Ramesh Nanurao Sawant vs Vinay Ramesh Sawant
2023 Latest Caselaw 3661 Guj

    C/SCA/21351/2022                                       CAV JUDGMENT DATED: 29/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 21351 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2      To be referred to the Reporter or not ?                                    YES

3      Whether their Lordships wish to see the fair copy                          NO
       of the judgment ?

4      Whether this case involves a substantial question                          NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAMESH NANURAO SAWANT Versus VINAY RAMESH SAWANT ========================================================== Appearance:

MR YN RAVANI(718) for the Petitioner(s) No. 1,2 MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2 MR APURVA R KAPADIA(5012) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 29/04/2023

CAV JUDGMENT

1. Present petition is filed being aggrieved by and

dissatisfied with the judgment and order dated 01.07.2022

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

passed below Exh.7 in Civil Suit No.247 of 2022 by the

learned City Civil Court, Ahmedabad by which, the application

filed by the present petition below Exh.7 for granting

injunction is rejected.

2. Present petitioners have prayed for the following reliefs:-

11(A) be pleased to admit and allow this petition.

(B) be pleased to issue a writ of Certiorari and/or any

other appropriate writ, order or direction in the nature

of Certiorari quashing and setting aside the impugned

order dated 01.07.2022 passed by the learned

Ahmedabad City Civil Court, Ahmedabad below Exh.7 in

Civil Suit No.247/2022 and be further pleased to quash

and set aside the order dated 14.09.2022 passed by the

respondent no.2 Electricity Company of not granting the

electricity connection and be further pleased to direct

the respondent authority to forthwith restore the

electricity connection No.2868361 at the suit premises.

(C) pending admission, hearing and/or final disposal of

this petition, be pleased to stay the execution,

implementation and operation of the impugned order

dated 01.07.2022 passed by the learned Ahmedabad

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

City Civil Court, Ahmedabad below Exh.7 in Civil Suit

No.247/2022 and be further pleased to direct the

respondent authority to forthwith restore the electricity

connection No.2868361 at the suit premises.

(D) such other and further orders as Your Lordships

may deem just, fit and expedient be passed in favour of

the petitioners.

3. Brief facts of the present case are under:-

3.1 It is the case of the petitioners that petitioner no.1

herein is father of petitioner no.2 and respondent no.1 herein.

Petitioner no.2 and respondent no.1 are real siblings.

Petitioner no.1 was an officer of customs and excise

department and retired as Superintendent thereof. Petitioner

no.2 is a dress designer and started business as dress

designer in March, 2009 in a rented premises situated in a

building named Saranya Avenue, Ground Floor, Shop No.G-

01, admeasuring 34.36 sq,mtrs., which is situated on sub-plot

no.47, admeasuring 464 sq.mtrs, F.P. No.163+164, T.P.

Scheme No.19 of mouje Shaikhpur - Khanpur, Taluka City,

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

District Ahmedabad. Later on, petitioner no.1 being father

decided to purchase property to carry on business in the name

of Sai Ethnics, which was initially a proprietorship concern of

petitioner no.2. Petitioner no.1 has purchased the property in

the name of respondent no.1 - son.

3.2 That a partnership deed was executed between the

petitioner no.2 and wife of respondent no.1 for carrying on the

business in the name and style of Sai Ethnics. Since the shop

was purchased in the name of respondent no.1, electricity

connection was obtained in the name of respondent no.1.

3.3 It is noted that on 12.08.2013, the relation between

respondent no.1 and his wife became stressful and therefore,

she left the him and filed suit for divorce at Family Court,

Baroda. It is further stated that the divorce had taken place

and some of the amount had been paid from the account of

petitioner no.1 towards settlement of divorce. Thereafter,

after the divorce, the partnership deed was modified and now

equal partnership between petitioner no.2 and respondent

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

no.1. It is further stated that after remarriage of respondent

no.1, his relationship with the petitioners became stressful

and respondent no.1 filed a suit being Civil Suit No.1322 of

2021 seeking a prayer to get evicted the petitioners from the

suit property.

3.4 It is further the case of the petitioners that due to

vengeance, the respondent no.1 applied to the Electricity

Company to disconnect the electricity connection of the suit

premises. The respondent no.2 without verifying the fact

about the real occupier of the premises, disconnected the

electricity connection on 26.02.2022 upon the say of the

respondent no.1. The petitioners herein immediately on

05.03.2022 gave an application for re-installation and re-

starting of electricity connection at the premises, however,

such attempts have failed.

