SCA/9563/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9563 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PASHCHIM GUJARAT VIJ CO LTD - Petitioner(s) Versus AHMEDALI JAFERALI VAKIL - Respondent(s) ========================================================= Appearance : MS LILU K BHAYA for Petitioner(s) : 1, MR HARSHIT S TOLIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 ORAL JUDGMENT 1. RULE. Mr.Harshit Tolia, learned advocate waives the service of notice of admission on behalf of the respondent. SCA/9563/2008 2/7 JUDGMENT 2. With the consent of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant – Paschim Gujarat Vij Company Limited, has prayed for appropriate writ, order and/or directions, for quashing and setting aside the judgement and order dtd.30/6/2008 passed by the learned Additional District Judge and Presiding Officer, FTC No.1, Bhavnagar in partly allowing Misc.Civil Appeal No.38 of 2008 by modifying the order dtd.11/1/2008 passed by the learned trial court below application Ex.5 in Regular Civil Suit No. 741 of 2007 by directing the respondent to deposit an amount of Rs.2 Lacs instead of Rs.1 Lac as directed by the trial court as a condition for reconnection of the electricity connection. 4. It appears that one Ahemadli Jafarali Vakil was erstwhile owner of the property where electricity connection was sought for and there was an arrears of Rs.5,16,103.83 ps. and for the recovery of the the petitioner has preferred Special Civil Suit No. 107 of 2003. It appears that the part of the property has been purchased by the respondent – original plaintiff and he applied for SCA/9563/2008 3/7 JUDGMENT electricity connection / reconnection by the petitioner on the ground that there is arrears of Rs.5,16,103.83 ps. and unless the said amount is paid, there shall not be a connection. The respondent – original plaintiff filed Regular Civil Suit No. 741 of 2007 in the court of learned Principal Senior Civil Judge, Bhavnagar for declaration and permanent injunction against the petitioner herein. In the said suit, the plaintiff submitted application Ex.5 for interim injunction against the petitioner and the learned trial court vide order dtd.11/1/2008 has allowed the said application Ex.5 directing the petitioner herein to give electricity connection for industrial purpose to the plaintiff on furnishing security of Rs.1 Lac and on payment of Rs.25,000 by way of deposit. Being aggrieved by and dissatisfied with the order dtd.11/1/2008 passed by the learned Additional Senior Civil Judge below application Ex.5, the petitioner preferred Misc.Civil Appeal No.38 of 2008 before the appellate court which came to be heard by the learned Additional District Judge and Presiding Officer, FTC No.1, Bhavnagar, who vide his judgement and order dtd.30/6/2008 partly allowed the said appeal ordering to install electricity connection after compliance of necessary rules and regulations on condition that the SCA/9563/2008 4/7 JUDGMENT respondent shall deposit Rs.2 Lacs in cash with the petitioner towards the amount likely to be recovered in connection with Special Civil Suit No.107 of 2003 and for remaining amount, collateral security in favour of the petitioner within a period of three weeks. Being aggrieved by and dissatisfied with the same, the petitioner – original appellant/defendant has preferred present Special Civil Application under Article 227 of the Constitution of India. 5. Ms.Lilu Bhaya, learned advocate appearing on behalf of the petitioner has submitted that unless the entire amount of arrears of the erstwhile owner is paid by the respondent, no electricity connection can be installed. It is submitted that the learned appellate court has materially erred in directing the petitioner to install new electricity connection on condition to deposit Rs.2 Lacs only by the respondent. 6. On the other hand, Mr.Tolia, learned advocate appearing on behalf of the respondent has submitted that as such the dispute with regard to arrears of amount of Rs.5,16,103.83 ps. due and payable by the erstwhile owner, is yet to be adjudicated upon by the trial court in Special Civil Suit No. 107 of 2003. It is submitted that the order passed by both the courts below are discretionary SCA/9563/2008 5/7 JUDGMENT in nature and the same are not required to be interfered with by this Court when the discretion has been exercised judiciously. Mr.Tolia, learned advocate appearing on behalf of the respondent has submitted under the instruction of his client that still the amount of Rs.2 Lacs directed to be deposited by the appellate court can be enhanced to Rs.3 Lacs and rest of the order to furnish security for the balance amount be continued and on deposit of Rs.3 Lacs and on payment of usual electricity connection, suitable directions be issued directing the petitioner to install electricity connection. 7. Heard the learned advocate appearing on behalf of the respective parties. 8. At the outset, it is required to be noted that the respondent – original plaintiff is the subsequent purchaser of the part of the property of the erstwhile owner and he has applied for electricity connection for industrial purpose. It appears that Special Civil Suit No. 107 of 2003 instituted by the petitioner against the erstwhile owner for recovery of Rs.5,16,103.83 ps. is pending and what amount is due and payable by the erstwhile owner to the petitioner is yet to be adjudicated upon in the aforesaid suit. In the meantime, if on SCA/9563/2008 6/7 JUDGMENT payment of some amount, the petitioner is directed to install electricity connection for industrial purpose, it will be in the interest of all the concerned parties. The appellate court has exercised its discretion judiciously, however, it appears that if instead of Rs.2 Lacs, the respondent – plaintiff is directed to deposit Rs.3 Lacs without prejudice to his rights and contentions of the respective parties and subject to ultimate outcome of the Special Civil Suit No. 107 of 2003 and for balance security is directed to be furnished by the respondent, it will meet the ends of justice. 9. For the reasons aforesaid, the petition is partly allowed. The impugned judgement and order dtd.30/6/2008 passed by the learned Additional District Judge and Presiding Officer, FTC No.1, Bhavnagar in partly allowing Misc.Civil Appeal No.38 of 2008 is modified to the extent that on deposit of Rs.3,00,000=00 (Rupees Three Lacs only) in cash by the respondent herein with the petitioner herein and on payment of usual electricity connection charges as per the rules and regulations and on furnishing security for the amount of Rs.2,50,000=00 (Rupees Two Lacs Fifty Thousand only) within a period of four weeks from the date of receipt of this order, the SCA/9563/2008 7/7 JUDGMENT petitioner herein is directed to give electricity connection for industrial purpose to the respondent immediately, after compliance of necessary rules and regulations. The aforesaid deposit would be made by the respondent herein with the petitioner herein subject to the ultimate outcome of the Special Civil Suit No. 107 of 2003. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik