Pannalal Dhimaram Alias Pappu ... vs Navin Jhaveri
2022 Latest Caselaw 11594 Bom

                                                                       4.ao.819-22.doc

                PMB
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

         Digitally
         signed by               APPEAL FROM ORDER NO.819 OF 2022
                                              WITH
         PRADNYA
PRADNYA  MAKARAND
MAKARAND BHOGALE
BHOGALE

                               INTERIM APPLICATION NO.17465 OF 2022
         Date:
         2022.11.15
         18:43:04
         +0530




                      Pannalal Dhimaram alias Pappu Bishnoi  ..Appellant
                           vs.
                      Navin Jhaveri                          ..Respondent
                                             ------------
                      Dr. Abhinav Chandrachud i/b. Khan Javed Akhtar a/w Mr.
                      Amit J. for appellant.
                      Mr. Rajesh P. Khobragade a/w Raj S. Gupta, Ms. Gayatri
                      Nayak, V. P. Khobragade and Mr. Abhijeet Naik for
                      respondent.
                                            ------------
                                          CORAM : M. S. KARNIK, J.

                                             DATE      : NOVEMBER 15, 2022.
                      P.C. :

1. The appellant-original plaintiff by this Appeal From

Order filed under Order XLIII of the Code of Civil Procedure,

1908 challenges an order dated June 27, 2022 passed by

the trial Court refusing ad-interim reliefs in the Notice of

Motion filed by the plaintiff.

2. The plaintiff filed a suit for permanent injunction

against the defendant from dispossessing the plaintiff or in

any manner creating any hitch, hindrances, impediments,

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obstacles or obstruction in the peaceful use, occupation and

possession of the plaintiff in respect of the suit premises,

viz. gala (hereafter "the suit gala", for short) of the

dimension of 36 X 60 sq. ft. admeasuring 2160 sq. ft.

situated at Plot No.72, 2 nd Cross Lane, Mazagaon, Reay

Road Station South, Darukhana, Mumbai. The plaintiff also

prayed for an order of temporary injunction against the

defendant to issue consent in favour of electric

Company/Brihanmumbai Electricity Supply and Transport

Undertaking (hereafter "BEST", for short) for the purpose of

installing or re-installing of electric meter at the suit

premises.

3. During the pendency of the suit, the plaintiff filed a

Notice of Motion for interim reliefs and prayed for ad-

interim reliefs. By the impugned order dated June 27, 2022,

the trial Court refused ad-interim reliefs in favour of the

plaintiff in the Notice of Motion.

4. It is an admitted fact that the suit gala was allotted to

the defendant as a tenant of Bombay Public Trust (hereafter

"BPT", for short). The plaintiff avers that he was inducted in

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the suit property in the year 2016. According to him, he

paid Rs.55,00,000/- to the defendant for buying the suit

property. It is contended that the plaintiff has paid rent in

respect of the suit gala. The plaintiff relied upon the letter

of BPT dated March 16, 2020 to establish his case regarding

occupancy of the suit gala. It is the case of the plaintiff that

at the instance of the defendant, the BEST disconnected the

electric supply to the suit premises. A request for

appropriate directions is made in the form of no objection

from the defendant in reinstalling the electric connection.

5. Mr. Chandrachud, learned counsel for the appellant

submitted that the appellant is in a settled possession of the

suit gala. According to him, a substantial sum of money was

paid to the defendant for occupation of the suit premises. It

is submitted that sometime in June 2022 when the BPT

issued notice to the defendant that he has unlawfully sublet

the suit gala to the plaintiff, that the defendant complained

to the BEST. Learned counsel for the appellant submitted

that such a complaint made by the defendant to the BEST is

not in good faith and therefore, the trial Court should have

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directed the defendant to issue a no objection certificate for

restoration of the electricity connection which was in

existence before the complaint was made by the defendant.

