Abdul Khaliq vs Bses Yamuna Power Ltd & Anr
2013 Latest Caselaw 571 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+             RSA No.127/2012 & CM 12979/2012


                                     Decided on : 06.2.2013


       ABDUL KHALIQ                             ..... Appellant
                            Through Mr.S.D.Ansari with Mr.I.Ahmed,
                            Advs.


                            versus

       BSES YAMUNA POWER LTD & ANR      ..... Respondents
                    Through Mr.Manish Srivastava,
                    Adv. for R-1

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed against the

judgment dated 23.4.2012 passed by Sh. O.P.Gupta,

District Judge, upholding the judgment dated

22.12.2011 passed by the Civil Judge (West), Delhi.

2. I have heard Mr.Ansari, learned counsel for the

appellant.

3. The learned counsel for the appellant has not been able

to make out any substantial question of law arising from

the appeal.

4. The questions which have been formulated in the appeal

by the appellant are essentially questions of fact. For

reference, these questions are reproduced as under:-

(i) Where various litigations are pending and going on between the parties, whether the title of a party can be decided without first recording evidence?

(ii) When once electricity connection has been mutated in the name of the appellant, can the same undergone without notice to the appellant?

(iii) Whether the right of hearing is integral part of principles of natural justice, even if the Rules are silent?

(iv) Where the title of the property is in dispute, court can ignore the importance of possession or take away the possessory right of the party?

(v) Whether prima facie the party in possession of the property is entitled to enjoy electricity in his name, especially when the other claimant's title is yet to be decided?

5. The suit was originally filed by the present

appellant/plaintiff against BSES Yamuna Power Ltd.

praying therein for a decree of permanent injunction for

restraining the defendant/BSES from issuing electricity

bill in respect of the meter installed at shop no.11,

Cotton Market, Jama Masjid, Delhi in the name of Razia

Begum or any other person.

6. The respondent/BSES filed the written statement and

raised preliminary objections regarding the locus of the

appellant to file the suit. It was also stated that no cause

of action has accrued to the appellant because the shop

in question was originally allotted on licence basis to one

Abdul Rauf, husband of Razia Begum by the DDA who

had expired and thereafter, the shop was mutated in the

records of the DDA in favour of Razia Begum as the

licencee and therefore, electricity connection was

sanctioned in favour of Razia Begum. It was stated that

the bills could be raised in her name as the electricity

connection was in her name.

7. On these pleadings of the respondent no.1/defendant,

the appellant/plaintiff impleaded Razia Begum as the

defendant no.2 in the suit.

8. On completion of pleadings, the trial court framed a

preliminary issue as to 'whether the plaintiff has any

cause of action against the defendants? OPP'

9. Since this was an issue which was to be decided on the

basis of the pleadings and the documents on record and

there was no prayer on behalf of the appellant for

permitting him to adduce any evidence, consequently,

arguments were heard and this issue was decided

against the appellant. The reason for deciding this issue

against the appellant was that the respondent no.2/

Razia Begum was stated to be the transferee/licencee by

the DDA and a letter in this regard was also placed on

record. The stand of the respondent no.1 was that the

electricity connection could be issued only in favour of

the respondent no.1 and merely because the appellant

was claiming himself to be in possession of the shop in

question that in itself is not a ground for sanctioning of

the electricity connection or for changing the meter in the

name of the appellant or even raising the bill in his

name.

10. As a matter of fact, the suit was dismissed on this

preliminary objection though it ought to have been

rejected and the issue which ought to have been framed

is as to whether the plaint is liable to be rejected under

Order 7 Rule 11 (a) CPC which specifically deals with the

situation where a plaint is liable to be rejected on the

ground of lack of cause of action.

11. Be that as it may, the appellant feeling aggrieved by the

said judgment preferred an appeal before the Court of

District Judge which was heard and decided against the

appellant vide the impugned judgment dated 23.4.2012

upholding the judgment of the trial court. Thus, there is

a concurrent finding of the Courts below that the

respondent no.2 /Razia Begum is the licencee in respect

of the shop in question and the meter was installed in her

name. It was also held by the Courts below that the

appellant/plaintiff being only in possession cannot claim

that the electricity meter shall be transferred in his

name.

12. This being a question of fact and no substantial question

of law arises from the present regular second appeal,

accordingly, the appeal is totally misconceived and the

same is dismissed.

V.K. SHALI, J.

February 06, 2013 RN