Delhi District Court
Smt. Sunita vs North Delhi Power Ltd on 31 March, 2018
IN THE COURT OF VIPLAV DABAS,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
New Suit No.596791/2016
Smt. Sunita
W/o Sh. Rajinder Kumar
R/o H25, Maju Ka Tila
Aruna Nagar
Delhi110054. .........Plaintiff
Versus
1. North Delhi Power Ltd
Grid Substation Building
Hudson Lines, Kingsway Camp
Delhi110009
2. Ms.Beena
D/o Sh. Pooran Chand
R/o H25, Majnu Ka Tila
Aruna Nagar
Delhi110054. ...........Defendant
Date of institution of suit : 02.05.2007
Date of pronouncement of Judgment : 31.03.2018
Suit for Declaration, Mandatory and Permanent Injunction
JUDGMENT
1. The case of the plaintiff is that she is the owner of the property No. Sunita vs NDPL Suit No.596791/2016 Page 1 of 29 H25, Majnu Ka Tila, Aruna Nagar, Delhi110054(herein after referred to as 'suit property') by virtue of inheritance from her parents. It is averred that the mother of the plaintiff in her life time had inducted one tenant namely Sh. Govind(since expired) in respect of one room(as shown in red colour in the site plan) in the suit property and after the death of said tenant Govind his wife Smt. Somwati became the tenant in the suit premises. It is further averred that eviction petition under Section 14(1)
(e) of DRC Act was filed by the plaintiff and his father(since deceased) in respect of the said room and the said eviction petition was decreed in favour of the plaintiff vide Order dated 03.08.2004, however, Smt. Somwati did not vacate the suit premises despite the order of eviction. It is further averred that thereafter the plaintiff filed the execution petition in respect of the said eviction order and then only plaintiff got the possession of the said room with the help of bailiff and police on 25.07.2005.
2. It is further averred that one electricity meter bearing K. No. 31200132413V was installed in the name of said tenant namely Govind in the said tenanted room and the plaintiff approached the defendant No.1 for removing the said electricity meter or to transfer the said meter in her name but the defendant No.1 did not take any action for removing the said meter. It is stated that thereafter plaintiff had written a letter dated 16.01.2006 thereby requesting the defendant No.1 for transfer of the aforesaid electricity meter in her name. It is further averred that Sunita vs NDPL Suit No.596791/2016 Page 2 of 29 defendant No.2 is in illegal and unlawful possession of the adjacent room and got the electricity connection in her name with connivance with the officials of defendant No.1. It is averred that defendant No.2 who is a stranger in the suit property has got no right, title or interest in the suit premises. It is further averred that the plaintiff would not be able to use and enjoy the same room which is in her possession since 25.07.2005 as the defendant No.2 is creating nuisance in the said area by putting the cots in front of the door of the said room. It is stated that despite several request and letter dated 16.01.2006 the defendant No.1 did not bother to cancel the said electricity connection which has been illegally transferred in the name of defendant No.2. It is stated that vide order dated 14.02.2008 the defendant No.1 was directed to restore the electricity connection but the defendant No.2 in collusion with the defendant No.1/NDPL got the said electricity meter shifted from the room shown in red colour in the Site Plan (which was under the tenancy of Govind(since deceased) to another room which is in possession of Defendant No.2 (shown in green colour in the Site Plan).
3. It is further averred that the Defendant No.2 has got no right, title or interest in respect of any portion of the property bearing No.H25, Aruna Nagar, Majnu Ka Tila, Delhi and the Defendant No.2 knows it very well that she has got no right, title or interest in any manner whatsoever in respect of the property bearing No.H25, Majnu Ka Tila, Aruna Nagar, Delhi but even then the Defendant No.2 with malafide Sunita vs NDPL Suit No.596791/2016 Page 3 of 29 intention has been harassing the Plaintiff and her family members on one pretext or the other. It is further stated that because of the said continuous harassment, the Plaintiff is not in a position to use and enjoy the said room being shown in red colour in the site plan, that Defendant No.2 and her associates have been putting obstacle in front of the door of the said room so that the Plaintiff would not be able to use and enjoy the said room which is in possession of the Plaintiff since 25.07.2005, being the lawful owner thereof and that the Defendant No.2 is also intentionally and deliberately creating nuisance in the said area by putting the cots in front of the door of the said room in the site plan, due to which, the Plaintiff herein was forced to file a suit before the Ld. Civil Court against the Defendant No.2 herein which is still pending adjudication. The cause of action is stated to have arisen against the defendants when the Hon'ble High Court of Delhi was pleased to grant liberty to the plaintiff vide order dated 11.08.2006 to file the present suit and hence the present suit has been filed seeking the relief of declaration thereby declaring that the said transfer of Electricity Connection/Meter No. 31200132413V made by the defendant No.1/NDPL in the name of the defendant no.2 herein, is illegal and unlawful as well as the relief of mandatory injunction, thereby directing the defendant No.1/NDPL to remove the electricity connection no. 31200132413V which is now installed/shifted in the room as shown in Green Colour to the room as shown in Red Colour in the site plan, in respect of property No. H25, Majnu Ka Tila, Aruna Nagar, Delhi 110054 and also directing the defendant No.1/NDPL to transfer/change Sunita vs NDPL Suit No.596791/2016 Page 4 of 29 the said electricity connection in the name of plaintiff which is installed in the portion as shown in Green Colour in the site plan along with relief of permanent injunction, thereby restraining the defendant No.2 from tampering the Electricity Connection No. 31200132413V in any manner whatsoever, and also restraining from creating any interference in any manner whatsoever in respect of use of said electricity connection as well as use and enjoyment of the said room of the plaintiff in which the electricity connection and meter were initially installed.
