Delhi District Court
Smt. Sushma W/O Late Brahm Singh vs Ndpl Through Its General Manager on 7 December, 2015
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No.634A/2014
In the matter of
Smt. Sushma W/o Late Brahm Singh
R/o WZ-261, Basai Darapur,
New Delhi-110015. .....Plaintiff
Vs.
1.NDPL through its General Manager, Grid Sub Station, Hudson Lines,
Kingway Camp, Delhi.
2. The concerned officer, North Delhi Power Limited
H.O.G. No Dues Section, KPM, Keshav Puram, Delhi.
3. The concerned officer, North Delhi Power Limited
Inderpuri, New Delhi. .....Defendants
Date of institution of the Suit : 23.02.2008
Date on which judgment was reserved : 24.11.2015
Date of decision : 07.12.2015
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
JUDGMENT
At the outset, I would like to note that providing or not providing a commercial electricity meter and disconnecting or not disconnecting any electricity meter can be done by a electricity company in pursuance of powers available under the Electricity Act, 2003. A division bench of Hon'ble Delhi High Court in B.L. Kantroo vs BSES Rajdhani Power Ltd. MANU/DE/1411/2008 has held as under:
Sushma Devi Vs. NDPL & Ors. 1"However, at the same time, it is also directed by the legislature in the same very Section 145 independently that no injunction shall be granted by the court or authority in respect of any action under the Act."
2. Clearly, therefore, if any one files a suit seeking mandatory or permanent injunction against electricity company for a commercial meter or prohibition from disconnection, he cannot maintain such suit before the civil court due to bar created by Section-145 Electricity Act 2003.
3. Further, a three judges bench of Hon'ble Delhi High Court in BSES Rajdhani Power Ltd. Vs. Saurashtra Color Tones Pvt. Ltd. AIR 2010 Delhi 14 has held that electricity arrears are recoverable from subsequent occupant and in case of non payment, new connection may be refused.
4. With the above in mind, we may look into the pleadings of the parties. The plaintiff claims that she was refused a connection on the premise that bills pertaining to K. No. 33300151879 (in the name of Anil Kumar) and 33300169468 (in the name of plaintiff's husband) were pending whereas the former was not existed and later was removed after clearance of all the dues and therefore those bills should be declared null & void and plaintiff be provided with commercial meter. Additionally, another bill of Rs.58,980/- was also set-up by the plaintiff in paragraph- 10 of the plaint but without mentioning any details of electricity connection number and without pleading as to why she was not liable to pay the bill amount. Then she jumped to make a prayer for non- disconnection in prayer clause-(c) in respect of K No.333000151837 (in Sushma Devi Vs. NDPL & Ors. 2 the name of Dr. Bahdav) claiming herself to be the user thereof.
5. It is from the WS that we come to know the clear picture. K. No. 33300151879 is in the name of Anil Kumar (with dues of Rs.22010), K. No. 33300169468 is in the name of Brahm Singh (with dues of Rs.41342), K No.333000151837 is in the name of Dr. Bahdav (with dues of Rs.58980) and all the three connections were installed at WZ-261.
In the replication, the plaintiff replied: in respect of Anil Kumar "is not existed", in respect of Brahm Singh "after receiving the dues" and in respect of Dr. Bahdav "no dues".
6. Ld. Predecessor vide order dated 26.05.2010 framed following issues:-
1.Whether the plaintiff is entitled to relief of declaration as prayed for?OPP
2.Whether the plaintiff is entitled to relief of permanent and mandatory injunction as prayed for?OPP
3. Whether the impugned bills raised by defendant against all K Nos. mentioned in the prayer clause (a) of plaint are prima facie illegal?OPP
4. Whether the suit of plaintiff is liable to be dismissed for mis-joinder of causes of action? OPD
5. Whether the plaintiff has no locus standi to file the present suit?OPD
6. Relief.Sushma Devi Vs. NDPL & Ors. 3
7. In the evidence, the plaintiff examined herself as PW1 and official witness Ravi Shankar, Manoj, Mahinder, Pradeep as PW2 to PW5. The defendant side examined Praveen Gupta and J.S. Verma as DW1 & DW2. Both the sides failed to advance any oral arguments but the plaintiff filed written arguments which have been perused. I have also gone through the record. I now proceed to deal with the issues as framed.
8. Issue No.-1 & 3 are taken up together for consideration. There is no specific allegation as to why demand related to Dr. Bahdav is illegal. The plaintiff has simply claimed it to be illegal in her plaint and to have no dues (through her replication). Why? It has not been answered. There is nothing in the entire evidence to show that there was no dues regarding connection of Dr. Bahdav or that the bill raised was paid. The concerned demand therefore has to stand. So far as demand related to Anil Kumar is concerned, the claim of the plaintiff in her plaint, replication and affidavit is that the said connection (i.e. K. No. 33300151879) "is not existed". Clearly, the expression "is" denotes present scenario when the averments were made but the same cannot be treated as having a denial of past existence. However, in her cross examination dated 06.07.2015, the plaintiff denied a suggestion that the said connection was in the name of Anil Kumar. I am of the view that firstly, this does not amount to a statement that the connection itself was not in existence and secondly, even if this was so, the denial of suggestion was required to be justified by the plaintiff. Apparently, the plaintiff has not led any specific evidence to justify this denial of suggestion. In such circumstances, I am unable to hold that plaintiff was disputing the existence of connection or any outstanding amount. It is well settled law that what has not been pleaded cannot be looked into and Sushma Devi Vs. NDPL & Ors. 4 even if any evidence is recorded on not pleaded case, the same has to be ignored. If any authority is required, I would refer to Union of India vs Ibrahim Uddin (2012) 8 SCC 148 the ratio whereof has recently been applied by the Hon'ble High Court of Delhi in New Delhi Municipal Council vs M/S Prominent Hotels Limited on 11 September, 2015.