3.5 Thereafter, the petitioners have filed Civil Suit no.247 of

2022 before the Ahmedabad City Civil Court seeking a prayer

against the respondent no.2 Electricity Company to restore

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

the electricity connection and also, seeking declaration that

the disconnection thereof dated 26.02.2022 is illegal and

contrary to law.

3.6 After hearing the parties, the learned trial Court rejected

the application Exh.7 of the petitioners on the ground that the

petitioners are having an alternative remedy of seeking new

connection in the name of the partnership firm or to approach

the authority by order dated 01.07.2022. Several attempts

were made by the petitioners to get the electricity connection

back, but inspite of the same, the respondent no.2 - Electricity

Company did not restore the electricity connection. Therefore,

the present petitioners are here before this Court.

4. Heard Mr. Y.N. Ravani, learned advocate appearing for

the petitioners; Mr. Apurva Kapadia, learned advocate

appearing for the respondent no.1 and Mr. Anup K. Trivedi,

learned advocate appearing for the respondent no.2.

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

5. Mr. Apurva Kapadia, learned advocate appearing for the

respondent no.1 has raised preliminary objection by

submitting that no petition under Article 227 of the

Constitution of India can be maintainable as the order passed

below Exh.7 in the civil suit is essentially under the provision

of Order 39 Rule 1 and 2 of the CPC, against which, only an

appeal from order under the provision of Order 47 Rule 1 & 2

can be maintainable. He has further submitted that even the

second part of the main prayer prayed in the present petition

is regarding the directions to the respondent authority to

restore the electricity connection no.2868361 forthwith at the

suit premises, which is also required to be challenged by way

of independent petition under Article 226 of the Constitution

of India and that petitioners will be listed before the another

court as per the roster. Therefore, he has raised two

preliminary objections by submitting on merits of the matter if

requires. Therefore, the matter is taken for final disposal.

6. Mr. Y.N. Ravani, learned advocate appearing for the

petitioners has drawn my attention to the application at Exh.7

and impugned order passed by the learned trial Court. He has

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

also drawn my attention to the suit property in question being

Shop No.G-01, admeasuring 34.36 sq,mtrs., which is situated

on sub-plot no.47, admeasuring 464 sq.mtrs, F.P.

No.163+164, T.P. Scheme No.19 of mouje Shaikhpur -

Khanpur, Taluka City, District Ahmedabad and submitted that

the present petitioners and respondent no.1 are related.

Petitioner no.1 herein is the father and respondent no.1 is the

son. He further submitted that the property is jointly owned

by the present petitioner no.1 and as well as respondent no.1

and petitioners have undevided share in the property in

question. He has also averred in the plaint that in the suit

property, the partnership firm in the name of Sai Ethnics was

running and they are having electricity connection in the suit-

property, which was granted by the respondent no.2 herein.

As per the instructions of respondent no.1, the respondent

no.2 has disconnected the connection, which is connection

No.2868361, without any prior intimation or without any

permission obtained from the present petitioners and though

the petitioners have made several attempts by pursuing the

respondent no.2 to re-connect the connection. It came to the

knowledge of the present petitioners that at the instance of

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

respondent no.1, who has applied to dis-connect the

electricity connection of the petitioners, the respondent no.2

disconnected the same. Therefore, they have filed an

application for mandatory injunction as prayed in paragraph-9

of that application Exh.7 in the suit. It is also found that the

said suit is pending and application Exh.7 is decided whereby,

the learned trial Court after considering the various aspects of

the matter and considering the fact that the nature of relief is

to be considered in view of Section-41(h) of the Specific Relief

Act and the learned Court has found that since the petitioners

- plaintiffs herein can have alternative efficacious remedy

available to them, the application is dismissed. He has

submitted that this finding of the learned trial Court is highly

erroneous, unjust and improper. He has also submitted that

merely alternative remedy is available to the present

petitioners, this court cannot refuse to exercise powers under

Article 226 and 227 of the Constitution of India. He has drawn

my attention towards the memo of petition by submitting that

in the memo of petition, he has mentioned the petitioner is

under Article 226 of the Constitution of India and therefore,

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

the petition should be treated as under Article 226 of te

Constitution of India.

