realising the payment of the Impugned bill of Rs.7,43,552.70ps in respect of K. No.0003530, Meter No.9901350 installed at J.J. Cluster, Vijay Ghat Rushta, Bagichi Tejpal, Delhi . The plaintiff has also prayed for a decree of mandatory injunction against the defendants thereby directing the defendants and its employees, servants, officials and representatives to restore the electricity connection/city Meter having K. No.0003530, Meter No.9901350 by installing the same at J.J. Cluster, Vijay Ghat Pushta, Bagichi Tej Pal, Delhi . Plaintiff has also prayed for costs of the suit.
2. Eschewing prolix details to the pleadings crystallizing the same the plaintiff is stated to be awarded a contract by the defendant to supply single point electricity connection in Jhuggi Jhopari Cluster, situated at Vijay Ghat Pushta, Bagichi Tej Pal, which falls within the Chandni Chowk District of DVB and a load of 90 KW was sanctioned to the plaintiff and a written agreement was reduced in writing between the plaintiff and the defendant in this respect. It is further the case of the plaintiff that the defendant is a statutory body whose duty is to provide the electricity to the citizens of Delhi and on 30.05.2000, a raid was conducted by the officials of the defendant at Vijay Ghat Pushta, Bagichi Tej Pal in the absence of the 2 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power plaintiff. The employees/officers of the defendant did not get the signatures of the proceedings allegedly conducted by them during the raid nor any signature was obtained of any representative of the plaintiff. It is further the case of the plaintiff that at the time of alleged raid, seal of the CT meter was found intact without tempering of any kind or without any defect and thereafter on 22.06.2000, the CT meter connection was disconnected by the defendant despite the fact that the electricity bill upto 01.05.2000 stands paid alongwith bills as and when raised by the defendant from time to time. It is further the case of the plaintiff that on 06.07.1999 the plaintiff gave a letter in writing to the Addl. Chief Engineer, DVB Gandhi market, New Delhi calling upon that Alamgeer S/o Shri Moizuddin @ GayazuddinSipahi, Shah Jahan S/o Shri ShahidHawaldar, Jahangir S/o Shri Moizuddin Sipahi, Shah Alam s/o Shri Mainuddin Fakeer, Yusuf S/o not known residents of Sanjay Amar Colony, Bangali Basti Delhi, have been stealing the electricity. It is further stated that this colony falls within the area of contract /Agreement of the plaintiff , and the plaintiff has specifically mentioned to the DVB officers that these persons are not only stealing the electricity but also supplying the same illegally to others and in this connection the plaintiff has also made complaints to the officer of DVB 3 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power namely Shri Raja Ram and Shri V.K. Sharma, Inspector. It is the case of the plaintiff that the plaintiff has been suffering mentally and economically for nonaction against the theft of electricity by the above named accused persons and in the abovesaid complaint the complainant specifically requested the DESU officers to issue directions immediately to stop the theft of electricity and also requested to take the legal action against them but no action was taken by the defendant. The plaintiff has also stated to have reported the matter to the Vigilance Officer, Power House, Raj Ghat, Delhi. It is further the case of the plaintiff that an FIR was lodged against the plaintiff bearing no.427/2000 dated 30.05.2000 which is totally false and against the facts and the plaintiff has not supplied the electricity to any person directly from the Transformer load/Main Electricity line instead the plaintiff has been supplied the electricity to the Jhuggi Dwellers as per the list attached through CT Meter and regularly paying the bills to the defendant. It is further the case of the plaintiff that electricity bill of theft against Devi Mandal for 30 KW was issued for Rs.41, 580/ for the same period and like wise the bill of the other contractor Moti Lal was raised for Rs.59,300/ for 50 KW of the same period and whereas the DVB employees deliberately and intentionally raised, a sudden bill for Rs.7,43,552.70ps for 4 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power 90 KW against the plaintiff which is unjust unfair, illegal and not sustainable. It is further the case of the plaintiff that the impugned bill for Rs.7,43,552.70ps