4. Summons were issued to defendant No.1 and 2, upon which separate written statements were filed on behalf of defendant No.1 and defendant No.2, wherein they have denied the averments made in the plaint.
5. The defendant No.1 stated in the written statement that the plaintiff has not come to the Court with clean hands and supressed the material facts from the Court as the connection was transferred after completion of all required commercial formalities and the plaintiff has not made any objection at the time of changing of the connections in favour of Sh. Govind and denied that there is any collusion between the defendant No.2 and the officials of defendant No.1.
5.1 It is further stated that there is no cause of action in favour of the plaintiff as the plaintiff has neither applied for name change or completed the commercial formalities as required under New Supply Code 2007 for Sunita vs NDPL Suit No.596791/2016 Page 5 of 29 name change. It is further stated that plaintiff is not entitled to ask the relief from the Hon'ble Court under Section 41(h) of Specific Relief Act. Further defendant No.1 has denied the contentions of 1st Part of para No.1 and stated that these paras are related to the plaintiff and defendant No.2. Defendant No.1 has denied that under the garb of said restoration order the defendant No.2 in collusion with the defendant No.1, got the said electricity meter shifted from one room to another room. Defendant No.1 has further denied that the said electricity meter was installed illegally and unlawfully. It is stated that as per record connection in question was transferred in the name of Govind after submission of required documents/completion of commercial formalities. It is further stated that the subject connection will be further changed as per rule as well as after clearance of outstanding dues against the connection in question but the plaintiff has not furnished any document to show that she has applied for change of name as per rule. It is further stated that there is no cause of action in favour of the plaintiff and against defendant No.1.
6. Defendant No.2 has denied the averments made in the plaint that Defendant No.1 has illegally and unlawfully transferred the connection in the name of Defendant No.2 in collusion with her and her associates. 6.1. It is stated in the written statement that the malafide intentions of the plaintiff are apparent on the face of the record. It is stated that the electricity meter in question has already been transferred in the name of defendant No.2 by the defendant No.1 following the legal procedure. It is Sunita vs NDPL Suit No.596791/2016 Page 6 of 29 stated that the defendant No.2 has also completed the formalities for the shifting of the said electricity meter in the premises under her possession. It is stated that defendant No.1 could not remove the said meter without the illegal obstruction caused by the plaintiff. It is stated that the suit of the plaintiff is without any cause of action and liable to be dismissed as per the provisions of Order 7 Rule 11 CPC. It is stated that merely because plaintiff claims to have taken the possession of the room in which the electricity meter in question was installed she cannot claim the transfer of the said meter in her name. It is stated that the transfer of the electricity meter can be done only after a NOC issued by a registered consumer. It is stated that defendant no.2 got the meter transferred after obtaining a valid NOC from the previous consumer and now without the NOC of the defendant No.2 the electricity meter in question cannot be transferred in a legal manner. It is stated that the bills of the meter in question are being regularly paid by defendant No.2. 6.2. It is further stated on behalf of defendant No.2 in the written statement that the present suit is a counter blast to the suit No. 1153 of 2006 filed by the defendant No.2 along with the actual owner of the property No. H25, Majnu Ka Tilla, Aruna Nagar, Magzine Road, Delhi 110054 against the plaintiff, her husband and the defendant No.1 in the present suit. It is stated that the plaintiff has filed a chain of false cases against the defendant No.2 and an earlier suit No. 1186/1989 was dismissed by the then Ld. Civil Judge on 05.04.1994 and the appeal against the said dismissal was also dismissed by the then Ld. ADJ on Sunita vs NDPL Suit No.596791/2016 Page 7 of 29 13.03.2003. It is stated that as per own admission of the plaintiff her Civil Writ Petition was also dismissed by the Hon'ble High Court of Delhi. It is stated that MCA No. 11/2008 was also filed and withdrawn against the order dated 14.02.2008. It is stated that prior to the present suit, suit No. 112/2006 was filed on 25.11.2005 and much prior to filing of suit No. 112/2006 the electricity meter in question was transferred in the name of defendant No.2 by following legal procedure which was within the knowledge of the plaintiff. It is stated that the suit of the plaintiff is hit by the provisions of Order 2 Rule 2 CPC.