7. Mr. Ravani, learned advocate for the petitioners has also

submitted that the electricity supply is essential supply and it

cannot be disconnected in arbitrary and improper manner. He

has also submitted that the petitioner no.1 is aged more than

75 years and with a view to harass the present petitioners, the

respondent no.1 has informed the respondent no.2 to

disconnect the power supply from the premises. He has also

submitted that the learned trial Court has committed an error

by saying that the petitioners are using generator. It cannot

be said that he has having hardship in absence of any

electricity connection, this observation of the learned trial

Court is required to be dealt with in appropriate. He has

relied on the various judgments in support of his case, which

is as under:-

       (1)     2021 (0) AIJEL - SC 67009
       (2)     1998 (8) SCC 1
       (3)     2022 LiveLaw (SC) 570
       (4)     LPA No.91 of 2010
       (5)     SCA No.6281 of 2021
       (6)     SCA No.12352 of 2009
       (7)     AIR 1967 SC 1857






  C/SCA/21351/2022                           CAV JUDGMENT DATED: 29/04/2023

8. Mr. Ravani, learned advocate for the petitioners further

submitted that in the case of Surya Dev Rai Vs. Ram Chander

Rai reported on (2003) 6 SCC 675, the Court has ample power

in Article 226 and 227 of the Constitution of India and the

Court certainly cannot appropriate relief, more particularly,

when the essential supply like electricity is deprived by way of

arbitrary action. He has submitted that in view of the

preliminary objection raised by the learned advocate for the

respondent no.1, he has submitted by relegating the present

petitioners alternative remedy available under the provision

sof Order 43 Rule 1 will not proper in the instance case, which

amounts to create more hardship of the present petitioners

and therefore, he prays to allow this petition by passing

appropriate order.

9. Per contra, Mr. Apurva Kapadia, learned advocate

appearing for the respondent no.1 has strongly objected the

prayers made at bar. He has submitted that in view of the

provisions of Order 43 Rule 1, the impugned order, which is

essentially under the provisions of Order 39 and therefore, on

the ground of alternative efficacious remedy, the petition

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

deserves to be dismissed. Later part of the prayer clause in

the present petition i.e. for necessary connection, the

petitioners can always apply before the respondent no.2,

which can be considered in accordance with law and if he is

aggrieved by any action of respondent no.2, then they can

independently challenge that part by separate petition under

Article 226 of the Constitution of India, which subject

otherwise not allowed as per the present roster to this Court.

He has submitted that the trial Court has on merits rightly

observed that no case is made out for granting any relief as

the property is also in possession of the respondent no.1 and

no mandatory relief can be granted at this stage and more

particularly, an alternative efficacious remedy is available, the

petitioner can certainly avail that and therefore, also interim

order passed below Exh.7 is valid and proper. He has heavily

relied on the judgment reported in AIR 1984 SC 38; 2019 (9)

SCC 538; 2022 (0) AIJEL-SC 69474 and 2016 (1) GLR 574 and

has submitted that the prayers made in the present petition is

misconceived as the petitioners have an alternative efficacious

remedy, they should be relegated to that remedy.

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

10. Mr. Anup K. Trivedi, learned advocate appearing for the

respondent no.2 has drawn my attention to the averments

made in the affidavit-in-reply filed in the present petition and

has submitted that the respondent no.2 - Electricity Company

already intimated the present respondent no.1 by letter dated

08.03.2022 informing that the electricity connection was

disconnected on the application of respondent no.1 after

following due procedure and therefore, such action shall be

challenged by way of appropriate proceedings, but not in the

present petition. He has also submitted that the learned trial

Court while rejecting the injunction application observed that

the petitioners were at liberty to apply for new electricity

connection. He has further submitted that the respondent

no.2 has also applied the provisions of Section 43 of

Electricity Act and accordingly, though the respondent no.2

has informed the petitioners to complete the procedural

formalities by providing requisite documents, till date of filing

of affidavit, but the petitioners have not provided any

documents. Accordingly, he has submitted that this Court may

pass appropriate order in the present petition.

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

11. However, Mr. Kapadia, learned advocate appearing for

the respondent no.1 has submitted that no case is made out to

exercise power under Article 226 and 227 of the Constitution

of India. He is heavily on the business assigned to this Court

of present roster and has submitted that no relief can be

prayed as prayed in the petition by this Court as alternative

efficacious remedy is available under the law.

12. I have considered the rival submissions made at the bar.

I have also considered the pleadings of the parties. I have also

considered the impugned order passed below Exh.7

application. I have perused the order itself. It transpires that

the order passed under the provisions of Order 39 Rule 1 & 2

of the CPC read with Section-151 of CPC reads thus:-

Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.-Where in any Suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

Order-XXXIX, Rule-2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by Order grant such injunction, on such terms, as to the duration of the injunction, keeping

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

an account, giving security, or otherwise, as the court thinks fit.

Sub-rules (3) and (4) omitted by Act 104 of 1976, w.e.f. 1-2-1977.

Sec.-151 Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

13. Considering the preliminary objections raised by the

learned advocate Mr. Kapadia, which is also objection on the

merit during the course of argument. Regarding his

submission, there is an alternative remedy under the

provisions of Order 39 Rule 1 & 2, it is found correct and

prima-facie. It transpires that the petitioners ought to have

filed proceedings under the provisions of Order 43 Rule 1(r)

and in the facts and circumstances of the present case. The

judgment which is cited at the bar by the learned advocate for

the respondent is helpful to the present case and accordingly,

I found that there is substance in the submission made at the

bar. However, Mr. Ravani tried to pursue this court by relying

various judgments of Hon'ble Apex Court as well as Hon'ble

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

High Court on the jurisdiction of the Court under Article 226

of Constitution and more particularly, he has submitted that

under Article 226, the Court is entitled to enquire into

whether the action of the State or its instrumentalities is

arbitrary or unfair and in consequence, in violation of Article

14. It also transpires that the jurisdiction under Article 226 is

a valuable constitutional safeguard against an arbitrary

exercise of state power or a misuse of authority. Considering

those judgment, the Court has also put a rider that in

determining as to whether the jurisdiction should be exercised

in a contractual dispute, the Court must, undoubtedly eschew,

disputed questions of fact, which would depend upon an

evidentiary determination requiring a trial. From the

judgment, which is relied by the learned advocate for the

petitioner Mr. Ravani, that does not open for the Insurance

Company to decide about the legality and propriety of the

ownership of premises of the peron, who is asking for

electricity connection. In substances, Mr. Ravani has also

tried to pursue this Court by referring Article 12 of the

Constitution which defines the meaning of 'State' in view of

judgment reported in AIR 1967 SC 1857. The Electricity

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

Board is 'State' withing the Article and therefore, he has

stated that the present petition is filed against the private

respondents as well as State and therefore, is maintainable in

eye of law. However, these aspects are required to be

considered by keeping in mind that the petitioners who are

the plaintiffs, have filed present application Exh.7 for

injunction, which is pertaining to the electricity connection

and the Court has rightly dealt with all these aspects in the

impugned order and therefore, assuming for the sake of

argument, the application Exh.7 is filed under the provisions

of Section 151 of the CPC only, then also, by exercising

powers under Article 226 of the Constitution of India, this

Court has limited jurisdiction to interfere with such matter

and unless the findings are perverse or illegal or serious

lacuna of jurisdiction, then only, the Court should exercise

powers, more particularly, the jurisdiction of this Court

pertains to the matters arise from the proceedings from the

Civil Court and therefore, it is very limited under Article 227

of the Constitution. In view of the judgment rendered by the

Hon'ble Apex Court in the case of M/s. Garment Craft Vs.

Prakash Chand Goel reported in (2022) 4 SCC 181 in

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

Paragraphs-15 to 17, this Court has limited jurisdiction under

Article 227 of the Constitution.

14. Now considering the aspects of second part of prayer i.e.

permitting the respondent no.2 - Electricity Company to give

connection, for that, the affidavit filed by the respondent no.2

is very clear and the respondent no.2 has submitted that if the

present petitioners will file necessary documents alongwith

such application, the respondent no.2 will certainly consider

such application in accordance with law and also without

keeping any prejudice towards the petitioners. Therefore, this

Court found appropriate while disposing of this petition by

directing the present petitioners to file appropriate

application before the respondent authority in accordance

with law in prescribed format with necessary documents

within 10 days from the date of receipt of copy of the order

and the respondent authority shall consider such application

within week thereafter by considering the fact that the

electricity supply is essential service and every citizen should

get opportunity so without expressing any opinion on the

merits, only regarding this limited aspect to give electricity

C/SCA/21351/2022 CAV JUDGMENT DATED: 29/04/2023

connection to the present petitioners, the respondent

authority shall consider such application after fulfilling the

necessary requirement of the documents in positive manner,

act and just manner. It is noted that the petitioner no.1 is

aged about 75 years and the dispute is unfortunately between

the father and son and therefore, considering the fact that the

father is without any electricity connection.

15. With the above observation, the petition is disposed of.

(SANDEEP N. BHATT,J) A. B. VAGHELA