Surjit Singh vs Mohanjit Singh and Others

L.N. Mittal, J.—This is revision petition by defendant No. 1 Surjit Singh under Article 227 of the Constitution of India assailing order dated 29.1.2009 passed by learned Additional Civil Judge (Senior Division), Mansa thereby disposing of application under Order 39 Rules 1 and 2 read with Section 151 of CPC moved by plaintiff respondent No. 1 Mohanjit Singh and also assailing judgment dated 10.8.2009 passed by learned Additional District Judge, Mansa thereby dismissing petitioner''s appeal against order of the trial court.

Plaintiff and defendant No. 1 are brothers. The plaintiff alleged that plaintiff and defendant not. 1 and other persons were co-sharer and in possession of land measuring 8 kanals comprised of khasra No. 149//2 but in a family partition, the suit land fell to the share of the plaintiff along with electricity motor connection No. AP-231 existing therein and since then the plaintiff is exclusive owner in possession thereof. Writing dated 2.7.1997 regarding family partition was executed. Defendant No. 1 is party to the said writing. Defendant No. 1 has now no concern with the electricity motor connection but defendant No. 1 in connivance with officials of Electricity Board (defendant Nos. 2 and 3) wanted to shift the said connection to some other place. The plaintiff, therefore, sought permanent injunction and also moved application for temporary injunction restraining the defendants from shifting the aforesaid electricity motor connection to some other place during the pendency of the suit.

Defendant No. 1, inter alia, pleaded that he is owner in possession of the electricity connection in question which stands in his name. Accordingly, defendant No. 1 is liable to pay electricity consumption charges thereof and may also be implicated in some case of electricity theft. Defendant No. 1 has controverted the allegations of the plaintiff. Defendants No. 2 and 3 also pleaded that electricity connection stands in the name of defendant No. 1.

Learned trial court vide impugned order dated 29.1.2009 directed parties to maintain status quo regarding the electricity connection in question during the pendency of the suit. Appeal preferred by defendant No. 1 against the said order has been dismissed by learned Additional District Judge, Mansa vide impugned judgment dated 10.8.2009. Feeling aggrieved, the instant revision petition has been preferred by defendant No. 1

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner vehemently contended that writing dated 2.7.1997 pleaded by the plaintiff-respondent No. 1 has been specifically denied by defendant No. 1 petitioner in his written statement. It was also contended that since the electricity connection stands in the name of defendant No. 1, defendant No. 1 has right to get it transferred to any other place.

On the other hand, learned Counsel for plaintiff-respondent No. 1 contended that in partition proceedings, the suit land fell to the share of Gagandeep and Jagir Kaur and their general attorney Bhupinder Singh with their consent has given the suit land to the plaintiff for use and looking after. It is also contended that in view of writing dated 2.7.1997, defendant No. 1 has no right in the disputed electricity connection and plaintiff has right to use the same.

I have carefully considered the rival contentions.

Defendant No. 1 petitioner does not claim any right in the suit land. On the other hand, in partition proceedings the suit land fell to the share of Gagandeep and Jagir Kaur who have allegedly entrusted the same to the plaintiff. Electricity connection in dispute exists in the said land. In these circumstances, order of status quo regarding said connection has been rightly passed by the courts below. Writing dated 2.7.1997 of course has been denied by defendant No. 1. However, the same can be proved by plaintiff only by leading evidence. The plaintiff would suffer irreparable loss and injury if the electric connection is removed during the pendency of the suit. Grievance of defendant No. 1-petitioner that he may be implicated in case of electricity theft or he may be held liable to pay the consumption charges of the connection can be redressed by issuing suitable directions to plaintiff-respondent No. 1. Plaintiff-respondent No. 1 can be directed to give undertaking that if any case of theft of electricity from the aforesaid connection is detected during pendency of the suit, the plaintiff-respondent No. 1 shall be liable for the same instead of defendant No. 1-petitioner. Plaintiff-respondent No. 1 has also to be directed to give security to ensure payment of consumption charges of the electricity for the aforesaid connection by plaintiff-respondent No. 1.

In view of the aforesaid, the instant revision petition is disposed of by directing respondent No. 1- plaintiff to furnish undertaking by way of affidavit in the trial court within four weeks from today that if any case of electricity theft is detected during pendency of the suit pertaining to electricity connection in question, responsibility shall be of plaintiff and not of defendant No. 1. In addition thereto, plaintiff-respondent No. 1 shall also furnish security to the satisfaction of the trial court undertaking to pay consumption charges of electricity for the electricity connection in dispute during the pendency of the suit. Security shall also be furnished within four weeks from today. Subject to compliance with the aforesaid conditions, status quo order granted by courts below is confirmed. However, if the plaintiff fails to give aforesaid undertaking or security within the stipulated period, the status quo order shall stand vacated automatically and application for temporary injunction moved by plaintiff-respondent No. 1 shall stand dismissed. It is, however, made clear that nothing observed hereinbefore shall be construed as an expression of opinion on merits of the suit.