Delhi District Court
Sh. Surender Kumar vs Bses Rajdhani Power Ltd on 27 May, 2013
1
IN THE COURT OF Ms. VEENA RANI, ADDITIONAL SENIOR
CIVIL JUDGE, SOUTHEAST DISTRICT, SAKET COURT
COMPLEX, NEW DELHI
Suit No:177/2013
Sh. Surender Kumar .....Plaintiff
Versus
1. BSES Rajdhani Power Ltd.
2. Smt. Shanti Devi .....Defendants
ORDER
1. Vide this order I shall decide the application of the plaintiff u/o 39 rule 1&2 CPC vide which plaintiff seeks an exparte adinterim order thereby directing the defendant No:1 to release a new connection in the portion of the plaintiff at H. No:3/45, Block3, Nehru Nagar, Delhi. Briefly stated the facts for the disposal of this application are as under:
2. It is averred by the plaintiff that he, along with his family members is residing at H No:3/45, Block3, Nehru Nagar, Delhi and he along with his mother Smt. Shanti Devi/defendant No:2 are occupying the backside and front side portion of the above premises. It is stated that above stated premises was purchased by the father of the plaintiff during his lifetime.
Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
23. It is stated by the plaintiff that he is continuously taking care of the defendant No:2 but the real brother of the plaintiff namely Sh. Harish poisoned the relations and due to which the defendant No:2 started misbehaving with the plaintiff. It is further stated that defendant No:2 is extending threats to the plaintiff to vacate the property/back portion.
4. It is submitted that defendant No:2 got sanctioned the electricity supply to the premises and the plaintiff and the defendant No:2 are using the electricity through one meter whereas the whole electricity consumption charges are being made by the plaintiff. It is stated that due to heavy consumption of electricity by the defendant no:2, the electricity bills are being generated with a huge amount which the plaintiff is constrained to pay out of his hard earned money and defendant No:2 never paid even a single penny towards the consumption charges.
5. It is stated by the plaintiff that he has filed a case against the defendant no:2, which is pending adjudication before the court of Ms. Surabhi Sharma Vats, Ld. Civil Judge, Saket, New Delhi and said ld. Court has pleased to pass injunction in favour of the plaintiff.
6. It is averred by the plaintiff that he has applied for a separate electricity connection in his name but the officials Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
3of the defendant No:1 did not grant the separate connection to the portion where the plaintiff is residing, hence the present suit.
7. In their written statement the defendant No:1/BSES Rajdhani Power Limited stated that since the plaintiff has failed to comply with the commercial formalities as provided in Delhi Electricity Supply Code and Performance Standard Regulations, the electricity connection could not be sanctioned in the name of the plaintiff. It is stated that suit of the plaintiff is premature as plaintiff himself failed to comply with the commercial formalities. It is stated that plaintiff has failed to produce any proof of ownership or occupancy of the premises where the electricity connection is being sought. It is submitted that suit of the plaintiff is without any cause of action against the defendant No:1 and liable to be dismissed with cost.
8. Defendant No:2 also filed written statement. It is stated by the defendant No:2 that she is the owner and in lawful possession of the suit property and plaintiff is a trespasser in the suit property and he has no right, title or interest in the suit property. It is denied that father of the plaintiff purchased the suit property during his life time. It is further denied that plaintiff ever took the responsibility of the defendant no:2. It is stated defendant No:2 paid the Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
4entire consideration amount to the DDA from her own hard money and the father of the plaintiff has nothing to do with the suit property. It is further denied by the defendant No:2 that plaintiff is paying the electricity charges as alleged by him in his plaint. It is submitted that plaintiff and his family member has restrained the defendant No:2 from using the electricity, though the electricity connection is in the name of the defendant no:2 who is the registered owner of the electricity connection. It is stated that rather the plaintiff has forced the defendant no:2 to pay the electricity charges consumed by the plaintiff and his family members on the threat of beating and throwing her bags and baggages out side of the home. It is stated that plaintiff and his family is not allowing the defendant no:2 to use the bathroom and toilet in the suit property. It is submitted that plaintiff and his family are habitual of throwing the defendant No:2 from her own house i.e. the suit property. It is stated that defendant no:2 is the owner of the suit property and is at liberty to use her property in the way she wants and plaintiff has no right, title or interest in the suit property. It is submitted that plaintiff is not entitle to get the electricity connection in his name. It is stated that plaintiff is trying to create some evidence in his favour in order to grab the entire property. Defendant No:2 stated Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
5that there is no cause of action against her, hence the suit of the plaintiff be dismissed with cost.
