Bangalore District Court
Sri.H.S.Ayesha Muskaan vs Assistant Executive Engineer on 7 December, 2019
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 7th DAY OF DECEMBER 2019
Present: Sri.Manjunatha.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.5036/2017
Plaintiff : Sri.H.S.Ayesha Muskaan,
Aged 28 Years,
W/o.Sri.Mohammed Fazal Ahmed,
R/at No.1740/A, Sri Gandha Kaval,
Gidadakonenahalli,
D-Group Layout,
Yeshwanthapur Hobli,
Bengaluru North.
(By Sri.M.P.M.S., Advocate)
-Vs-
Defendant : Assistant Executive Engineer,
(Electrical),
Bengaluru Electricity Supply Co.
Ltd., (BESCOM)
8th North Sub Division,
Papareddy Palya,
Bengaluru-560072.
(Sri.H.V.D., Advocate)
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Date of institution of the suit : 24-07-2017
Nature of the suit : Declaration & Injunction
Date of commencement of
recording of the evidence : 30-7-2019
Date on which the judgment : 07-12-2019
was pronounced
Total duration : Years/s Month/s Day/s
02 04 13
(MANJUNATHA.G.A.)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The Plaintiff has filed this suit against the defendant for declaration and for Permanent Injunction.
2. In brief, the case of the plaintiff is as follows:-
The plaintiff has purchased suit property by way of a Registered Sale Deed dated 16-7-2008 from Karnataka State Group 3 'D' Employee's Central Association (R), Bengaluru. Possession of suit property was handed over to the plaintiff vide Possession Certificate dated 12-7-2008. On 18-7-2008, the said Association has also executed a Rectification Deed with regard to extent of suit property. The plaintiff became the owner of the suit schedule property. Khata is mutated in her name. She has put up three squares A.C.Sheet roof house along with compound over the suit schedule property. She has obtained electricity from the defendant - BESCOM. She is in possession of the suit property. She is regularly paying electricity charges and tax to the Government.
However, one Sri.Shankar S/o.Hanumaiah started to interfere with possession of plaintiff over suit property. Therefore, the plaintiff filed O.S.No.6916/2015 against Sri.Shankar. The Court by its Order dated 30-9-2015 directed both the parties to maintain status-quo. Subsequently, Sri.Shankar also filed O.S.No.1017/2016 before CCH-63 for possession of suit schedule property against the 4 plaintiff herein and President and Secretary of the Society stating that he has purchased property bearing No.1740 as on 16-12- 2003. Shankar has complained to the defendant for disconnecting the electricity supply. Accordingly, the defendant has issued a letter dated 14-7-2017 threatening to disconnect electricity to the plaint schedule property. Therefore, the plaintiff prayed to declare the letter dated 14-7-2017 issued by defendant as null and void in view of the pendency of O.S.No.6916/2015 and O.S.No.1017/2016.
3. The only defendant has appeared through its Advocate and filed Written Statement contending that suit of the plaintiff is not maintainable. As per condition No.43 of conditions of supply of electricity of Distribution licensees, the defendant has every right to disconnect installation forthwith if power supply has been obtained by producing fraudulent documents. On comparison of the documents produced by the plaintiff, it appears she had obtained electricity supply by producing documents of site No.1740 instead 5 of side No.1740/A. After the spot inspection, the boundaries are tallied with site No.1740 and not 1740/A. Therefore, the show- cause notice was issued to plaintiff on 14-7-2017. The plaintiff has replied to the same. Thereafter, the defendant has not taken any action. If the defendant had taken any action after reply given by the plaintiff, the plaintiff could have filed the present suit. Therefore, the suit is not maintainable. The cause of action pleaded to the suit is denied. Finally, it is prayed to dismiss the suit with cost.
4. Based on the said pleadings, the following issues have been framed:-
1. Whether the plaintiff proves that the letter dated 14-7-2017 issued by defendant threatening to disconnect the electricity to the plaint schedule property as null and void?
2. Whether the plaintiff is entitled for Permanent injunction as claimed in the suit? 6
3. Whether the suit is maintainable?
4. What Order or Decree?
5. The mother of plaintiff is examined as P.W.1. The Advocate for the defendant fully cross-examined and got marked Ex.D.1. The Learned Advocate for the defendant fairly submitted that no oral evidence from the side of defendant.
