IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.08.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.476 of 1997 1.The Tamil Nadu Electricity Board, rep. By its Chairman, Madras. 2.The Executive Engineer, Manamadurai, Pasumpon Muthuramalinga Thevar District. 3.The Assistant Engineer, Ilayangudi, Pasumpon Muthuramalinga Thevar District. ...Appellants/Defendants V. 1.Amir Nisha Beevi 2.Jalal ...Respondents/Plaintiff 2nd respondent/4th Defendant Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree dated 29.03.1996 made in A.S.No.14 of 1996 on the file of the V Additional Judge, City Civil Court, Chennai confirming the Judgment and Decree dated 31.08.1995 in O.S.No.3420 of 1991 on the file of VIII Assistant Judge, City Civil Court, Madras. For Appellants : Mr.N.Muthuswami (TNEB) For Respondents : Mr.N.Muralikumaran for R1 No Appearance for R2 J U D G M E N T The Appellants/Defendants have preferred this Second Appeal as against the Judgment and Decree dated 29.03.1996 in A.S.No.14 of 1996 on the file of the Learned V Additional Judge, City Civil Court, Chennai. 2. The First Appellate Court viz., the Learned V Additional Judge, City Civil Court, Chennai in the Judgment in A.S.No.14 of 1996 on 29.03.1996 has among other things observed that '...It is just fair to direct the Defendants to remove the Transformer and three https://hcservices.ecourts.gov.in/hcservices/ poles from the land of the Plaintiff and that the trial Court has granted the relief of mandatory injunction after bearing in mind of the facts and as such, no case has been made out to interfere with the Judgment of the trial Court and resultantly, dismissed the Appeal without costs' thereby confirming the Judgment and Decree of the trial Court. 3. Before the trial Court, two issues have been framed for consideration. On the side of the First Respondent/Plaintiff, witness PW1 has been examined and Exs.A1 to A5 have been marked. On the side of the Appellants/Defendants, DW1 has been examined and no exhibits have been marked. 4. The trial Court on an appreciation of oral and documentary evidence available on record has come to the consequent conclusion that 'the First Respondent/Plaintiff has established the averments made in the plaint and if the Transformer and other instruments installed in the First Respondent/Plaintiff's land are not removed and left as it is then, the First Respondent/Plaintiff will suffer hardship and therefore, she is entitled to get the relief of mandatory injunction and accordingly, decreed the suit without costs.' 5.At the time of admission of the Second Appeal, the following substantial questions of law have been framed by this Court: (i)Whether the trial Court has not committed error by not framing any issue as to the maintainability of the suit for want of jurisdiction especially when the suit was questioned by the Defendants? (ii)Whether the suit is not maintainable in City Civil Court, Madras, when admittedly the cause of action arose within the jurisdiction of the District Munsif, Paramakudi?" CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW Nos.1 and 2: 6. According to the Learned counsel for the Appellants, no particular issue has been framed before the trial Court in regard to the maintainability of the suit for want of jurisdiction, when the same has been raised in the Written Statement filed by the Appellants and this has not been taken note of by both the Courts below and as a matter of fact, the suit should have been filed only at Paramakudi and not at Madras. 7. Advancing his arguments, the Learned counsel for the Appellants submits that as per Section 42 of the Electricity (Supply) Act, 1948, the Appellants are empowered to install the Transformer or to lay the cables without the consent of the Landlord and indeed, the https://hcservices.ecourts.gov.in/hcservices/ First Respondent/Plaintiff has not objected to the installation of the Transformer by the Appellant's Department during April 1991. 8.In short, the contention of the Learned counsel for the Appellants is that the trial Court as well as the First Appellate Court have not taken into account the factual and relevant Section 42 of the Electricity (Supply) Act 1948 and this has resulted in miscarriage of justice and therefore, prays for allowing the Second Appeal in furtherance of substantial cause of justice. 9.Per contra, the Learned counsel for the First Respondent/Plaintiff submits that ' the Appellants are not the aggrieved persons and if at all a person is aggrieved, then it must be only the Fourth Defendant and as a matter of fact, the First Appeal A.S.No.14 of 1996 has been filed by the present Appellants and the First Respondent/Plaintiff even though resides in Chennai has filed the present suit O.S.No.3420 of 1991 on the file of the City Civil Court, Madras by arraying Appellants 1 to 3 as Defendants and the Second Respondent in the Second Appeal is arrayed as the Fourth Defendant in the suit and the First Respondent/Plaintiff has sought a relief of mandatory injunction directing the Appellants 1 to 3/Defendants and the Second Respondent/Fourth Defendant at their costs to remove three poles and the Transformer along with the overhead line put by on her land in Survey No.227/3 in Kannamangalam Village, Ilayangudi Taluk, Pasumpon Muthuramalingam Devar District for the purpose of Electricity Service connection to the Second Respondent/Fourth Defendant, etc., and both the Courts below on an appreciation of oral and documentary evidence available on record rendered a finding that the First Respondent/Plaintiff is entitled to claim the relief of mandatory injunction and as such, the same need not to be interfered with by this Court at this stage of the Second Appeal. 