Learned counsel for the appellant submitted that without

even hearing the plaintiff, the three phase electricity

connection was disconnected. It is submitted that the

plaintiff was carrying on his business from the suit gala

which is seriously affected due to lack of proper electricity

connection. Learned counsel for the appellant submitted

that there was no default on the part of the plaintiff in

payment of electricity charges and for this purpose he relied

upon the various electricity bills. It is further submitted that

so far as the electricity charges for the suit gala is

concerned, the plaintiff is ready and willing to pay the

necessary charges and even though it is their case that

there are no arrears, it is submitted that arrears, if any, will

be cleared forthwith. My attention is invited to the

statement of the defendant dated June 2, 2022. In the said

statement the stand is taken that electricity meter No.B-

147794 has been removed by the electricity department as

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there was default on the part of the plaintiff in paying the

electricity bill. However, according to learned counsel, there

has been no default and it is on the basis of the complaint

made by the defendant the electricity meter was removed.

My attention is also invited to the complaint made by the

defendant to the Senior Police Inspector, Sewri Police

Station, wherein allegations are made that the electricity

connection was obtained by the plaintiff with the use of

fraudulent documents. Learned counsel for the appellant in

support of his submissions that rent was regularly paid to

the BPT and to support his case of settled possession relied

upon several documents. In support of his submissions,

learned counsel relied upon the following decisions :-

1. Rame Gowda (Dead) By LRs. vs. M. Varadappa Naidu (Dead) By LRs. and another1.

2. Manishi Maity vs. West Bengal State Electricity Distribution Company Ltd.2.

3. Abhimanyu Mazumdar vs. Superintending Engineer and another3.

4. S. B. Noronah Vs. Prem Kumari Khanna4.

5. Ram Sarup Gupta (Dead) By LRs. vs. Bishun 1 (2004) 1 SCC 769 2 2012 SCC OnLine Cal 4802 3 2011 SCC OnLine Cal 362 4 (1980) 1 SCC 52

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Narain Inter College and others5.

6. Mr. Khobragade, learned counsel for the respondent-

original defendant on the other hand invited my attention to

the findings of the trial Court. In his submission, the three

phase electricity supply was obtained by the plaintiff by

playing fraud and forgery. Learned counsel invited my

attention to the criminal complaints filed in respect of the

said fraud and forgery while obtaining the electricity

connection. It is further submitted that the electricity supply

has been rightly disconnected as the plaintiff was in arrears

of electricity charges. Learned counsel submitted that the

plaintiff is raising contradictory stands, as on one hand, the

plaintiff says that the suit gala was purchased by him,

whereas on the other, claims to be paying rent to the BPT.

Apart from justifying that the trial Court has not committed

any error in refusing the ad-interim relief to the plaintiff,

learned counsel submitted that the Appeal From Order

should not be entertained as the plaintiff has failed to

approach the Court with clean hands and there is

suppression of material facts. In support of his submissions, 5 (1987) 2 SCC 555

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he relied upon the decision of the Supreme Court in the

case of Kishore Samrite vs. State of U. P. and others6.

7. Heard learned counsel at length.

8. Before considering the submissions advanced by

learned counsel, a brief reference to the reasons assigned

by the trial Court while rejecting the prayer for ad-interim

relief in the Notice of Motion need to be quoted. The same

read thus :-

"5. Considering the available material on record and rival contentions, it appears that the plaintiff is in possession of the suit property. There are two electric meters. The plaintiff has not pleaded details of the electric meter which is disconnected. He has also not placed on record copy of electric bill with the particulars of the Consumer Number. The plaintiff has not given details of electric meter or consumer number which is to be reinstalled. The plaintiff has not only suppressed the material fact of two electric meters connection but also avoided to plead particulars of the electric meter connection which he wants to reinstall. As the plaintiff has not approached to the court with clean hands. The particulars of the fact pleaded by him are vague and demonstrate intentional suppression of facts. It would not be appropriate to grant ad interim or interim relief without conducting hearing in the notice of motion by taking affidavit in reply of the defendant on record. It is pertinent to note that the defendant had filed short reply immediately on the next day of his appearance in the matter. Hence, prayer for ad interim relief in Notice of Motion No.1910 of 2022 is rejected."