6. Heard the arguments.
7. My findings to the issues are as follows:-
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : As per final order for the following:-
REASONS
8. Issue Nos.1 to 3:- To avoid repetition of facts, all the 7 three issues are taken together for common discussion.
Reiterating the plaint averments, the mother of the plaintiff is examined as P.W.1 on the strength of Ex.P.1 - GPA. The Sale Deed of the plaintiff is marked at Ex.P.2 dated 16-7-2008. Rectification Deed is marked at Ex.P.3 dated 18-7-2008. Tax paid receipts are marked at Ex.P.4. Demand Register is marked at Ex.P.5. No objection certificate is marked at Ex.P.6. As per this document dated 18-7-2008, the plaintiff was permitted to sell, mortgage for which the State Government 'D' Group Employee's Central Association (R) has no objection. The Possession Certificate is marked at Ex.P.7. The same is dated 12-7-2008. All these Exs.P.1 to P.7 disclose that plaintiff is the owner in possession of site No.1740/A. The boundaries mentioned in the Sale Deed and Ex.P.7 are as follows:-
East by : Site No.1741/A
West by : Site No.1740
North by : Road
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South by : Site No.1764/A
These boundaries have been admitted by P.W.1 in her cross- examination also. The suit is in respect of site No.1740/A measuring 30ft x 40ft. One Shankar is claiming to be the owner in possession of site No.1740. In this regard, the plaintiff herein has filed O.S.No.6916/2015 against Sri.Shankar for the relief of Permanent Injunction in respect of property bearing No.1740/A as per Ex.P.12. In turn, Sri.Shankar has filed O.S.No.1017/2016 against the plaintiff herein and President and Secretary of the Karnataka State 'D' Group Employee's Central Association (R) as per Ex.P.13. The said suit is filed in respect of 1740. The said suit is filed for the relief of possession of site No.1740 and for Permanent Injunction. It is the case of the defendant herein that the plaintiff by producing documents of 1740 has obtained electricity supply. But, the documents produced by the plaintiff cannot be treated as fraudulent documents. They are all public documents. 9 Ex.P.2 is a Registered Sale Deed. Exs.P.6 & P.7 have been issued by a competent society Registered under the Provisions of Societies Registration Act. It is true that there is a dispute between plaintiff and Shankar. According to Shankar, though, the plaintiff has purchased site No.1740/A, she is in possession of site No.1740. In this regard, he has filed a suit for recovery of possession as per Ex.P.13. When the two suits are pending, the plaintiff is apprehending that the defendant in the suit may disconnect the electricity supply. In this regard, she has also got marked Ex.P.10 wherein the defendant has threatened to disconnect the power supply. It is true that after issuance of reply by plaintiff as per Ex.D.1, the defendant has not disconnected the power supply. However, the apprehension is still in the mind of the plaintiff. Even otherwise, no prejudice will be caused to the defendant if the suit is decreed. Because, the defendant is duty bound to supply electricity on verification of documents. There may be a dispute between the 10 plaintiff and Shankar with regard to 1740 and 1740/A. Unless and until the said dispute is resolved, the plaintiff is at liberty to enjoy power supply. It has come in the evidence of P.W.1 that a tenant of her is residing in the suit schedule property. If the electricity supply is disconnected, the plaintiff and her tenant will suffer greater hardship. It is not the case of the defendant that the plaintiff or her tenant is not paying electricity charges. It is the case of the defendant that fraudulent documents are produced by the plaintiff. But, the plaintiff has produced the Sale Deed which is marked at Ex.P.2. It cannot be treated as a fraudulent document. Again, it is for the Civil Court to say whether the instrument is fraudulent or not and not the defendant. Therefore, until disposal of the above referred suits, the defendant has to be restrained from disconnecting power supply. Accordingly, issue Nos.1 to 3 are answered in the affirmative.
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9. Issue No.4:- In view of findings on issue Nos.1 to 3, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed with cost. It is declared that the notice/letter dated 14-7-2017 issued by the defendant threatening to disconnect electricity supply to the plaint schedule property is null and void.
By way of Permanent Injunction, the defendant is restrained from disconnecting power supply till final disposal of O.S.No.6916/2015 (Now Mis.No.369/2017) and O.S.No.1017/2016.
Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 7 th day of December 2019) (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru 12 ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Smt.Zubedunnisa Witnesses examined on behalf of the defendants
- Nil-
Documents marked on behalf of the plaintiff.
Ex.P.1 : GPA
Ex.P.2 : Sale Deed
Ex.P.3 : Rectification Deed
Ex.P.4 : Tax paid receipts
Ex.P.5 : Demand Register
Ex.P.6 : No objection certificate
Ex.P.7 : Possession Certificate
Ex.P.8 : Encumbrance Certificate
Ex.P.9 : Encumbrance Certificate
Ex.P.10 : Letter
Ex.P.11 : Electricity Bill and receipts
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Ex.P.12 : Certified copy of the plaint in
O.S.No.6916/2015
Ex.P.13 : Certified copy of the plaint in
O.S.No.1017/2016
Documents marked on behalf of the defendant.
Ex.D.1 : Reply notice dated 24-7-2017
(MANJUNATHA.G.A.)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
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