IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Appeal From Order No.24 of 2006 with Civil Appln no. l227 of 2005 Indulal Durlabhdas Shah and anr.. Appellants vs Prabhudas Durlabhdas Shah andors..Respondents Mr P S Dani for appellants Mr. Ashok Varma for respondent no.l Mr Pecy Modi for P M Shah for respondent nos 2 to 6 CORAM; A.M.KHANWILKAR J. CORAM; A.M.KHANWILKAR J. CORAM; A.M.KHANWILKAR J. DATED 2.2.2006 DATED 2.2.2006 DATED 2.2.2006 P.C. P.C. P.C. l. Heard the learned counsel for the parties. Perused the record. Admit. Counsel for the respondents waive service. By consent, appeal is heard forthwith for final disposal. 2. This appeal takes exception to the judgment and order passed by the City Civil Court, Bombay dated l8.8.2005 in notice of motion no.462 of 2004. By this order the trial court has directed parties to bear equal 25% charges of the total electricity bill of electricity meter no.B 0ll638 till the disposal of the suit. The suit has been filed by the respondent no.l for the following reliefs: "a) That it may be declared that the plaintiffs alone is entitled to the supply,use and consumption of electricity from meter no.B0ll638 installed in building "Beach View" situated at 8, Chowpatty Sea Face, Mumbai 400007 and standing in the name of the plaintiffs and the defendant nos l to 7 or any of them have no right to receive supply of electricity from the plaintiffs said meter. b) That by a Mandatory order and injunction of this Hon‘ble court has the defendant nos l to 5 be ordered and directed to disconnect electricity line and supply of electricity from plaintiffs meter no.B0ll638 to portions in their use and occupation in flat no.l of building Beach View situate at 8 Chowpatty Seaface, Mumbai 400007. c) That a permanent order and injunction of this Hon‘ble court be issued restraining defendant nos.l to 5 by themselves, their servants and agents from in any manner either directly or indirectly (i) taking any electrical line or connection from plaintiffs meter no.B 0ll638 for use and consumption of electricity in portions in their occupation in flat no.l of building no.l of building Beach View situate at 8 Chowpatty Seaface, Mumbai 400007 or usurping electricity from the plaintiffs said meter for such use (ii) preventing or interfering with plaintiff or his electrician and agents from disconnecting electric supply from the plaintiffs meter to the portions in the said flat in occupation of defendant nos.l to 5. d) for interim and ad-interim orders in terms of prayers (b) and (c) above. e) for cost of this suit. f) for such further and other reliefs as the nature and circumstances of the case may require". 3. During the pendency of the said suit a notice of motion was taken out by the plaintiffs, in which impugned order has been passed. Indeed, while resisting the said notice of motion the appellants/defendant nos. 6 and 7 have asserted on affidavit that they are in legal possession of a portion of suit premises in their own rights and they have temporarily removed themselves from the suit premises and staying at Kandivli. In the affidavit filed before the trial court the defendant nos. 6 to 7 have categorically denied that they are not using electricity, as was asserted by the plaintiffs. It is on this basis the impugned order has been passed requiring all the parties to bear equal 25% charges namely plaintiffs on the one hand, defendant nos l to 4 on the other and defendant no 6 and defendant no. 7 respectively. 4. Before this court the appellants/ defendant nos 6 and 7 contend contrary to what is stated on affidavit before the trial court.It is the case of the appellants/ defendant nos. 6 and 7 that in fact they are not using any electricity from the electricity meter no. B 0ll638 for the simple reason that they have physcically removed themselves from the suit premises and presently staying at Kandivli, though they are in legal possession of the suit premises. On that assertion it is argued that the requirement imposed by the trial court of sharing 25% charges of total electricity bill is inequable. 5. The entire controversy, contends counsel for the parties, as has been brought before the trial court can be addressed by accepting the arguments canvassed by the defendant nos. 6 and 7 before this court and on the assurance given by them through their counsel that in future if they intend to use electricity to be derived from electricity meter no.B 0ll638 that shall be done after seeking appropriate directions from the court by taking out substantive proceedings in that behalf. In other words the appellants agree before this court that they will utilise electricity to be derived from electricity meter no B 0ll638 only after seeking appropriate orders from the court of competent jurisdiction in that behalf. It is however, made clear that this arrangement will not preclude the appellants to apply for separate electricity meter for the suit premsies in relation to the portion in their legal possession, if permissible by law, so that it will not be necessary for them to approach the court of law for necessary directions. 6. It is on this understanding reached between the parties the obligation imposed by the trial court in the impugned order cannot be enforced as against the appellants- defendant nos. 6 and 7. The learned counsel for the defendant nos.l to 5 agree before this court that they will equally share 50% of the total electricity bill in respect of the electricity meter B 0ll638 as they are using the electricity jointly alongwith the plaintiffs. The assurances given by the respective parties through their counsel is accepted. 7. In view of the above agreement between the parties, not only the present appeal can be and being disposed of - but nothing would survive for consideration even in the pending suit. This position is fairly accepted by all the parties before this court. The plaintiffs through their advocate assure to approach the trial court to move an application for withdrawal of the suit in view of the arrangement arrived at between the parties and as recorded in this order. That be done within three weeks from today. If the plaintiffs fail to do so it will be open for any of the defendants to approach the trial court to point out the assurance given by the plaintiffs before this court and as recorded in this order, on the basis of which the trial court will pass appropriate orders in the pending suit. 8. The plaintiffs as well as defendant nos.l to 5 have further agreed before this court that they will take steps to open a joint account in a mutually agreed bank by contributing a sum of Rs.l0,000 each, so that minimum balance of Rs.20,000 is maintained in that account to meet with any electricity bill to be raised on account of electricity meter no. B 0ll638 or replacement of that meter. The account will be operated jointly. It is further agreed between the plaintiffs and defendants nos.l to 5 that as soon as the electricity bill is received, both parties will contribute equal amount of 50% of the total electricity bill and deposit such amount in the joint account within one week from the receipt of the bill or being informed about the receipt of such bill.Even if there is any default in depositing 50% by any party, both parties agree that they shall first pay the electricity bill, which has been received, from the joint account and the amount so paid will be replenished in the said joint account soon thereafter so as to continuously maintain balance of around Rs.20,000 in that account. The assurances given by the plaintiffs and defendant nos.l to 5 in the above terms is accepted. . Appeal as well as the civil application is disposed of accordingly.