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Judgment
S.S. Subramani, J.—This Appeal by the third defendant in C.S. No. 1664 of 1993, on the file of this Court, is against the order passed by a
learned single Judge of this Court in Application No. 4334 of 1994. The suit was originally filed before the City Civil Court, Madras, as O.S. No.
3978 of 1991, for passing a mandatory injunction, directing the appellant and respondents 2 and 3 (defendants in that suit) to restore electric
connection to the plaintiff''s bunk described in the plaint schedule, which was cut off by the defendants on 1.6.1991.
The material averments as seen from the plaint are as follows:
Land bearing Plot No. 1-A, Nungambakkam High Road, measuring about 13625 sq. ft., i.e., about (sic) grounds and comprised in D.S. No. 156
and Door No. 2, Nungambakkam High Road, Madras belonged absolutely to one Arunachalam Chettiar. The said land was leased to the then
Burmah Shell Oil Storage and Distributing Company of India Limited in the year 1961. Under the provisions of the Burmah Shell Acquisition of
Undertakings in India Act, 1976 (Central Act 2 of 1976), the undertakings of Burmah Shell Oil Storage and Distributing Company of India
Limited at various places vested in the Union Government of India which in turn stood transferred and vested in the 3rd defendant-Corporation
(appellant herein).
One Seshadri Iyer, father of respondents 2 and 3 herein (defendants 1 and 2), was the licensee of the abovesaid land and was running a petrol
bunk. On the death of Seshadri Iyer defendants 1 and 2 continued to be the licensees. It is the case of the plaintiff that he was inducted by the said
Seshadri Iyer as a tenant in respect of the south-eastern portion of the said land in the year 1981. He has installed a bunk in the demised portion
measuring 12 x 12 it. He has paid a sum of Rs. 5,000/- as advance and is paying rent of Rs. 600/- per month. According to him, he has taken that
portion on lease for running a cool drinks shop. Accordingly, he was running a cool drink shop under the name and style of ''''Gemini Cool Drinks
Bar"" in the demised portion. According to the plaintiff, the defendants 1 and 2 are running several businesses in the land mentioned above. They
are, Gemini Auto Service, Gem Carriers and Gemini Financial Services. It is further averred that in the bunk put up by him he is vending only cool
drink, and that he is not selling, coffee, tea, beedi or cigarettes. The original lessor Seshadri Iyer never issued any receipt for the rent paid by the
plaintiff on the ground that since he was only a licensee, he could not give anything in writing. For the same reason, he did not issue any receipt for
the advance paid. It is alleged by the plaintiff that the defendants, with an ulterior motive and evil design, attempted to disturb the plaintiffs peaceful
possession and enjoyment of the bunk and his business, and this compelled him to file O.S. No. 3433 of 1991 for a perpetual injunction restraining
the defendants from in any way evicting or dispossessing the plaintiff from the suit property otherwise than by due process of law. In that suit, he
also filed an application for injunction and the same is pending before the in Assistant Judge, City Civil Court, Madras. In that injunction
application, notice was ordered. While so, according to the plaintiff, the defendants, on 1-6-1991, illegally and unlawfully cut off the electricity
connection to the plaintiff''s bunk. According to the plaintiff, he is vending cool drinks only in the schedule bunk and the cooling process is done by
electric power. According to him, he has installed in the bunk two cooling plants (deep freezers), and, without electric power, he cannot virtually
carry on the business. (sic)ie further says that electricity is drawn from Gemini Auto Services run by defendants 1 and 2, and they have provided
separate meter for the plaintiff, and he has been paying charges for the electricity consumed. It is further said that the electricity connection stands
in the name of the third defendant and the connection was available to him for the last more than 12 years, and from February 1987 onwards the
electricity connection stands in the name of the plaintiff and that he is paying the charges. According to the plaintiff, the cause of action for the suit
arose on 1-6-1991 when the electricity was disconnected by the defendants Making the above statement, he has sought for the mandatory
injunction.