is to be paid on or before 05.09.2000 which is totally wrong, unfair, unjust in view of the facts that the plaintiff has not consumed the electricity nor dishonestly abstracted the electricity or committed theft of electricity or supplied the same to any person at any point of time. It is further the case of the plaintiff that the pattern of the bills show that the jhuggis dwellers of which list has been attached used/were using the electricity between Unit 5400 MG to 17640 of which bill comes to Rs.21,742.47ps and no show cause notice has been served on the plaintiff for removing the CT meter and no opportunity of being heard to the plaintiff in person was nor afforded by the senior officers of the defendants. It is further the case of the plaintiff that the demands, raised by the defendant in the impugned bill of Rs.7,43,552.70ps is unwarranted, illegal, unfair, unjust, without basis, arbitrary for which the plaintiff is not liable to make the same and the abovesaid impugned bill is against the Principles of Natural Justice. It is further the case of the plaintiff that on 01.09.2000 the plaintiff approached the office of defendant personally for withdrawal of the bill or its correction but the officials of the defendant 5 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power refused to do so. It is further stated in the plaint that the cause of action for the present suit arose on 31.08.2000 when the impugned bill was given to the son of the plaintiff. Hence the present suit seeking a decree of a permanent injunction in his favour and against the defendant its agent, employee etc thereby restraining them from realising the payment of the Impugned bill of Rs.7,43,552.70ps in respect of K. No. 0003530, Meter No.9901350 installed at J.J. Cluster, Vijay Ghat Rushta, Bagichi Tejpal, Delhi . Further praying for a decree of mandatory injunction against the defendants thereby directing the defendants and its employees, servants, officials and representatives etc. b to restore the electricity connection/city Meter having K. No. 0003530, Meter No.9901350 by installing the same at J.J. Cluster, Vijay Ghat Pushta, Bagichi Tej Pal, Delhi
3. Written statement to the suit of plaintiff was filed by the defendant in which the defendant has denied each and every allegation of plaintiff and has contended that the suit of the plaintiff is not maintainable as the plaintiff has violated the terms and condition of the agreement as per inspection conducted by the officials of the defendant on 30.05.2000 and the plaintiff was found indulging of theft of electricity in addition to the 6 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power other irregularity and the suit is also not maintainable as the plaintiff has not approached the court with clean hands and the plaintiff has concealed the material facts from this court. On merits, It is further submitted in the written statement by the defendant that a joint inspection was carried out on 30.05.2000 as per direction and under direction/ supervision of XEN (Enf.) and a joint raised comprising of officials of Enforcement Central M.T.D. Shanker Road, Zonal Staff and CISF was conducted in the area of Bagichi Tej Pal, Kissan Basti, Near Pantoon Pul, Yamuna Pusta Shantivan and it was found that a K. No.FT 353 Meter No. DVB99CT003318 Reading 3870 X 1 R/C Sh. Abdul Jabar, c24C/563, Bagichi Tej Pal Pushta Shantivan, Delhi sanctioned loan, 90 kW, and no out going lead found connected from Cutout of CT Meter and load was found directly taped from transformer out going leads by bye passing the C.T. meter, supply being used after energising the l.V. Mains, being used for Domestic, Commercial and industrial purpose by more than approx. 800 jhuggies, cluster, individual load of 800 Jhuggies could not be taken which was apprised to XEN(Enf.) central and was admitted by him also at site. However, 3 number jhuggies were found using supply for industrial purpose for running Buffing polishing Addas, the detail of which are as under: 7 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power A(i) Unit No.1: user Sh. Rafiq as stated connected load 8 kW (Buffers 2X5 H.P. T/2 3X4 OW, Exaust Fan 2X 180W Fans 1X 60W, Jhuggi no.121.
A(ii) Unit5 No.2 : user Sh. Hafiz as stated connected load, 15.02 kW (Buffers 4X5 H.P. T./L 4X4 OW Lamp 1X6 OW, F1X6OW.
A(iii) User Sh. Bhoore Jhuggi No. 349, connected Load 19.230 KW (Buffers 5X5 H.P,. Pad. Fan. 1X80W, Exaust, Fan 2X80W,T/L 2 X40 W. F 1X60W.