6.3. It is stated that the plaintiff has failed to disclose in the present suit that which legal right of the plaintiff got infringed or violated. It is stated that plaintiff also failed to disclose what hardship she is suffering and she is deprived of which rights. It is stated that the suit of the plaintiff is bad for non joinder of necessary party in the sense that plaintiff failed to implead the earlier registered consumer and also the actual owner of the property in the array of parties as the defendant. It is stated that plaintiff is making claims with regard to the ownership of the property against the judicial record. It is stated that plaintiff has no documents or decree in her favour on the basis of which she can claim herself to be the owner of the property. It is stated that plaintiff is in illegal possession of the suit property as the actual owner of the same is Smt. Laxmi. It is stated that suit of the plaintiff bearing No. 1186 of 1989 and an appeal R.C. No. 667 of 2000 have already been dismissed by the Court of law which denied the possession of the plaintiff in the suit property. It is further stated that Sunita vs NDPL Suit No.596791/2016 Page 8 of 29 on 28.09.2005 the plaintiff forcibly attempted to dispossess the defendant No.2 from the premises under her possession and a complaint case in this regard was filed bearing no. 861/1/06 in the criminal Court. It is stated that the plaintiff is seeking the relief which cannot be granted as no electricity connection can be transferred in the name of plaintiff without the NOC from the registered consumer.
6.4. It is further stated that the plaintiff is making ridiculous claims that she showed the ownership paper to the defendant No.1 without having any such documents in her favour. It is further stated that the plaintiff wants to make the defendant No.1 to do an impossible act which is also illegal as defendant No.1 cannot transfer the said connection in the name of plaintiff without the NOC of the registered consumer. It is stated that plaintiff has no privity of contract with defendant No.1. It is stated that it is defendant No.2 who is the registered consumer of the electricity meter connection NO. 31200132413V and having privity of contract with defendant No.1. It is further stated that the connection was changed in the name of defendant No.2 by following proper procedure by the defendant No.1.
6.5. It is further stated on behalf of defendant No.2 that the electricity connection in question was transferred in the name of defendant No.2 in February 2005 itself much before the alleged possession of said room in the site plan allegedly filed by the plaintiff. It is stated that on the day when the meter was transferred the plaintiff was not in the alleged possession of the alleged room. It is stated that the said meter connection Sunita vs NDPL Suit No.596791/2016 Page 9 of 29 was not in the name of plaintiff and the plaintiff has nothing to do with the said electricity connection.
6.6. It is further stated that defendant No.2 has never taken electricity from any other meter or directly from the pole other then the one in her own name.
6.7. It is further stated that it is the defendant No.2 who has been subjected to harassment by the plaintiff by filing false suit one after another against defendant No.2. It is stated that the character of plaintiff becomes crystal clear from the fact that the plaintiff even attempted to disown her real sister for the greed of property.
6.8. It is further stated that defendant No.2 has done nothing wrong and is residing in the property in question with permission of Smt. Laxmi the actual owner of the property and not a stranger to the property. It is further stated that the plaintiff has no right to get the electricity connection in question in her name. It is stated that it is the plaintiff who is trying to take advantage of her own wrongs as at first she did not allow the removal of the said meter and now raising a illegal demand of getting the said meter transferred in her own name. It is further stated that the meter in question is in the name of defendant No.2 who cannot be restrained from consuming the electricity from the said meter and it is the plaintiff who wants to temper and misuse the said electricity meter and wants to enjoy the electricity without having to pay for the same. It is stated that the bills of the said electricity connection are being regularly paid by defendant No.2.
Sunita vs NDPL Suit No.596791/2016 Page 10 of 296.9. It is further stated that the plaintiff is speaking against the record as the suit No. 1153/2006 was filed by the defendant No.2 and Smt. Laxmi against the plaintiff, her husband and defendant No.1 because the plaintiff and her husband were causing obstructions in the removal of said electricity meter and supply of electricity in the name of defendant No.2 and inspite of receiving all charges and completion of all formalities in December 2005 itself the defendant No.1 had failed to shift the said meter and provide electricity to the premises under possession of and in ownership of Smt. Laxmi and defendant No.2 until the order dated 14.02.2008. It is stated that plaintiff did not even allow the officials of the NDPL to take reading from the said electricity meter inspect of the order of Hon'ble Court on 25.04.2007 in Suit No. 1153/06 to the effect that the officials of the NDPL should be allowed to check the meter reading as and when they so desire. It is further stated that the defendant No.2 is the registered consumer of the said electricity connection and cannot be prevented from consuming electricity from the said meter. It is stated that the charges of the meter and connection installation were paid by the defendant No.2 and the plaintiff in her mischievous design wants to gain at the expenses of defendant No.2. It is further stated that the plaintiff has not spent a single penny for the said connection and therefor she is not entitled for the said electricity meter.
