: 1 : 6713-11-wp-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6713 OF 2011 Poona Urban Properties Pvt. Ltd. .. Petitioners v/s. The Maharashtra State Electricity Distribution Co. Ltd. .. Respondents ......... Ms. Meena H. Doshi for the petitioners Mr. Subir Kumar a/w Ms. Raksha Gala i/b DSK Legal for respondents ......... CORAM : R.Y.GANOO, J DATE : 23rd SEPTEMBER,2011. ORAL JUDGMENT : 1. Rule. Rule is made returnable forthwith. Learned advocate Mr. Subir Kumar appearing on behalf of the respondents waives service. By consent, petition is taken up for hearing. 2. The few facts necessary for the disposal of this petition are as under. : 2 : 6713-11-wp-Judgment=.sxw 3. The petitioners got electricity supply from the respondents to attend to their industrial activity. The respondents raised the Bill dated 8th March, 2011 in the sum of Rs.41,70,080/- and the petitioners were required to pay the bill on or before 11th April, 2011. The petitioners in order to challenge the said bill (hereinafter referred to as the said bill) instituted a suit in the Court of learned Civil Judge, Senior Division, Pune on 6th April, 2011 being R.C. Suit No.693 of 2011. In the said suit, the petitioners had filed an application for interim injunction restraining the respondents from disconnecting the electricity connection below Exh.5. That application was filed on 6th April, 2011. The record shows that the respondents were duly served with the said application and on 7th April, 2011, respondents appeared before the Court and sought time to file affidavit in reply and contest the said application. It is noticed that while the suit regarding the said bill was pending before the Court, the respondents by relying upon the text of the bill and the provisions of law, disconnected the electricity supply enjoyed by the petitioners on 11th April, 2011. After this fact was noted by the petitioners, the petitioners approached the Court and in the Court they were made to concede that on account of disconnection, Exh.5 application does not survive and it is common ground that the said application now stands disposed of. The petitioners thereafter filed an : 3 : 6713-11-wp-Judgment=.sxw application below Exh.17 praying that the electricity connection be restored. That application came to be rejected by order dated 30th April, 2011 passed by learned 5th Joint Civil Judge, Senior Division, Pune (hereinafter referred to as the learned trial Judge). The petitioners have filed this petition so as to challenge order dated 30th April, 2011. The petitioners on account of disconnection of the electricity supply on 11th April, 2011 wanted to amend the plaint so as to seek declaration that the act of disconnection of the electricity supply was illegal and other related aspects. That application for amendment was rejected by the learned trial Judge by passing order below Exh.22 dated 28th April, 2011. This order is also challenged in this petition. 4. I have heard learned Counsel on both sides. Learned advocate for the respondents submitted that looking to the provisions of the Indian Electricity Act, the institution of the suit by the petitioners itself was not maintainable and the respondents were justified in disconnecting the electricity supply on 11th April, 2011 as the deadline for payment of bill of Rs.41,70,080/- had come to an end. In support of this submission, I have enquired with learned advocate for the respondents as to whether they were aware of the institution of the suit and pending Exh.5 application. : 4 : 6713-11-wp-Judgment=.sxw Learned advocate for the respondent had no other alternative but to state that the respondents were aware of the pendency of the suit as well as pendency of Exh.5 application. 5. Looking to the facts and circumstances of the case, I am inclined to observe that even if for a moment one accepts the stand of the respondents that institution of a suit so as to challenge the said bill was not the proper remedy, in my view, it was not proper on the part of the respondents to disconnect the electricity supply when the matter was pending in the Court. If it was the stand of the respondents that the proper remedy was not institution of a suit but the one provided under the Indian Electricity Act, it would have been proper for the respondents to obtain permission from the Court to disconnect the electricity supply during the pendency of the application at Exh.5. In my view, the respondents erred in disconnecting the electricity supply. They ought to have secured permission from the Court or at least inform the Court while the Exh.5 application is pending that they want to disconnect the supply. In my view, in such a case, it is just necessary that the petitioners should be directed to pay to the respondents directly a sum of Rs.10 lakhs to show their bonafide for the purposes of challenging said bill. In my view, once the : 5 : 6713-11-wp-Judgment=.sxw petitioners pay to the respondents a sum of Rs. 10 lakhs, of course, without prejudice to rights and contentions of both the parties, the petitioners would be able to have the electricity supply