It is further contended that these industrial units were found using electricity from existing mains being fed from aforesaid outgoing loads supply of above mentioned three industrial units were disconnected from pole, Service lines were also removed as per order/directions of XEN (Enf.) Central the theft bill of Sd. Load 90 KW+ I.P. direct load 42.43 KW making load of 132.43 KW(132.43) KW on misuse levy for industrial load used on domestic connection of amounting Rs.16,68,618/ was served to Shri Abdul Jabbar with due date 15.06.2000 Shri Abdul Jabbar had not paid the bill and accordingly meter of the connection awarded to him was removed from the site and report was 8 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power lodged with police. It is further contended that the so far involvement of Shri Abdul Jabar is concerned, he cannot absolved of his liabilities in any circumstances. It is further contended that on the basis of joint team inspection report dated 30.05.2000 the provisional bills of theft of electricity in F/o Sh. Devi Mandal for 30 KW Load was served of rs.41,580/ and in F/o Sh. Koti lal sd. Load 50 KW for Rs.59,330/ on purely single delivery basis in absence of theft billing in readily recknor and tariff book. Final theft bills of remaining amount of Rs.77,100/ and Rs.46,260/ only was served to Shri Moti lal and Devi Mandal respectively on the receipt of the decision. Finally it was contended that the impugned bill on plaintiff has been raised legally and after following due process of law. Defendant has prayed for dismissal of the suit with costs .
4. In the replication, the plaintiff has reiterated the contents of the plaint and denied the contents of the written statement.
5. Vide order dated 19.10.2001 as passed by ld Predecessor of this court, the following issues were framed for adjudication: ISSUES 9 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power (1) Whether DVB conducted illegal inspection on 30.05.2000 and raised illegal bill for Rs.7,43,522/? OPP.
(2) Whether plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
(3) Whether the plaintiff is entitled to the decree
of mandatory injunction as prayed for ? OPP
(4) Relief .
6. It may be seen that the suit was originally filed in the name of plaintiff against the defendant DVB which was later on unbundled in the year 2003 and the work of production, transmission and supply of electricity was segregated and assigned to various corporation/agencies and as such the distribution work was handed over to various distcoms for example BSESYPL in the instant case. The plaintiff has moved an application u/o 22 rule 10 CPC for substitution in the name of defendant which was duly considered and allowed by the Ld Predecessor of this court vide order dated 03.06.03 and as such the name of the defendant was substituted as BSES Yamuna Power Ltd in place of existing defendant D V B. 10 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power
7. Plaintiff in support of its case got examined himself as PW1 and filed his affidavit dated 26.02.02 by way of evidence on record thereby reiterating the contents of plaint on oath. Plaintiff has deposed that he was awarded a contract by the defendant to supply single point electricity connection on 16.4.1999. Witness has mentioned that the photocopy of the same is marked as mark A for supply of electricity to the jhuggi situated at Bagichi Tejpal Vijay Ghat Pushta which falls within the district of Chandni Chowk, Delhi with sanctioned load of 90 KW. The witness has further stated that the raid was conducted by the officials of defendant on 30.05.2000 at Vijay Ghat Pushta in the absence of plaintiff, neither his signature was obtained on proceedings nor any representative was present at the time of inspection. Witness has deposed that CT meter was found intact without tampering and without any defect despite which defendant has illegally disconnected the CT meter on 22.06.2000. Witness has further deposed that the defendant without giving any show cause notice of disconnection disconnected the electricity supply vide K No.003530 meter No.9901350 and has also raised illegal bill to the tune of of Rs.7,43,552.70 paise . Witness has further stated that he has even written a complaint on 06.07.1999 to Additional Chief Engineer DVB 11 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power inviting his attention to the effect that various people are stealing electricity illegally the photocopy of letter dated 06.07.1999 got exhibited on record as mark A (again). Witness has further stated that various letters were thereafter written to the Senior Officers including IG Enforcement dated 21.06.2000 as mark B and he has written various letters to various of officers of department which are marked as mark C and D. Witness has finally stated that despite the aforesaid information no action was taken against the culprits persons who were stealing electricity from direct lines. Witness has finally stated that the pattern of electricity chows that the jhuggi dwellers were using electricity between 5400 MG to 17640 MG and the bill comes out to Rs.21,742.47 paise . Witness has finally stated that illegal demand of Rs.7,43,552.70 paise raised by DVB illegally unwarranted , unjust and without any basis made in arbitrary manner and not sustainable in the eyes of law. Witness has finally mentioned that he has deposited a sum of Rs.2,59,200/ as per the orders of ld ADJ Delhi . The witness has finally stated that his suit is correct and the bill to the tune of Rs.7,43,552.70 paise is liable to be quashed and the defendant is liable to be restrain from enforcing the aforesaid bill. Witness was cross examined at length by the ld counsel for the defendant who has asked various questions 12 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power including the action on contract of plaintiff by defendant DVB as also the persons of defendant at the time of inspection on 30.05.2000. Various suggestions regarding the defendant being found misusing the electricity for industrial purposes such as use of buffing machine and using the same directly by connecting the same to the main line and such questions were asked in cross examination as suggestion to which the witness has denied in negative. Witness has categorically denied that he has not been supplying electricity to jhuggi of Rafiq, Hafiz and Sh Bhoore .