6    (2013) 2 SCC 398


                                                   4.ao.819-22.doc

9. The trial Court records that it appears plaintiff is in

possession of the suit gala. A reading of the reasons

assigned by the trial Court would show that it proceeded on

the footing that the plaintiff has not approached the Court

with clean hands and suppressed the material fact of two

electric meter connections and also avoided to plead

particulars of the electric meter connection which he wants

to reinstall. The trial Court was of the view that the facts

pleaded by him are vague and demonstrate intentional

suppression of facts. In my opinion, the trial Court has

completely misdirected itself as regards the controversy

involved and the purpose of the plaintiff approaching the

Court with a prayer for ad-interim relief. The trial Court has

proceeded on technicalities. The Supreme Court in S. B.

Noronah (supra) in paragraph 6 has observed that

"Pleadings are not statutes and legalism is not verbalism.

Common sense should not be kept in cold storage when

pleadings are construed." The Supreme Court then in Ram

Sarup Gupta (Dead) By LRs. (supra) held that the

pleadings should be liberally considered and the substance

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has to be seen. No doubt, in the present case what is under

consideration is only a refusal of an ad-interim order, even

then, the trial Court ought to have to take into

consideration the principles of a prima facie case, the

balance of convenience and the irreparable loss, if the

plaintiff seeks ad-interim protection.

10. The facts in the present case, prima facie, reveal that

the plaintiff is in possession of the suit gala and had applied

for a three phase electric meter connection for the purpose

of carrying out his commercial activities. There are rent

entries on record which indicate that the rent was being

paid by the plaintiff. There appears to be a transaction

between the plaintiff and the defendant in the course of

which the plaintiff came in possession of the suit gala. It is

the defendant's case that the plaintiff fraudulently obtained

the electricity connection by using false and bogus

documents purportedly signed by the defendant. These are

issues which are subject matter of trial. From the pleadings

on record, at this juncture, it is seen that the plaintiff was in

possession and was utilising the electricity from the electric

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meter installed at the time of its disconnection allegedly on

the complaint made by the defendant. The suit gala was

allotted to the defendant as a tenant of the BPT. The BPT on

March 16, 2020 informed the joint tenants that the suit gala

was unauthorisedly sublet to the plaintiff. The BPT objected

to such subletting and called upon the joint tenants to

rectify the breach. Till then, they (defendant including) did

not have any objection to the plaintiff's electricity

connection being used for commercial activities. It is only

thereafter that the defendant started taking steps against

the plaintiff, which in my prime facie opinion, was only to

escape the rigours of BPT taking back the suit gala upon

termination of defendant's tenancy. The defendant filed

criminal complaints against the plaintiff, and according to

the plaintiff approached the BEST for disconnection of the

electric supply. In my opinion, if the electric supply has

been disconnected only on the basis of the complaint made

by the defendant, such action is prejudicial to the plaintiff.

11. It is true that BEST is not a party to the proceedings.

If the electricity connection is disconnected for non-

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payment of dues, it is for the plaintiff to clear the arrears

and apply for re-connection which the BEST will consider.

However, when the plaintiff is in a settled possession, the

remedy of the defendant is to proceed against the plaintiff

in accordance with law, if according to him the plaintiff's

possession is unauthorised. On the date of disconnection of

the electricity connection the plaintiff was carrying on the

commercial activities on the basis of the electricity

connection which was obtained by him. Till the plaintiff

continues in occupation, there is no reason why at the

instance of the defendant, the electricity connection should

be disconnected by the BEST. Even the defendant should

have no objection to the plaintiff's using electricity as an

occupier of the premises. In the present facts, prima facie it

is seen that the defendant has objected to the user of the

three phase electricity connection only after the BPT pointed

out that the plaintiff is in unauthorized occupation of the

premises.

12. It is of course open for the BPT to proceed against

such alleged unauthorized occupation/subletting or even the

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defendant may take steps against the plaintiff in accordance

with law but the insistence on the part of the defendant that

the electricity connection of the premises (three phase)

should be disconnected only on the ground that some issues

have arisen between the plaintiff and the defendant is not in

consonance with fair play and justice. Subject to clearing

the arrears and subject to any other legal impediments,

there is no reason why the BEST should not restore the

electricity connection in respect of the suit gala as claimed

by the plaintiff. So far as possession is concerned, even the

trial Court found that the plaintiff is in possession.

