Bombay High Court
Mahesh Ramkaran Varma Thr. Gpa ... vs Vidya Harichandra Jadhav And Ors on 31 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
918 SECOND APPEAL NO.653 OF 2011
WITH CA/12506/2011 IN SA/653/2011
MAHESH RAMKARAN VARMA THROUGH GPA
VIJAYKUMAR RAMKARAN VERMA
VERSUS
VIDYA HARICHANDRA JADHAV AND ORS
...
Mrs. Anjali Dube, Advocate for the appellant
Mr. P.B. Shirsath, Advocate for the respondent No.1
Mr. A.M. Gaikwad, Advocate for respondent Nos.2 to 4
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 31st AUGUST, 2021.
PER COURT :
1 Present appeal has been filed by original defendant No.4 to
challenge the concurrent Judgment and Decree. Present respondent No.1 is
the original plaintiff, who had filed Regular Civil Suit No.702/2004 before
Civil Judge Senior Division, Latur, for mandatory injunction for supply of
single phase electricity connection to House No.3417, situated in
Pakharsangvi area in Latur. The said suit was decreed on 25.10.2005.
Defendant Nos.1 to 3 were directed to supply single phase electricity
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connection to the plaintiff at the given address. Being aggrieved by the said
Judgment and Decree, present appellant-original defendant No.4 filed
Regular Civil Appeal No.53/2006. The said appeal was heard by learned
Adhoc District Judge-2, Latur and the appeal came to be dismissed on
12.11.2010. Hence, this Second Appeal.
2 Heard learned Advocate Mrs. Anjali Dube for the appellant,
learned Advocate Mr. P.B. Shirsath for the respondent No.1 and learned
Advocate Mr. A.M. Gaikwad for respondent Nos.2 to 4.
3 It has been vehemently submitted on behalf of the appellant-
original defendant No.4 that there was earlier round of litigation between the
present appellant and one Pandit Ganpatrao Lakhadive (since deceased
through legal representatives) in respect of the same property. Present
appellant was the original plaintiff in Regular Civil Suit No.214/2004, which
was filed for declaration of ownership and injunction. The said suit came to
be dismissed on 04.11.2006 by learned Civil Judge Junior Division, Latur. He
had then filed Regular Civil Appeal No.174/2006. That appeal came to be
partly allowed on 12.11.2010. The present appellant has been declared to be
the owner of the said property and after considering the other documentary
evidence on record the prayer for injunction was refused, as it was held that
the present appellant is not possessing the said property. Liberty was given to
3 SA_653_2011
the present appellant (plaintiff in that suit) to recover the possession. The
plaintiff-present respondent No.1 claimed that she has purchased the suit
property from Pandit Ganpatrao Lakhadive, who was the defendant in the
suit that was filed by the present appellant. Now, the position that stands is
that there is no challenge further to the Judgment, that was passed by this
Court on 19.11.2014, in Civil Application No.4716 of 2011, in Second Appeal
No.728 of 2014, whereby the decree passed in Regular Civil Appeal
No.174/2006 by the First Appellate Court was maintained. Learned
Advocate for the appellant further submitted that she will not press the other
points, however, only point she intends to press upon is the jurisdiction of the
Court of Civil Judge Senior Division to deal with Regular Civil Suit
No.702/2004. She submitted that the suit was filed asking mandatory
injunction, not only against the present appellant, but the defendant Nos.1 to
3 were the authorities under then Maharashtra State Electricity Board and
MSEDCL i.e. defendant Nos.1 to 3 was directed by the learned Trial Judge to
provide single phase electricity connection to the plaintiff. The said suit was
filed on 29.10.2004. The Electricity Act came into force with effect from
26.05.2003. She submitted that in view of the provisions regarding
distribution of electricity contained in part 4 specific duties have been
specified. Section 42(3) of the Electricity Act, 2003 deals with the
mechanism to raise grievances and Sub Section 6 of the said Section provides
4 SA_653_2011
that - "Any consumer, who is aggrieved by non-redressal of his grievances
under sub-section (5), may make a representation for the redressal of his
grievance to an authority to be known as Ombudsman to be appointed or
designated by the State Commission." Sub-section (7) provides that - "The
Ombudsman shall settle the grievance of the consumer within such time and
in such manner as may be specified by the State Commission." According to
the learned Advocate for the appellant, at the most, the plaintiff herein can
be said to be the occupier of the building and the word 'occupier' has been
defined in Rule 2(b) of The Works of Licensees Rules, 2006 as - "occupier" of
any building or land means a person in lawful occupation of that building or
land. Under such circumstance, the Civil Judge Senior Division had no
jurisdiction to try and entertain the suit. Further, the Appellate Court has
also not taken into consideration the point of jurisdiction while confirming
the decree that was passed by the learned Trial Judge and, therefore, this is
the substantial question of law that is arising in this case.