Plaintiff in support of its case further got examined one official from AFO office by summoning him and Sh M K Garg Assistant Grade II was examined as PW2 who has stated to have received a letter dt.06.07.1999 with No.3206 dated 31.07.2000 as endorsement was being received in his office . The witness has again stated that the same was not received in his office and the copy is not available. Witness has stated that as per record the letter is not available in office of Executive Engineer District Chandni Chowk and there is no movement. Witness was however not subjected to cross examination despite opportunity.
The plaintiff finally summoned Sh Radhey Shyam JE, AG III Hemilton Road, Kashmiri Gate who has categorically denied of any 13 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power record or any letter sent by the plaintiff.
8. Vide order dated 31.03.03 ld Predecessor of this court evidence of the plaintiff was closed by order .
9. Repeated opportunities were granted to the defendant to lead the evidence. However the same was not led and vide order dated 07.04.05 of ld Predecessor of this court the defendant evidence was closed by order .
10. It is further pertinent to point out that the court keeping in view the pronouncement of law laid down in 110 (2004) DLT 633 titled Sarjiwan Singh Vs D V B granted an opportunity to the plaintiff to take steps in accordance with law vide order dated 11.08.2009. However the plaintiff has failed to do so or avail the opportunity granted by the court and the court was constrained to close such opportunity vide order dated 22.02.2010.
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11. I have heard the ld counsel for the parties and perused the entire record including the pleadings , documents and oral testimony of witnesses recorded before the court. Before adverting to determination of issues it would be appropriate for the court to briefly discuss the law as it hold the field today in such cases. In Sarjiwan Singh Vs DVB reported as 110 (2004) DLT 633 our own Hon'ble High Court has succintly held that in case where injunction simplicitor is prayed for against receiving the electricity bill for sundry amount it cannot be mandatory for the plaintiff to seek a decree for declaration before being entitled to the consequential relief of injunction. Hon'ble Mr Justice Vikramjeet Sen of our own Hon'ble High Court while disposing of various civil reference petitions has held that in a case where the electricity bill raised by the electricity department is prima facie legal declaration must be prayed for that the bill is incorrect or illegal before the plaintiff could legally pray for an injunction on such bill. The Hon'ble court has further held that in such cases the plaintiff is also required to pay an advolarem court fees in terms of section 7 (iv) (c) of Court Fees Act and valuation of suit has to be varied because in that case same shall include a relief of declaration in respect of the bill. Hon'ble court further while explaining the issue regarding the 15 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power injunction and declaration has vehemently relied upon the pronouncement of law laid down in Shamsher Singh Vs Rajinder Prashad & Ors AIR 1973 SC 2384 (DB). It would be pertinent to quote the relevant para from the aforesaid judgement.
"....... the question whether the relief of injunction prayed for should be considered as a consequential relief to the main relief or not has to be decided on the basis of the allegation and prayer contained in the plaint. Mere astuteness in drafting the plaint will not be allowed to impede the court from looking at the substance of the relief asked for. In a case where there is no controversy from an intelligent reading of the plaint, the court is not required to go further and the relief of injunction can be granted but if from the written statement or the documents placed on record it is evidence that he plaintiff has made a narration which is not factually correct then under these circumstances injunction would become a consequential relief and it would be necessary for the plaintiff to first seek a declaration ......"
And as such emphasis has been laid by the court to go into the Pith and Substance regarding the claim of the plaintiff. At the same time the Hon'ble court has warned against the instances of astuteness in 16 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power drafting of the plaint by the plaintiff .