Along with the suit, he has also moved (sic) application for the grant of an interim injunction on the same lines. But no orders were passed
therein. While so, the third defendant in the suit, appellant herein, filed another suit, namely, C.S No. 677 of 1992, for evicting the plaintiff. By
orders of transfer, the suit filed by the plaintiff was withdrawn to this Court and renumbered as C.S. No. 1664 of 1993.
Even though the earlier injunction application is still pending, without giving effect to the same, the plaintiff filed the present application for the
very same relief
A detailed counter was filed by the appellant, stating that the entire lease right has now vested in it, and Seshadri Iyer was only a licensee and on
his death, his sons, respondents 2 and 3 herein are running a retail outlet on behalf of the appellant herein. It is further stated that the appellant being
a Government of India undertaking, can function only according to its objects and cannot deviate from the same. It cannot sublet any portion to
any third party to locate a cool drink shop. Seshadri Iyer has no right to sublet any portion of the demised premises. Even the electric meter stands
in the name of the appellant. The rights of defendants 1 and 2 are only that of licensees and they cannot sublet any portion Legally, possession is
with"" the third defendant. It has also denied the claim of the plaintiff that he was inducted by the late Seshadri Iyer. It is also contended that the
application filed by the plaintiff before the City Civil Court, seeking for an order of injunction was dismissed and the same has become final. It has
also stated that it has not cut off the electricity connection to the bunk, and there is no privity of contract between the third defendant and the
plaintiff. So long as there is no privity of contract, the suit as against it is not maintainable, and it is not obliged to restore electricity connection. It
has also stated that the fact that some people were standing near the bunk shop and were smoking cigarettes was brought to the knowledge of the
third defendant by the Controller of Explosives (South Circle), Madras. From this, the third defendant came to know that the plaintiff has been
selling cigarettes and has been permitting people to stand near the bunk shop to smoke cigarettes, which is highly dangerous. The third defendant-
Corporation is running a retail petrol outlet and the substances are highly in flammable. The petrol bunk is situated in a busy thoroughfare, namely,
Nungambakkam High Road, Madras, and is surrounded by many commercial and residential complexes. If the plaintiff is allowed to run a shop, it
will lead to dangerous consequences.
It is also averred that in O.S. No. 677 of 1992 filed by it for eviction, it claimed a relief of injunction restraining the plaintiff from tampering with
the electricity service connection. An order was granted in O.A. No. 471 of 1992 and the same is still in force. It is further averred that the main
relief prayed for in the suit and the relief sought for in the interim application are one and the same, and, if the relief is granted in the application, it
will amount to decreeing the suit itself, and therefore the same cannot be allowed.
It is further averred that the earlier application was not allowed by the VII Assistant Judge, City Civil Court, Madras, finding that the prayer in
the Application as well as the suit are one and the same, and, therefore, the suit itself was posted for trial.
It is also stated that the application is an abuse of process of Court Where an earlier application is pending, without obtaining an order in that, a
second application for the same relief should not have been filed. The third defendant (appellant herein) has prayed for the dismissal of the
Application.
As per the Order dated 22.11.1994, the learned single Judge, without discussing the rival contentions, held that the respondent shall restore
the electricity connection to the applicant/plaintiff and the applicant shall can on his business as usual''. The learned Judge further ordered that the
applicant shall not vend in his shop cigarettes and beedies and shell vend only cool drinks and other food articles. The learned Judge further held
that the conduct of the applicant will be watched for a period of two months and thereafter an Advocate-Commissioner will be appointed to verify
the position, and that the expenses for restoration shall be borne by the applicant. The learned Judge directed the applicant to directly approach the
Electricity Board for the such purposes. It is against the said Order, the third defendant (third respondent in the Original Application) has filed this
O.S. Appeal.
From the admitted facts, it is clear that the appellant is the lessee of the premises and defendants 1 and 2 are having a retail outlet as licensees.