6.10. It is further stated that the mandatory injunction as claimed by the plaintiff cannot be granted as the same is barred by law as without NOC of registered consumer the defendant No.1 has no right or authority to Sunita vs NDPL Suit No.596791/2016 Page 11 of 29 change/transfer the said electricity meter in the name of plaintiff. It is submitted that this relief is discretionary and cannot be granted to the plaintiff who is claiming the same illegally. It is further submitted that the plaintiff is also not entitled to decree of permanent injunction. It is submitted that it is ridiculous to claim that the defendant No.2 be restrained from the use of the said electricity meter. It is stated that it was the plaintiff who was in position to temper the said meter as she did not even allowed the NDPL to inspect the said meter inspite of Order dated 25.04.2007. It is submitted that plaintiff should be restrained from tempering or using the said meter in any manner. It is submitted that the later part of prayer clause C is subject matter of suit No. 112/2006 filed by plaintiff herself, therefore the relief claimed by the way of amended prayer clauseD of mandatory injunction cannot be granted to the plaintiff and the defendant No.1 cannot be directed to remove the said electricity connection from the room (shown in green colour) to the room (shown in red colour) in respect of suit property.
7. Replication was filed on behalf of plaintiff to the written statement of defendant No.1, thereby denying the averments made in the written statement and reiterating the facts made in the plaint.
8. Thereafter, matter was fixed for framing of issues. The issues in this case were framed by Ld. Predecessor of this Court on 14.02.2008. The issues are reproduced hereunder for ready reference: Sunita vs NDPL Suit No.596791/2016 Page 12 of 29
1. Whether the suit is barred by the provisions of Order 2 Rule 2 of Code of Civil Procedure, 1908?OPD2
2. Whether the suit suffers from nonjoinder of necessary parties? OPD2
3. Whether the plaintiff is entitled to a decree of declaration as prayed for?OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?OPP
5. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for?OPP
6. Relief.
After framing of issues, the matter was fixed for plaintiff's evidence.
9. An application under Order 6 Rule 17 CPC was filed on behalf of plaintiff for amending the plaint, which was allowed vide order dated 02.08.2010 and the amended plaint was filed on 17.08.2010 and thereafter the matter was fixed for filing of amended written statement. Amended written statements were also filed on behalf of defendant No.1 & 2 to the amended plaint. Thereafter the matter was fixed for framing of additional issues.
10. After amendment of plaint and written statements, the following issues were reframed on 09.03.2011:
1. Whether the suit is barred by the provisions of Order 2 Rule 2 of Code of Civil Procedure, 1908?OPD2
2. Whether the suit suffers from nonjoinder of necessary parties?
Sunita vs NDPL Suit No.596791/2016 Page 13 of 29OPD2
3. Whether the plaintiff is entitled to a decree of declaration as prayed for?OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?OPP
5. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed in prayer (b)?OPP
6. Whether the plaintiff is entitled for decree of of mandatory injunction, as prayed in prayer (d)?OPP
7. Relief.
Evidence
11. Plaintiff in order to prove her case got examined herself as PW1, Sh. Ravi Shanker Kumar(JJA, Record Room, Civil, Tis Hazari Courts, Delhi) as PW2 and (summoned witness) Sh. S.S. Negi, Section Officer from NDPL office, Shakti Nagar, New Delhi as PW3.
11.1 PW1 has relied upon the documents the site plan(Ex.PW1/1), copy of order dated 03.08.2004 (Ex.PW1/2), copy of order dated 21.10.2005(Ex.PW1/3), copy of letter issued by NDPL (Ex.PW1/4), legal notice dated 14.02.2006(Ex.PW1/5), postal receipts(Ex.PW1/6), UPC Card(Ex.PW1/7), acknowledgment card (Ex.PW1/8), the Will dated 19.03.1984(Ex.PW1/9), copy of the bill(Ex.PW1/10). (all the above mentioned documents are marked in the testimony of PW1). PW1 was duly cross examined on behalf of both the defendants and discharged.
11.2 PW2 was the summoned witness, who brought the summoned Sunita vs NDPL Suit No.596791/2016 Page 14 of 29 record i.e. judicial file no. E184/2000 of case titled as Babu Rao vs Somwati & ors, decided on 03.08.2004 bearing Goshwara no. 307/RC and another judicial file of petition no. M16/2005 of case titled as Babu Rao vs Somwati & Ors decided on 21.10.2005, bearing Goshwara no. 268/RC and after comparing the certified copy of order and judgment dated 03.08.2004 exhibited the same as Ex.PW2/1(Colly) and copy of order and judgment dated 21.10.2005 as Ex.PW2/2(Colly) and copy of Will dated 13.03.1984 as EX.PW2/3. This witness was cross examined on behalf of defendant No.2 and defendant No.1 did not cross examine him despite opportunity.