13. In the light of the judgment of the Supreme Court in

Rame Gowda (Dead) By LRs. (supra), the plaintiff being

in a settled possession cannot be dispossessed without

recourse to law. Further, the plaintiff being the occupier of

the premises, in terms of Section 43 of the Indian Electricity

Act, 2003 it is the duty of the electricity company to supply

electricity on request of the occupier. Learned counsel for

the plaintiff is justified in placing reliance on the decision of

the Calcutta High Court in the case of Abhimanyu

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Mazumdar (supra) in support of this submission. Further,

the objections raised by the respondent that no proper

details of electricity meter connection are furnished which

weighed with the trial Court, according to me, at this stage

need to be regarded as technical objections. The Supreme

Court in the case of S. B. Noronah (supra) has in

paragraph 6 held that common sense should not be kept in

cold storage when pleadings are construed. In the present

case, the question of grant of ad-interim relief is to be

decided only on the basis of the pleadings and the materials

on record as the evidence is yet to be led. So far as the

decision relied upon by learned counsel for the respondent

in Kishore Samrite (supra) is concerned, on facts the

decision is distinguishable. At this stage, it cannot be said

that the plaintiff approached the City Civil Court with

unclean hands. Suffice it to observe that the allegations of

the respondent about the fabrication made by the plaintiff

while obtaining the electricity connection is something that

needs to be proved by him in the course of trial based on

evidence. Even otherwise, as an occupier the plaintiff can

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apply for electricity connection in accordance with law. The

Notice of Motion filed before the trial Court deserves to be

allowed.

14. Hence, the following order :-

ORDER

(i) The Appeal From Order is allowed.

(ii) The impugned order of the City Civil Court dated June 27, 2022 is set aside.

(iii) The prayer of ad-interim relief in terms of prayer clauses (a) and (b) of the Notice of Motion No.1910 of 2022 filed before the City Civil Court is granted. Clauses (a) and (b) read thus :-

"(a) That this Hon'ble Court may be pleased to pass an Order and temporary Injunction against the Defendant restraining the Defendant, his family members, his agents, representatives, servants and agents, officers from dispossessing the Plaintiff or in any manner creating any hitch, hindrances, impediments, obstacles or obstruction in the peaceful use, occupation and possession of the Plaintiff in respect of the suit premises, viz.

gala admeasuring about 36 X 60 sq.ft.

admeasuring about 2160 sq.ft. situated at Plot No.72, 2nd Cross Lane, Mazagaon, Reay Road Station south, Darukhana, Mumbai - 400 010.

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(b) That this Hon'ble Court may be pleased to pass an Order and temporary Injunction against the Defendant to issue consent in favour of electric Company/BEST Undertaking for the purpose of installing or re-installing of electric meter at the suit premises, viz. gala admeasuring about 36 X 60 sq. ft. admeasuring about 2160 sq.ft. situated at Plot no.72, 2 nd Cross Lane, Mazagaon, Reay Road Station south, Darukhana, Mumbai - 400 010."

(iv) In case the respondent does not give his consent within three days from today, the BEST may proceed with installing or re-installing the electric meter subject to clearing of the arrears and payment of necessary charges by the appellant and subject to any other legal impediments.

(v) The trial Court may proceed to decide the Notice of Motion No.1910 of 2022 on its own merits and in accordance with law and preferably within a period of twelve weeks from today.

(vi) The trial Court not to be influenced by any observations made by me in this order while deciding the Notice of Motion which may be decided on its own merits.

15. The Appeal From Order stands disposed of with no

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order as to costs.

16. In view of the disposal of the Appeal From Order,

nothing survives for consideration in the Interim Application

and the same stands disposed of accordingly.

17. After the order is pronounced, a request is made by

learned counsel for the respondent for stay of this order.

The request is rejected.

(M. S. KARNIK, J.)