Admittedly the electric meter stands in the name of the appellant, and the plaintiff has not stated either in the plaint or in the affidavit filed in support
of the application that the third defendant has anything to do with the disconnection of the electricity. It is admitted by the plaintiff himself that he is
occupying a small portion under defendants 1 and 2 and that his claim is only as against them. But in the Order passed by the learned Judge, the
respondent is directed to restore the electricity. Defendants 1 and 2, who are only licensees, are doing business only on behalf of the appellant. The
plaintiff has also no case of any privity of contract with the third defendant-Corporation. Since there is no obligation on the part of the third
defendant (appellant) to provide electricity, the direction given by the learned Judge that the applicant should restore electricity cannot be
supported. It is admitted that defendants 1 and 2 are only licensees and they cannot give a better right to the plaintiff who claims to be a licensee
under them. A licensee who has no interest in the land and who is occupying the same under permission, cannot give a larger right creating an
interest in land in favour of the plaintiff.
Further, it is admitted even in the plaint that electricity connection was disconnected on 1-6-1991, and, by his own admission, he was not
having electricity till the impugned order was passed in 1994, i.e., for nearly 3 1/2 years. The plaintiff did not say that he was put to any hardship
on account of non-availability of electricity. The Appeal was filed on 19-12-1994, and an interim order was passed staving the operation of the
Order on 22-12-1994. But in the meanwhile, the plaintiff, on the basis of the impugned order, moved an application before the Electricity Board
and got electricity connection. According to the plaintiff, he got the electricity connection on 20-12-1994 and hence the interim order passed in the
Appeal has become infructuous. It is also contended that in view of the obtaining of the electricity connection, the appeal itself has become
infructuous.
As per our Order dated 23-1-1995, we directed the plaintiff to file an affidavit stating the correct date and time as to when, how and by whom
the restoration of electricity connection was effected. On the basis of the said Order, he filed an affidavit stating that on 12-12-1994 he paid to the
Electricity Board a sum of Rs. 1,050/- under various heads for restoration and reconnection. It is further averred in the affidavit that electricity was
restored and electricity connection was given to his bunk on 20-12-1994. It is also stated in the affidavit that the Assistant Engineer,
Nungambakkam, the Line Inspector, Foreman, all of the Electricity Board with two workmen of their Department came to the suit property on 20-
12-1994 and gave electricity connection at 10-15 A.M. on 20-12-1994.
When this affidavit was filed, we directed the concerned Section of the Electricity Board to produce before us the relevant file for verification.
Accordingly, the Officer concerned produced before us the file relating to the electricity connection given to the first respondent herein. A
photocopy of the file, which was also produced by him, was retained by us.
On perusing the file, we find that the plaintiff has obtained a new service connection for commercial lighting quite against the Order of this
Court. The learned Judge only directed restoration of the electricity connection which was available in the premises in question before 1-6-1991.
In the affidavit filed by him on 23-10-1994 also, what the plaintiff has stated is, that he has obtained only restoration and reconnection, and the
electricity was restored to him. For getting electricity connection, we find that the plaintiff has also filed and indemnity bond on the allegation that
the owner has refused to give his consent in writing for that purpose. It is also seen from the bond that the plaintiff is claiming himself as the owner
of the premises. Pending suit, the plaintiff has no right to get a new connection. Some misrepresentation has been made before the Electricity Board
and we also find that nothing was stated in the bond about the Order of the learned Judge in this case, and there is no statement regarding the
pendency of the case. It was by suppressing the dispute inter se between the parties, the plaintiff has obtained a new service connection to the
premises in question. It is not restoration of electricity connection as stated in the counter affidavit.
No case was made out by the plaintiff to get a mandatory injunction against the appellant So far as the appellant is concerned, the occupation
of the plaintiff is only that of a trespasser. Without considering the legal relationship between the parties, the learned Judge should not have given
such a direction to restore the electricity. Further, the said direction amounts to decreeing the suit itself without hearing the parties. The order,
therefore, has to be set aside, and we do so accordingly. A question may arise as to what will happen to the new service connection. Since the
connection was obtained by the plaintiff suppressing the litigation between the parties and that too when the same is against the directions of this
Court, the same is liable to be disconnected. The plaintiff is not entitled to get any new connection pending disposal of the suit. The appellant is,
therefore, entitled to make a representation to the Electricity Board and get the new service connection obtained by the plaintiff disconnected. The
order of the learned single Judge is set aside, and the appeal is allowed. No costs.