11.3 PW3 brought the summoned record in connection with electricity meter no. 31200132413(Ex.PW3/1(Colly) and deposed that earlier the electricity connection was in the name of Sh. Govind Singh. He further deposed that Smt. Beena Devi, D/o Sh. Pooran Chand, on 04.02.2005 had applied for transfer the said electricity meter in her name. He deposed that on that day there was a due of Rs. 1210/ and after that the said electricity connection was changed in her name. He deposed that there is no eviction order against the tenant Govind Singh, on record which was passed by Ld. Rent Controller on 03.08.2004 in respect of the property where the said electricity meter was installed. This witness was not cross examined on behalf of both the defendants despite opportunity.
12. Thereafter, plaintiff's evidence was closed on 27.07.2016 upon recording of statement of Ld. Counsel for plaintiff to this effect and the Sunita vs NDPL Suit No.596791/2016 Page 15 of 29 matter was fixed for defendant's evidence.
13. In defendant's evidence on behalf of defendant No.1, vide separate statement, Ld. Counsel appearing on behalf of defendant No.1 adopted the statement of Sh. S.S. Negi (Section Officer) for NDPL who was examined as PW3 as defendant's evidence. Thereafter defendant's evidence on behalf of defendant No.1 was closed on 23.11.2016.
14. In defendant's evidence on behalf of defendant No.2, Smt. Beena was examined as DW1. She relied upon the documents i.e. certified copy of registered Will dated 04.03.1985(Ex.D2/DW1/A), certified copy of registered receipt dated 04.03.1985(Ex.D2/DW1/B), GPA dated 17.03.2003(Ex.D2/DW1/C), Agreement to Sell dated 17.03.2003(Ex.D2/DW1/D), receipt dated 17.03.2003(Ex.D2/DW1/E), GPA dated 20.03.2003(Ex.D2/DW1/F), Agreement to sell dated 20.03.2003(Ex.D2/DW1/G), receipt dated 20.03.2003 (Ex.D2/DW1/H), affidavit dated 20.03.2003(Ex.D2/DW1/I), report of reconnection of electricity(Ex.D2/DW1/K), certified copy of judgment of Suit No. 1035/2014(Ex.D2/DW1/L), certified copy of judgment of Suit No. 129/2013(Ex.D2/DW1/M), copy of demand notice and receipt of payments (mark Y(colly) and copy of order in respect of Suit No. 1153/2006(mark Y1).
DW1 was cross examined at length. In her cross examination, she stated that the site plan mark A is incorrect. She denied that she is in Sunita vs NDPL Suit No.596791/2016 Page 16 of 29 possession of two rooms, one of which she is using as kitchen. She denied that she has not filed any site plan because the site plan mark A is true and correct. She stated that it is correct that the remaining portion of the property bearing no. H24, Majnu Ka Tila, Aruna Nagar, Magazine Road, Delhi110054 is in the possession of plaintiff. She deposed that Lakshmi Devi is the owner of the portion of the property bearing no. H 25, Majnu Ka Tila, Aruna Nagar, Magazine Road, Delhi110054, in which she is in possession. She stated that Lakshmi Devi is the owner of whole of the property bearing No. H25, Majnu Ka Tila, Aruna Nagar, Magazine Road, Delhi110054. She stated that it is correct that Smt. Lakshmi Devi has never executed any document in her favour in respect of property bearing no. H25, Majnu Ka Tila, Aruna Nagar, Magazine Road, Delhi110054. She deposed that Smt. Lakshmi Devi authorised her to install electricity meter in her name in the premises under her possession. She deposed that Smt. Lakshmi Devi has given affidavit in her favour which she had filed with NDPL.
15. After recording of evidence of defendant No.2, evidence on behalf of defendant No.2 was closed on recording of statement of Ld. Counsel for defendant No.2 to this effect on 23.11.2016 and the matter was fixed for final arguments.
16. Arguments of the Ld. Counsels for the parties were heard at length and the record was carefully perused by this Court.