9. I have heard ld. counsel for the parties and perused the record carefully.
10. It is to be borne in mind that a mandatory injunction is one where a direction is issued to a person to do a particular thing. The interim mandatory injunction will have to be granted with due care and caution and in rare cases. But, the rare cases are those where extreme hardship is likely to be caused to the plaintiffs and where wrong has been done recently and wrong has not been acquiesced by the plaintiffs and the special circumstances necessarily have to be proved by the plaintiffs.
11. In MRS.VIJAY SRIVASTAVA V. M/S. MIRAHUL ENTERPRISES, AIR 1988 DELHI 140, it is held that 'it cannot be said that no mandatory injunction can be granted by the court on an interlocutory application in any circumstances. There is no bar to the Court's granting interlocutory relief in the mandatory form though in doing so, the Court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of 'rare' and 'exceptional' one, is to be judged according to the facts and circumstances surrounding it. A mandatory injunction Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
6can be granted on an interlocutory application after notice to the defendant and after hearing the parties'.
12. The decision 'DORAB CAWASJI WARDEN V. COOMI SORAB WARDEN, (1990) 2 SUPREME COURT CASES 117, at page No.118 wherein the Honourable Supreme Court has observed that ' the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non contested status which proceeded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, Courts have evolved certain guidelines which are
i) the plaintiff has a strong case for trial that is, it shall be of a high standard than a prima facie case that is normally required for a prohibitory injunction.
Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
7ii)It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
iii) The balance of inconvenience is in favour of the one seeking such relief. ' And further at page 120, it is also observed that 'the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of facts and circumstances in each cases. Though the above guidelines are neither exhaustive nor complete or absolute rules and there may be exceptional circumstances needing action, applying them as prerequisite for the grant of refusal, such injunctions would be a sound exercise of a judicial discretion.'
13. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: "The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves.
14. In SAKTHI DURGA BUILDERS AND DEVELOPERS V. Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
8P.S.RAMAN, 2007(3) CTC at page 163(D.B.), it has been held that the interim mandatory injunction can be granted only when there is a strong primafacie case apart from other aspect regarding irreparable loss and the balance of inconvenience and tests to be satisfied are far more stringent in case of an interim mandatory injunction and can be granted only in exceptional cases.
15. The plaintiff has not been able to establish a prima facie case in his favour.
The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black's Law Dictionary]".
In the present case the plaintiff is seeking 'positive' directions to the BSES to install the electricity meter. On the other hand the BSES has not plainly refused to do so, all that has been asked is that the plaintiff has to submit the documents to the satisfaction of the BSES. In the present case the plaintiff has not established that he had made valid Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
9application and that he had submitted satisfactory documents before the authority. It is not the case of the plaintiffherein that he is being denied of the electricity connection despite the submission of the 'complete' documents. It is also not the case of the plaintiffherein that the BSES is denying him the connection on some 'extraneous' reason.
It was observed in THE UNIVERSITY OF BIHAR AND ANOTHER V. RAJENDRA SINGH, AIR 1978 PATNA 144:
'If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the "status quo" and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted.
16. BALANCE OF CONVENENCE:
In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ' Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the Suit No:177/2013, Surender Kumar Vs. BSES & Ors.10
other side if the injunction is granted.' In the present case if the temporary injunction is not granted the plaintiveherein is not likely to face mischief or inconvenience. On the other hand if an injunction (against the ingress etc.) is granted the defendant might face undue inconvenience inasmuch that all the possibilities of a patch up between the parties might be jeopardized and a big communication gap might develop.
17. Irreparable injury:
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. In the present case the plaintiffherein has not been able to show at this stage the irreparable injury that might occur.
The Hon'ble Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others (1990) 2 SCC 117, has been pleased to lay down as under: " Since the relief of an interim injunction is all the same an equitable relief the court shall also consider Suit No:177/2013, Surender Kumar Vs. BSES & Ors.11
whether the comparative mischief or inconvenience which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff seeking the relief."
It is quite pertinent for this Court to point out the test to be applied in issuing mandatory injunctions on interlocutory application is well described in 24 Hallsburry's Law of England (Fourth Edition) at paragraph 948 which runs as follows: 'A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of each complaint is made, so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on interlocutory application.'
18. In the light of the above facts & circumstances I am Suit No:177/2013, Surender Kumar Vs. BSES & Ors.
12not inclined to grant any sort of injunction. The application is therefore dismissed. Nothing of what has been stated herein above shall have any bearing on the merits of the case.
19. Put up for documents A/D and framing of issues on 15072013.
Announced in the open court.
(VEENA RANI) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI Date:27052013 Suit No:177/2013, Surender Kumar Vs. BSES & Ors.