1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Letters Patent Appeal No. 189 of 2009 IN Writ Petition No. 3937 of 2008 And Civil Application Nos. 7536/08 & 172/09 [Virendra T. Puglia Vs. Prashant S. Kataria & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. S.G. Jagtap with Mr. S.S. Godbole, Advs., for appellants. Mr. J.T. Gilda, Adv., for Respondent Nos. 1 and 2. Mr. A.M. Quazi, Adv., for respondent no.3. ----- CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATE : 23rd July, 2009. 1. Heard. 2. Having taken advantage of the judgment delivered by learned Single Judge for quite some time and also having procured electric connection on its basis, the appellant-plaintiff wanted to withdraw suit filed by him for mandatory injunction for a direction to landlord to restore electric supply. The matter came up before learned Single Judge in Writ Petition No. 3937 of 2008, because in that suit, temporary 2 injunction to supply electricity was granted, and it was maintained in Lower Appellate Court. 3. In the High Court, in Writ Petition filed by the landlord, though said direction was maintained, the occupant was directed to pay occupation charges which were quantified at Rs. 10,000-00 per month. After said quantification and order of High Court, occupant moved application before Trial Court seeking leave to withdraw the Civil Suit, and that application was then brought before this Court by moving Civil Application in a disposed of Writ Petition. The learned Single Judge found that in these circumstances, suit could not have been withdrawn in a fashion as was being done, and observed that it could have been done only in the mode and manner prescribed by law. Appellant has tried to urge before us that there is a contradiction between these two observations of learned Single Judge. We do not find any such contradiction. 4. Thereafter, as the occupant had secured electric connection, but was not paying the occupation charges regularly, and was in arrears of a huge amount, another application was moved by landlord in a disposed of writ petition, pointing out that the conditions imposed by learned Single Judge were not being fulfilled and hence looking to the conduct of the occupant, the judgment delivered needed to be 3 recalled. By the impugned order, the learned Single Judge has granted only Prayer (2) in that Civil Application, i.e., direct respondent no.2  State Electricity Board to disconnect electric supply. Prayer (1) in that Civil Application was to recall the Judgment dated 17th September, 2008, but that has not been granted. 5. The appellant argues that having delivered the Judgment, the Court had become functus officio and hence such an order could not have been passed. The learned counsel for appellant is seeking leave to rely upon the reported judgment in case of Dy. Director, Land Acquisition Vs. Malla Atchinaidu & ors. [(2006) 12 SCC 87], to substantiate his contention. There, it appears that in Reference Proceedings under Section 18, the Subordinate Judge had found that there were 1,000 big and 500 small trees and application was filed by claimants- respondents before that Judge, contending that there were actually 10,000 big and 4,500 small trees, and he wanted the decree to be corrected accordingly. The correction was sought on the ground that there was a variance between Judgment and decree. The Subordinate Judge held that it was not a case of mere correction under Section 152 of Civil Procedure Code, but one for appeal and adjudication. The Revision and appeal were then preferred by respondents before High Court and there was no grievance as to number of trees. The learned Single Judge of the High 4 Court allowed the Revision and directed the order of Sub - Judge to be amended. Appeals were then preferred by appellant-State Govt., and Respondents-claimants against that order and the Division Bench dismissed the appeal of appellant-Govt., and allowed the appeal of respondents and enhanced the compensation. 6. In this background, Hon ble Apex Court has observed that when appeals were pending, learned Single Judge could not have entertained a Revision under Section 115 of Civil Procedure Code, and it was also found that case of variance was not apparent and, therefore, the provisions of Section 152, Civil Procedure Code, were not applicable. The Placitum B on which the learned counsel for appellant is placing reliance only states that Section 152 of Civil Procedure Code was not relevant in this background, as it was not a case of correction of clerical error. It is also observed that having passed the orders, the Court, which had passed it, had become functus officio. 7. Here the order passed was in favour of appellant before us. He took benefit out of it and having secured electric connection, he wanted the suit to be withdrawn. Thus, the final adjudication of the suit itself was being defeated, thereby prejudicing the rights of 5 respondents in that suit. The learned Single Judge, therefore, found that such withdrawal was not legal. On second occasion, when it was pointed out that the order was not being complied with and conditions were not being fulfilled, the direction to restore electric connection was itself withdrawn. It is to be noted that the direction to restore electric connection was maintained in exercise of writ jurisdiction with certain conditions and appellant/occupant was not honouring those conditions, but had attempted to defeat the same. 8. Even conditions of deposit of Rs. 50,000/- imposed by this Court on 8th May, 2009 in Letters Patent Appeal while issuing notice is not fulfilled and only amount of Rs.25,000/- has been deposited. Electricity Board is, thus, free to disconnect supply as per said order dated 8th May, 2009. 9. In these circumstances, we do not find that any case warranting interference in Letters Patent Appeal is being made out at the instance of the appellant. Appeal is dismissed. No costs. Amount of Rs.25,000-00 [rupees twenty- five thousand only] in deposit here be transferred to 9th Joint Civil Judge [Junior 6 Division], Nagpur, in Regular Civil Suit No. 846 of 2008. Judge Judge |Hedau| 7