Sunita vs NDPL Suit No.596791/2016 Page 17 of 2917. Issuewise findings : Issue No.1: Issue No.1 is reproduced for the sake of clarity as follows:
1. Whether the suit is barred by the provisions of Order 2 Rule 2 of Code of Civil Procedure, 1908?OPD2 Onus to prove this issue was cast upon the Defendant No.2 who averred in Preliminary Objection that a Suit bearing No.112/2006 was filed by the Plaintiff in the year 2006 and the present suit was filed in the year 2007. It is further stated that the electricity meter was transferred in the name of the Defendant No.2 by following the legal procedure much prior to the filing of Suit bearing No.112/2006 and the said fact was within the knowledge of the Plaintiff but she did not utter even a single word about the allegations raised in the present suit despite knowledge of same in the earlier suit. It is further averred that suit of Plaintiff is thus barred under Order 2 Rule 2 CPC. It is deposed by Defendant No.2 in her affidavit in evidence Ex.D2/DW1/X in Paragraph8 that the issue involved in the present suit was not raised in the Suit No.129/13 though the same was filed prior to the present suit on 24.11.2005 but subsequent to the arising of Cause of Action of this suit.
Perusal of certified copies of the Plaint of Suit bearing No.112/06 exhibited as Ex.PW1/DX1 duly admitted by PW1 in her cross Sunita vs NDPL Suit No.596791/2016 Page 18 of 29 examination and the judgment of the suit bearing No. 129/13 exhibited as D2/DW1/M shows that the said suit was filed seeking Permanent Injunction order for restraining the Defendant No.2 and other persons from interfering in the enjoyment of the room involved in this suit. Perusal of the said documents further shows that the allegations giving rise to cause of action are that Defendant No.2 of this case along with others had been interfering in enjoyment of the room involved in this case by putting cots, motorbikes etc on the door of the room.
Perusal of Paragraph18 of the Amended Plaint in this suit and the Plaintiff's affidavit in evidence reveals that similar allegations of harassing the Plaintiff by interfering in the enjoyment of the room shown in red colour in Site Plan by putting cots on the front door of the said room, have been made. It is further evident from Prayer Clause (C) of the Amended Plaint that permanent injunction has been sought against the Defendant No.2 thereby restraining her from tampering the electricity connection and creating any interference in respect of use of said electricity connection as well as enjoyment of the room.
It is clear from the aforesaid facts that present suit is filed on the basis of almost the same allegations and cause of action on which earlier two suits were filed prior to this suit.
18. Perusal of Bill MarkJ relied upon by the Plaintiff in her deposition shows that bill pertains to the subject meter with bill date as 1 st August 2005 and name of the consumer is mentioned as Beena Devi i.e. the Sunita vs NDPL Suit No.596791/2016 Page 19 of 29 Defendant No.2. It shows that the connection had been transferred in the name of Defendant No.2 by August, 2005 by Defendant No.1. Furthermore, it is stated in Para18 of the Amended Plaint that the cause of action for filing the present suit occurred on 25.07.2005 when possession of the room taken by her with the help of Bailiff. Perusal of crossexamination of Plaintiff i.e. PW1 conducted on behalf of Defendant No.1 shows that PW1 testified that the connection in question was transferred in the name of Defendant No.2 in the year 2004. It follows from the aforesaid testimonies that Plaintiff was aware of the transfer of the subject connection by the year 2005 by all means and bundle of facts giving rise to the right of the Plaintiff to file present suit existed since that time.
19. Perusal of testimony of PW1 further shows that she deposed that she had applied for connection in her name and she received one letter from Defendant No.1 (NDPL) dated 08.06.2005 MarkX1 which mentions that Defendant No.1 had asked for clearance of the dues Smt.Herpyari, Smt.Asha and Smt.Veena for grant of new connection and that she did not clear the dues of Harpyari. This testimony shows that she / Plaintiff was not granted the electricity connection in the year 2005 and thus cause of action for depriving the Plaintiff from enjoyment of room by not providing electricity connection against the NDPL and Defendant No.2 had commenced at that time itself i.e. in the year 2005.
It is worthwhile to mention that electricity is a necessary amenity Sunita vs NDPL Suit No.596791/2016 Page 20 of 29 for enjoyment of the property and this fact is known to one and all. Keeping in view the said fact, it can be reasonably expected from any ordinary person that he would make a claim and seek relief regarding the subject electricity connection pertaining to his room along with the suit filed by him seeking injunction for restraining the Defendant No.2 from creating, hindrances in enjoyment of the property i.e. the room to which the subject electricity connection belongs. But in the present case, it is evident that the Plaintiff filed two suits prior to this suit and did not claim the relief despite knowing the facts giving rise to present suit at the time of filing of those earlier suits for ensuring the hurdle free enjoyment of the same room as is involved in this suit.
20. It is deposed in Para22 of Affidavit in evidence by PW1 that Hon'ble High Court granted liberty to file the present suit. Record shows that Plaintiff did not file the copies of order of High Court granting leave to file the suit. It shows that Plaintiff omitted to sue in respect of the present claim along with the earlier suits. It is further evident that the leave of the Court was also not taken at the time of filing of this suit to sue in respect of claim omitted in earlier suit which is necessary requirement of law. It, thus, emerges from the aforesaid discussion that present suit is barred under Order 2 Rule 2 and 3 CPC. Accordingly this issue is decided against the plaintiff and in favour of defendants.