When the specific claim was made in the WS about this connection and outstanding dues thereon, the plaintiff chosen to reply in her replication that the said connection "is not existed". There was no denial whether the said connection was in existence at any prior time or there was any dues thereon or not. As such, the dues related to Anil Kumar has to stand as it is. It is the dues related to Brahm Singh which is next to be considered. The plaintiff wants to contend that this connection was removed after clearance of dues and for this she has relied upon one written statement filed by erstwhile Delhi Vidut Board in suit no.895/06. Certified copy of the said written statement has been exhibited as Ex.PW1/13. However, I am of the opinion that a written statement is a document of a private person who normally files the same in any suit but it cannot be said that such written statement is an act or record of act of any judicial proceeding. Therefore, before placing any reliance on a copy of such written statement, I am of the opinion that the plaintiff ought to have examined any witness (anyone who could have established the same in the manner available under Evidence Act) to establish the signature on the said document. The plaintiff appears to have not done so and, therefore, I am unable to rely upon Ex.PW1/13 as an admission. So far as certified copy of order dated 02.05.2006 passed in the same suit which has been exhibited as Ex.PW1/14 is concerned, clearly the same being from a judicial record is admissible in evidence. Pertinently, order/judgment/decree is judicial act or record of judicial act. I have Sushma Devi Vs. NDPL & Ors. 5 perused the said order but the same is talking about no liability in respect of K no. 152408. This in my opinion does not advance the case of plaintiff regarding the K number i.e. 33300169468 in the name of plaintiff's husband Brahm Singh. There is no other specific contrary evidence in respect of this due amount. In the entire facts and circumstances, it is held that all the three dues have to stand as they are. Apart from this, I am also of the opinion that a person cannot seek a declaration regarding any bill amount only by paying a fixed court fee. In essence, the consumer in such circumstances basically wants to avoid payment of the bill amount and, therefore, it should pay advalorem court fee on the bill amount because unless the bill payment is avoided the consequential relief of any direction regarding new meter or non- disconnection cannot be granted. The issue no. 1 and 3 are, therefore, decided against the plaintiff.
9. Issue No.-2 is taken up for consideration. Prayer for mandatory injunction appears to be for grant of commercial meter whereas prayer for permanent injunction appears to be for not disconnecting the meter installed in the name of Dr. Bahdav. I have already shown that such type of prayer related to injunction is not maintainable due to the bar created by Section-145 of Electricity Act, 2003. Additionally, so far as prayer related to connection of Dr. Bahdav is concerned, the entire plaint is silent in respect of any cause of action therefor. Moreover, as held in Sarjiwan Singh Vs. Delhi Vidyut Board, MANU/DE/0246/2004, a suit for injunction is not maintainable where the plaintiff ought to have prayed for declaring the bill as void. In the present case, the Plaintiff though says that bill has been illegally raised but is not asking for any declaration in respect of this particular bill and is only seeking to restrain Sushma Devi Vs. NDPL & Ors. 6 the defendant from disconnecting the meter. This is not permissible. For all these reasons, it is held that both the injunctions are not maintainable. As such, Issue No.-2 is decided against the plaintiff.
10. Issue No.-4 is taken up for consideration. This appears to be sufficiently answered by Ld. Predecessor vide order dated 17.01.2014 by which application under Order-7 Rule-11 (in which clubbing of cause of actions was also raised) was dismissed. No progress was made by the defendant side even during evidence and therefore, I am of the opinion that there is no reason to take a view contrary to that which has already been taken on 17.01.2014. The Issue No.-4 is therefore decided in favour of the plaintiff.
11. Issue No.-5 is taken up for consideration. This appears to be based on preliminary objection No.-2 in the WS which says that plaintiff is neither registered consumer nor an attorney holder, never applied for change of name nor has any privity. The record shows that there is no dispute about the fact that plaintiff applied for a new connection and she has been asked to clear the arrears. This in my view is sufficient to say that the plaintiff has locus to question the denial and demand for arrears. The Issue No.-5 is decided in favour of the plaintiff.
12. In the light of the above, it is held that plaintiff is not entitled for any relief. The suit is therefore dismissed. In the facts and circumstances of the case, parties are left to bear their own costs.
13. Decree be prepared accordingly.
Announced in the open (Rakesh Kumar Singh)
court today on 07.12.2015 CJ-11/CENTRAL/DELHI
Sushma Devi Vs. NDPL & Ors. 7