4 Learned Advocate for the respondent No.1 submitted that there
are no substantial questions of law arising in this case, requiring admission of
the Second Appeal. Present appellant-original defendant No.4 never raised
the point of jurisdiction before both the Courts below. So also, the original
defendant Nos.1 to 3 have also not raised such kind of defence. There was
5 SA_653_2011
no relationship of consumer and supplier between the parties, as
contemplated under The Electricity Act, 2003. Though the plaintiff had
made application for supply of the electricity to the premises; yet, there was
absolutely no communication made by the defendant Nos.1 to 3 to her. She
had no option but to knock the doors of the Civil Court. Further, though now,
in view of the decision of this Court in Second Appeal No.728/2014 the suit
for recovery of possession has been filed; yet, from the observations of this
Court in para Nos.10 and 11 it is very much clear that the present respondent
No.1-original plaintiff is the occupier of the premises, who was in need of
electricity. Both the Courts below have considered the facts and
circumstances and the evidence properly and have arrived at proper
conclusion. There is no necessity to interfere. Learned Advocate for
respondent Nos.2 to 4 submitted that they are bound by the orders of the
Court, however, as regards the supply of electricity is concerned, in view of
Section 42 of The Electricity Act, they are bound to supply electricity to the
occupier.
5 It is very much apparent that the present appellant-original
defendant No.4 had not raised the point of jurisdiction before both the Courts
below. Under such circumstance, there was no issue framed by the Trial
Court and it appears that even before the First Appellate Court the said point
6 SA_653_2011
was not agitated and no submissions were made. However, point of
jurisdiction is definitely a question of law. As aforesaid, the Electricity Act
has come into force on 26.05.2003 and the suit in this case has been filed
thereafter. It was then required to be considered, as to whether the suit was
barred in view of Section 42(6) of the Electricity Act, 2003. Learned
Advocate for the appellant has relied on the decision in Fakir (dead) through
Shyam Deo vs. Kishori @ Lalloo and another, AIR 1995 SC 1569. This was
the case under Uttar Pradesh Zamindari Abolition and Land Reforms Act. It
was then held that -
"18. This error was caused on account of non-consideration of the
statutory provision as they existed on the relevant date. Since the
suits under S. 209 of the Act were made cognizable by the Revenue
Court only with effect from 28 th May, 1956, the suit in Chandrika
Misir's case (AIR 1973 SC 239) which was filed on 5 th September,
1955 was, therefore, cognizable by the Civil Court and not by the
Revenue Court.
19. In the instant case, as pointed out earlier, the suit was filed by
Kishori on 5th January, 1954. On that date, in view of the provisions
contained in Section 331 as also in Sch.II as they stood then, the suit
could be filed only the Civil Court and not in Revenue Court.
Consequently, the decree passed in that suit by the trial Court, which
was upheld by the lower Appellate Court as also in the High Court by
the single Judge and thereafter by the Division Bench, were binding
on Faqir against whom the suit was filed and the consolidation Courts
were not justified in ignoring those decrees on the ground that this
7 SA_653_2011
Court in Chandrika's Misir's case (supra) had laid down that a suit
under Section 209 could be filed only in the Revenue Court and a
decree passed by the Civil Court was a nullity. The High Court, in our
opinion, was, therefore, right in allowing the Writ Petition and
quashing the orders passed by the consolidation authorities."
6 At this stage, what can be gathered from the facts is that though
the present appellant has been declared as owner of the property and it
appears that the said decree has become final, he has been held not to be in
possession of the property and the opportunity was given to him to adopt
appropriate proceedings for recovery of possession. At present the original
plaintiff, who had purchased the property from Panditrao Lakhadive, who
was held to be the occupier and the possessor in the earlier round of
litigation up to this Court, had put her in possession and, therefore, prima
facie it can be said that there is evidence to show that she was the occupier.
Now, the question arises, whether the plaintiff was the consumer of the then
Maharashtra State Electricity Board ? Further, it would be required to be
gone into, as to whether the Civil Court had jurisdiction to try the suit, in
view of the provisions of Section 42(6) of Electricity Act. Therefore, case is
made out to admit the Second Appeal, as substantial questions of law, as
contemplated under Section 100 of the Code of Civil Procedure, 1908 are
arising. The Second Appeal stands admitted. Following are the substantial
8 SA_653_2011
questions of law.
1 Whether the suit filed by the respondent No.1-original
plaintiff was maintainable before Civil Judge Senior Division, in
view of the provisions under Section 42(6) of the Electricity
Act ?
2 Whether plaintiff was consumer as defined under the
Electricity Act ?
3 Whether both the Courts below erred in holding that case
is made out to grant mandatory injunction for the supply of
electricity to the suit premises ?
7 Issue notice to the respondents after admission. Learned
Advocate Mr. P.B. Shirsath waives notice for the respondent No.1 and Learned
Advocate Mr. A.M. Gaikwad waives notice for respondent Nos.2 to 4.
8 Call Record and Proceedings.
9 Civil Application No.12506 of 2011 for stay to be considered at
the time of final hearing.
( Smt. Vibha Kankanwadi, J. )
agd