Issue No.2: Sunita vs NDPL Suit No.596791/2016 Page 21 of 29
21. Issue No.2 is reproduced for the sake of clarity as follows:
2. Whether the suit suffers from nonjoinder of necessary parties?OPD2 Onus to prove this issue was cast upon the Defendant No.2 who has taken a Preliminary Objection that suit is bad for non--joinder of necessary parties as the Plaintiff failed to implead the earlier registered consumer and also the actual owner of the property.
Perusal of the Plaint shows that present suit has been filed seeking the relief of mandatory injunction thereby directing the Defendant No.1 to transfer / shift the subject electricity connection and meter in the name of Plaintiff to her room from that of the Defendant No.2 who had got it transferred / shifted in her name from that of Sh.Govind who was tenant in the room shown in red colour in the Site Plan. It is, thus, clear that the present suit does not involve any right in respect of the immovable property for which owner is required. It is also evident that the earlier registered consumer i.e. Sh.Govind has admittedly expired and his LRs are also not made party in this suit and they were evicted from the room on 25.07.2005. Considering that Defendant No.1 is the Power company authorised to grant or cancel or shift the electricity connection and meter and that the earlier registered consumer or his LRs can have no say in the grant or restoration or cancellation or shifting of electricity connection and meter as they are already evicted from the said room, it can be said that they are also not required as parties in a suit like the present one.
Sunita vs NDPL Suit No.596791/2016 Page 22 of 29Thus, keeping in view the nature of suit and relief sought, this court is of the opinion that actual owner of the suit property and the previous registered consumer or his LRs are not necessary parties as neither their rights are to be affected in case of passing of decree in this suit nor they would be required for effective execution of the decree passed if any in this suit. It thus follows that in the present facts, it cannot be said that suit is bad for nonjoinder of necessary parties. Accordingly this issue is decided in favour of plaintiff and against the defendants.
Issue No.3, 4 and 5 :
22. Considering the factual matrix, this Court deems it proper to decide the issue no. 3,4 & 5 together as they are interconnected.
Issue No.3, 4 and 5 are reproduced for the sake of clarity as follows:
3. Whether the plaintiff is entitled to a decree of declaration as prayed for?OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?OPP
5. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for ?OPP Onus to prove these issues was cast on the Plaintiff who filed the present suit on the averments that she is the owner of the suit property and Sh.Govind was her tenant who was consumer of the subject electricity connection and the Defendant No.2 got the subject electricity connection transferred in her name and the meter shifted to her room in Sunita vs NDPL Suit No.596791/2016 Page 23 of 29 connivance with officials of defendant No.1.
Perusal of record shows that Plaintiff summoned Sh.Ravi Shankar Kumar, JJA, Record Room as PW2 who proved the order and judgment dated 03.08.2004 exhibited as Ex.PW2/1 and order and judgment dated 21.10.2005 exhibited as Ex.PW2/2. Perusal of these orders / judgments reveals that eviction order was passed against the LRs of deceased Govind and Objection filed by them and Smt.Laxmi Devi were also dismissed by the court in respect of the room shown in red colour in the Site Plan.
It is established from the aforesaid orders / judgments that Sh.Govind and his family was a tenant in the room in which subject electricity connection and meter were installed. It is also clear from the testimonies of PW1 and Defendant No.2 that said electricity connection was registered in the name of Govind prior to its transfer in the name of Defendant No.2.
23. Record further shows that the Plaintiff summoned Sh.S.S. Negi as PW3 who brought the record pertaining to the subject connection exhibited as Ex.PW3/1 and established that Defendant No2 had applied on 04.02.2005 for transfer of the subject electricity meter in her name which was earlier in the name of Sh.Govind Singh. PW2 further deposed that there were dues of Rs.1210/ and after that said electricity connection was changed in her name. He further deposed that the eviction order passed by the Ld. Rent Controller on 03.08.2004 against Govind Singh in Sunita vs NDPL Suit No.596791/2016 Page 24 of 29 respect of the property where the subject meter was installed is not available on record.
Perusal of record (Ex.PW1/3) shows that a sum of Rs.1210/ was paid on 28.01.2005 in respect of aforesaid dues and no objection was given by Smt.Somwati, W/o Sh.Govind on an affidavit in favour of Defendant No.2 regarding the transfer of the subject connection in her name.
It is further evident from the record that PW3 was neither cross examined by the Defendants nor by the Plaintiff. It shows that the Plaintiff admitted the correctness of the documents brought by PW3 as well as the fact that the electricity connection was transferred after complying all the due formalities and nothing illegal had been done by D1 in doing so.