Similarly in a case reported in 2001 (9) Apex Decision (SC) 559 Kameshwar Parsad Vs Parasnath & ors the Hon'ble Apex court has gone to the extent of holding that if the plaintiff is required to seek an essential relief at the time of filing the suit and such relief is not sought for in the plaint at the time of filing the suit it cannot be allowed to be continued and the plaintiff in such case has to be nonsuited. Accordingly as on today as the law holds the field the plaintiff has while questioned the inspection dated 30.05.2000 in a way also questioned the consequent FAE bill to the tune of Rs.7,43,552.70 paise which the defendant has raised on the basis of aforesaid inspection. In fact the plaintiff has sought injunction against implementation of such FAE bill which is to the tune of Rs.7,43,552.70 paise and in view of the aforesaid discussions the plaintiff was required to seek a decree of declaration in respect of not only the inspection report but also the consequent FAE bill in view of the pronouncement of law laid down in 110 (2004) DLT 633 Sarjiwan Singh (Supra), further the plaintiff was also required to pay an advalorem court fee in terms of section 7(iv) (c)of Court Fees Act. It has to be borne in mind that relief of declaration in the instant case was an 17 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power essential relief which the plaintiff has failed to seek at the time of filing the suit and even failed to take steps to incorporate the same despite clear and categoric defence taken by the defendant in written statement and even opportunity being granted by the court vide order dated 22.04.09 and in Kameshwar view of law laid down in 2001 (9) Apex Decision (SC) 559 Parsad Vs Parasnath & ors (Supra) the plaintiff shall have to suffer a dismissal or omission to seek a necessary relief for which the plaintiff has failed to act . Be that as it may since the court is at the stage of final adjudication the court shall proceed to adjudicate the issues keeping in view the aforesaid discussion in mind.
ISSUE NO1 (1) Whether the DVB conducted illegal inspection on 30.05.2000 and raised illegal demand of Rs.7,43,552.70 paise? OPP The onus of proving this issue was on the plaintiff who was required to prove this issue in terms of allegation raised by the plaintiff in its plaint. In support of its case the plaintiff got examined himself as PW 1 and filed his evidence by way of affidavit on record dated 26.07.02 in which he has clearly and categorically stated that the alleged raid dated 30.05.2000 carried out by the official of defendant DVB at Vijay Ghat 18 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power Pushta Bagichi Tejpal was carried out in the absence of the plaintiff and the officials of defendant has failed to obtain any signature on the proceedings of the same neither any representative of the plaintiff was associated with the alleged raid. Plaintiff in his deposition as PW1 has clearly and categorically stated that on aforesaid date CT meter was found intact without any tampering and any defect and despite the aforesaid the defendant disconnected the electricity of the plaintiff vide connection No.003530 meter No.9901350 on 22.06.2000 and has also raised an illegal bill of Rs.7,43,552.70 paise . The plaintiff on its part has stated that he has written various letters regarding the electricity being stolen by the other jhuggi dwellers from the main line which includes various letters copies of which he got marked as mark A,B, C and D. The plaintiff has categorically stated that he was never given any show cause notice before disconnection of electricity and no opportunity of being heard was afforded to him by the defendant and as such the demand of Rs.7,43,552.70 paise is illegal, unwarranted, unjust and arbitrary raised and the same is liable to be set aside . Defendant on its part has refuted the allegations of the plaintiff thereby stating that a joint raid was conducted at the premises of plaintiff on 30.05.2000 by joint inspection team comprising of official from 19 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power enforcement department, MTD department , Zonal staff and CISF under the direct supervision of Executive Engineer Enforcement where various irregularities were found on spot including the plaintiff being found dishonestly abstracting energy from the direct line. Defendant on its part has further stated that not only this the connected load was much in excess to the capacity and sanctioned load of 90 KW and initial load of 800 jhuggis could not have been taken at the spot which was also informed to the Executive Engineer Enforcement. It has been further informed that three industrial units were found using connected load of 8 KW, 15.2 KW and 19.230 KW and after processing the same bill of Rs.16,68,618/ was served upon the plaintiff with due dated 15.06.2000. The meter was removed from the site and the main line was disconnected. It has been further stated that the bill was thereafter processed and modified thereby revising a demand of Rs.7,43,552.70 paise. Though it may be seen that the defendant on its part has failed to lead any evidence in defence despite opportunity, but it is settled preposition of law that for proving its entitlement the plaintiff has to stand