restored, pending further development in the suit. 6. It is noticed that Exh.5 application which was filed along with the suit has become infructuous on account of disconnection of the electricity supply. Now that respondents are directed to reconnect the electricity supply, the petitioners can file a fresh application after the electricity supply is connected so as to seek an order of injunction restraining the respondents from disconnecting the same till disposal of the suit. The said application will be heard by learned trial Judge in accordance with the provisions of law. Needless to mention that all parties are free to raise all contentions which may be available to them in accordance with the provisions of law. 7. On account of the aforesaid discussion, the application filed by the petitioners below Exh.17 for reconnection and the result thereof need not be gone into because this Court is now directing the respondents to supply the electricity connection on payment of Rs.10 lakhs as mentioned : 6 : 6713-11-wp-Judgment=.sxw aforesaid. Hence, challenge to order dated 30th April, 2011 has now become infructuous particularly as the petitioners are permitted to file a fresh application for interim reliefs. Needless to mention that whatever is stated aforesaid relates only to suit bill dated 8th March, 2011. After the reconnection, the respondents will be free to issue bills for the electricity consumed by the petitioners after the electricity supply is restored pursuant to this order. 8. The petitioners wanted to place on record the act of the respondents as regards disconnection of electricity supply and wanted to amend the plaint in terms of application at Exh.22. That application has been rejected by the learned Judge by order dated 28th April, 2011. I have heard learned advocates on both sides. So far as this order is concerned, I am not inclined to accept the reasons, which are mentioned in the application for rejection of the said application. The petitioners wanted to contend before the Court by way of amendment of the plaint that the respondents were wrong in disconnecting the electricity supply and they would like to have appropriate prayers. In my view, in a situation like this, there is no question of resjudicata because in the past, there was no instance of disconnection of the electricity supply to the present : 7 : 6713-11-wp-Judgment=.sxw petitioners. To that extent, I am inclined to set aside the said order dated 28th April, 2011 and grant application at Exh.22 so that the petitioners can have the plaint amended. Of course, the respondents will get an opportunity to file written statement at an appropriate time. 9. For the reasons mentioned aforesaid, the petition is disposed of by passing following order. ORDER (i) The petitioners are directed to pay to respondents directly a sum of Rs.10 lakhs towards the bill dated 8th March, 2011, which is subject matter of Special Civil Suit No.693 of 2011 pending on the file of 4th Joint Civil Judge, Senior Division, Pune on or before 27th September, 2011. (ii) Upon receipt of the said sum of Rs.10 lakhs, the respondents shall reconnect the electricity supply to the petitioners on or before 30th September, 2011. It is hereby clarified that payment of sum of Rs.10 lakhs is without prejudice to the rights and contentions of both sides : 8 : 6713-11-wp-Judgment=.sxw and the challenge to the said bill shall be considered by the learned trial Judge in accordance with the provisions of law. (iii) The respondents are free to issue bills for the electricity consumed by the petitioners after the electricity supply is reconnected to the petitioners. (iv) After the electricity supply is reconnected to the petitioners, the petitioners shall be free to file an application in the Court of 4th Joint Civil Judge, Senior Division, Pune so as to pray that pending the suit, the electricity supply should not be disconnected. Needless to mention that said application will be decided by the learned 4th Joint Civil Judge, Senior Division, Pune in accordance with the provisions of law and on merits. It is made clear that this Court has not expressed any view on the merits of the challenge to the aforesaid bill. Parties are free to advance their submission before the Court. All the questions in that behalf are left open. (v) Order dated 28th April, 2011 passed below Exh.22 is set aside. Application below Exh.22 is hereby granted. The petitioners shall : 9 : 6713-11-wp-Judgment=.sxw carry out amendment on or before 5th October, 2011 and serve a copy of the amended plaint upon respondents within a week from carrying out amendment. Respondents would be able to file written statement to the plaint which shall stand amended in accordance with the provisions of law. The parties shall not wait for a copy of this order as the order is passed in the presence of advocates appearing in the matter. Learned advocate Mr. Subir Kumar shall instruct his clients about the text of the order and instruct them to reconnect the supply on receipt of Rs.10 lakhs as per this order. (vi) There shall be no order as to costs. (R.Y.GANOO, J.)