It is, thus, established that Defendant No.1 changed the subject electricity connection in the name of Defendant No.2 on 28.01.2005 after due compliance of all the formalities. It is pertinent to mention that the Plaintiff could have crossexamined PW3 after seeking permission of the court if she considered that some other formalities should have been followed by the Defendant No.1 or that the procedure adopted by Defendant No.1 was not proper or legal but Plaintiff did not do so which suggests that Plaintiff approved of the procedure and formalities followed by Defendant No.1 in changing the name.
24. Record reflects that testimony of Plaintiff to the effect that she got Sunita vs NDPL Suit No.596791/2016 Page 25 of 29 the room on which the subject meter was initially installed vacated on 25.07.2005 has gone unrebutted as no suggestion to negate the same was put to PW1 thereby amounting to admission of this fact on behalf of Defendants. So, it is established that the Plaintiff took possession of the room on 25.07.2005. It is further evident that Defendant No.2 testified in crossexamination that earlier the meter was in the name of Govind and, therefore, it has been transferred in her name on 28.01.2005 which corroborates the testimony of PW3 according to which the name was changed on 28.01.2005. It follows from the above stated testimonies that Defendant No.2 had got the electricity meter transferred in her name prior to the eviction after compliance of all the formalities. So, it cannot be said that Defendant No.2 fraudulently got the electricity connection transferred in her name after the Plaintiff has taken possession of the room where the subject meter was initially installed i.e. shown in red colour in Site Plan.
25. Perusal of testimony of PW1 shows that the she deposed that subject connection was transferred in the name of Defendant in the year 2004 and that no objections were made in the year 2004. She deposed further that she visited NDPL office and wrote several letters but does not remember the date, month and year of the same and that no such letter has been exhibited with regard to the same. This testimony shows that Plaintiff never raised objection regarding the transfer of name immediately after coming to know about the same which indicates that Sunita vs NDPL Suit No.596791/2016 Page 26 of 29 Plaintiff was satisfied with the said transfer of name and the procedure followed in doing the same.
26. PW3 further deposed in her crossexamination that she had applied for transfer of the connection in her name and had also completed the commercial formalities for transfer of connection in her name. She further admitted that she received a letter MarkX1 dated 08.06.2005 from NDPL asking her to clear the dues of Harpyari, Asha and Veena for grant of new connection. The aforesaid testimonies show that she had paid all the said dues as she deposed that she completed all the commercial formalities but no such document showing payment has been brought on record. It is further evident that PW1 had testified earlier that she had not cleared the dues of Ms.Harpyari on being asked to do so by Defendant No.1 vide Letter Ex.X1 dated 08.06.2005. This testimony shows that Plaintiff is contradicting her own version regarding the completion of commercial formalities which establishes that Plaintiff did not complete the commercial formalities as a result of which subject meter was not transferred in her name. It shows that Plaintiff has not approached the Court with clean hands, which further disentitles the plaintiff to claim the equitable relief of injunction for granting which approaching the Court with clean hands is a necessary requirement.
27. Testimony of PW1 further reveals that she denied that the subject meter is installed in the room of the Defendant No.2 during the cross Sunita vs NDPL Suit No.596791/2016 Page 27 of 29 examination conducted on 09.09.2013 whereas in reply to a specific question put to PW1 or the crossexamination conducted on 15.01.2014 regarding the factum of installation of subject meter in room of Defendant No.2, she replied that meter in question which is the subject matter of the present suit is till today installed in the portion of the premises in her possession. This testimony falsifies the version of Plaintiff as stated in the amended plaint and affidavit in evidence that the subject connection has been shifted in the room in possession of Defendant No.2 which further disentitles the plaintiff from seeking the relief of shifting the meter back to the room of the plaintiff.
28. It, thus, follows from the aforediscussed facts, circumstances, analysis of testimonies and observations that Plaintiff has failed to raise a preponderance of probabilities suggesting that any illegality or irregularity was committed by the Defendant No.1 in transferring the subject connection in the name of Defendant No.2 and that the subject meter has been shifted to the room of defendant No.2. It further shows that plaintiff has failed to establish which legal right of the plaintiff has been infringed and what is the hardship suffered by her as she could have obtained the connection after clearing the commercial formalities of the defendant No.1 which she did not comply which reflects her malafides. So, it can be said that Plaintiff has not been able to establish that she is entitled to the relief of declaration, permanent injunction and mandatory injunction. Accordingly, Issue No.3, 4 and 5 are decided against the Sunita vs NDPL Suit No.596791/2016 Page 28 of 29 Plaintiff and in favour of the Defendants.
Relief :
29. In view of the foregoing discussion and the findings on the aforesaid Issue No.1, 3, 4 and 5, the suit filed by the Plaintiff for Declaration, Mandatory and Permanent Injunction is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after due completion.
Announced in the open Court (Viplav Dabas)
on this 31.03.2018 Civil Judge01/Central,
Tis Hazari Courts/Delhi.
Sunita vs NDPL Suit No.596791/2016 Page 29 of 29