on its own leg and not on the weakness on other side. Reliance placed on 2007 (3) CCC page 353 titled Ram Chandra S Mahajan Vs Damodar T Tanksale . In view of the 20 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power aforesaid backdrop the court has to analyze the oral and documentary evidence on record. First and foremost it may be seen that the plaintiff has failed to place on record any original documents or prove the same in accordance with law. Photocopies shown as mark A to D copies of alleged letters which plaintiff has written to defendant informing them about some theft being carried out on the spot by various people. However it may be sen that none of these letters have been proved on record , even the witness summoned by the plaintiff namely PW2 and 3 have clearly stated that same is not available in their official record. For proving this issue the court has to see as to whether on the basis of record the plaintiff has been able to successfully show on record that the impugned demand of Rs.7,43,552.70 paise was illegal ,unjust or unwarranted or has been raised by the defendant without any basis which can only be done subject to law of land as discussed in preceding paras more particularly in view of pronouncement of law laid down in 110(2004) DLT 633 titled Sarjiwan Singh Vs DVB(Supra). Admittedly neither the plaintiff has prayed for declaration declaring the impugned inspection report dated 30.05.2000 or its consequent misuser demand vide bill dated 05.09.2000 for sum of Rs.7,43,552.70 paise as null , void and malafide nor appropriate court fees 21 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power in terms of section 7 (iv) (c)of court fees Act has been paid. Plaintiff has utterly failed to act despite clear and categoric stand of defendant in Written Statement and the opportunity been granted by the court in its order dated 11.08.09 and in view of the aforesaid the court is of the considered opinion that the testimony of PW1 cannot be legally considered in evidence on this issue in the absence of the requisite legal steps and the plaintiff cannot be held to have discharged its onus at least to the extent of preponderance of probabilities. In view of the aforesaid the court is of the considered opinion that the plaintiff has utterly failed to prove this issue even to the extent of preponderance of probabilities, this issue is accordingly decided against the plaintiff and in favour of the defendant . ISSUE No 2 & 3 (2) Whether the plaintiff is entitled to decree of permanent injunction ? OPP (3) Whether the plaintiff is entitled to decree of mandatory injunction ? OPP The onus of proving these two issues was on the plaintiff . These two issues are tried together since these issues are related to entitlement of the plaintiff to permanent and mandatory injunction whereby which the plaintiff has prayed for restraining the defendant its officials, servants from realising the payment of impugned bill of 22 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power Rs.7,43,552.70 paise in respect of K. No.003530, meter No.9901350 installed at JJ Cluster Vijay Ghat Pusta Bagichi Tejpal Delhi and directing the defendant to restore the electricity connection /CT meter in respect of K. No.003530, meter No.9901350 installed at JJ Cluster Vijay Ghat Pushta Bagichi Tejpal Delhi . Further more the evidence on these issues is common and as such these issues are taken up together for adjudication. Now decision on these issues are wholly dependent on decision of the court on issue No1. Admittedly the plaintiff has failed to prove on record that the alleged inspection dated 30.05.2000 alongwith impugned bill for sum of Rs.7,43,552.70 paise was either illegal, unjust, unwarranted or null and void and as such the plaintiff cannot be said to be entitled to even consequential relief of perpetual and mandatory injunction claimed in the suit in the absence of main relief of declaration being prayed for and adjudicated upon . Plaintiff has utterly failed to act despite the clear and categoric stand of defendant taken in the written statement and opportunity to seek necessary relief of declaration being granted by the court vide its order dated 11.08.09 and in view of the aforesaid the court is of the considered opinion that the testimony of PW1 cannot be legally considered in evidence on these two issues which relates to entitlement of the plaintiff 23 Civil Suit No.1027/06/00 Abdul Zabbar Vs BSES Yamuna Power in the absence of required legal steps being taken and as such the plaintiff cannot be held to have discharge its onus atleast to the extent of preponderance of probabilities. Accordingly these issues are decided against the plaintiff and in favour of the defendant .
RELIEF Relief In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the plaintiff has utterly failed to prove its case even to the extent of preponderance of probabilities The plaintiff is not entitled to any discretionary relief under Specific Relief Act, 1963 from this court . Suit of the plaintiff is accordingly dismissed , with no order as to costs. File be consigned to record room after due completion .
(MUKESH KUMAR GUPTA)
DATED 05.03.2010 SCJ/RC(NORTH)DELHI
ANNOUNCED IN THE OPEN COURT .
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