10.Expatiating his arguments, the Learned counsel for the First Respondent/Plaintiff contends that the suit filed by the First Respondent/Plaintiff before the trial Court even though it is for the relief of mandatory injunction directing the Defendants 1 to 4 at their costs to remove the three poles and the Transformer, etc., yet the same is maintainable before the trial Court even though the property is situated outside the Chennai and in support of the contention, he relies on the Judgment of this Court dated 14.04.2007 in O.S.A.No.52 of 2007 and M.Ps.1 to 3 of 2007 between A.C.SUBBA REDDY AND M/S.JAWAHAR INTERNATIONAL TRANDING CORPORATION COMPANY, REP. BY ITS MANAGING PARTNER AND 6 OTHERS, wherein it is inter alia held as follows: "4.If we look at the prayer "a" and "c" alone, it is clear that principally the suit is for specific performance of the agreement and even the ancillary relief of permanent injunction is also for https://hcservices.ecourts.gov.in/hcservices/ restraining defendants from alienating or dealing with the suit property in any way Prayers "a" and "c" are not for title or possession and the injunction relief sought for also does not affect the title or possession. 5.The Learned Single Judge has, however, held that the prayer for 'b' permanent injunction would amount to control of the suit property and therefore the suit must be regarded as a suit for land and since the property is situated outside Chennai, this Court has no jurisdiction to try the suit. 6.The Learned counsel appearing for the Appellant wants to give up the prayer for permanent injunction in terms of Prayer "b". We do not see any reason why such a prayer should not be granted and accordingly Plaintiff is permitted to delete prayer 'b'. Consequently, the order of the learned single Judge is set aside. 7.Learned counsel appearing for the respondents states that the property has already been transferred on 30.06.2006 to one S.B.Geetha by a registered sale deed. In view of the transfer, the prayer for continuance of interim relief of injunction cannot be granted and the same is rejected. 8. OSA stands disposed of. No costs. Consequently, connected miscellaneous petitions are closed." 11. The Learned counsel for the First Respondent/Plaintiff also submits that the First Appellant/First Defendant's Head Office is at Madras and also, the First Respondent/Plaintiff resides at Madras and therefore, the suit filed by the First Respondent/Plaintiff before the City Civil Court, Chennai is maintainable in law. 12. The Learned counsel for the First Respondent/Plaintiff also submits that the suit filed by the First Respondent/Plaintiff is not a suit on land and as such, the suit filed by the First Respondent/Plaintiff is maintainable before the trial Court. 13. Countering the submission of the Learned counsel for the First Respondent/Plaintiff, the Learned counsel for the Appellants/Defendants 1 to 3 submits that the Electricity Board's Transformer is in the Highways Poramboke and not in the suit property. 14. In the plaint filed by the First Respondent/Plaintiff, then Schedule of the property is mentioned as below: https://hcservices.ecourts.gov.in/hcservices/ "All that piece and parcel of land in Survey No.227/3, in patta No.16, measuring about 1 Acre 11 cents in Kannamangalam Village, Ilayangudi Taluk, P.M.R. District, within the sub-registration District of Ilayangudi, P.M. District, bounded on the: North by Kannamangalam Road, South by land in Survey No.226/15 East by land in Survey No.226/4 West by Fourth Defendant's land in S.No.226/2.A." 15. According to the Learned counsel for the Appellants/Defendants 1 to 3, the Second Appellant/Second Defendant's Office at Manamadurai in its Memo No.EE/D/MNM/C1/Pro.No.006 dated 01.02.1991 has approved the proposal for extension of supply to 1.No.Indl.Se. to the Second Respondent/Fourth Defendant in SF.No.227/2A for a loand of 30.HP +700W in Kannamangalam Village and Distn under AE/D/R/ILY.Section and sanctioned an amount of Rs.49,335/- yielding a revenue return of Rs.2,700/- per annum i.e., 5.04% on the capital outlay. 16. The Learned counsel for the Appellants/Defendants 1 to 3 refers to the ingredients of Section 42 of the Electricity (Supply) Act 1948 which speaks of the Powers to the Board for placing Wires, Poles, etc., and the same is as follows: 'Notwithstanding anything contained in Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but without prejudice to the requirements of Section 17 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of 1885) with regard to a telegraph established or maintained by the Government or to be so established or maintained: Provided that where a sanctioned scheme does not make such provision as aforesaid, all the provisions of Sections 12 to 19 of the first-mentioned Act shall apply to the works of the Board. [(2) A generating company may, for the placing of wires, poles, wall-brackets, stays apparatus and appliances for the transmission of electricity, or for the transmission of telegraphic or telephonic https://hcservices.ecourts.gov.in/hcservices/ communications necessary for the proper co-ordination of the works of the generating company, exercise all or any of the powers which the Board may exercise under sub-section (1) and subject to the conditions referred to therein.]' 17.At this stage, this Court pertinently points out Section of the Civil Procedure Code which deals with 'suits for immovable property situate within the jurisdiction of different Courts' and the same runs thus: "Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court." 18. The Third Appellant/Third Defendant in his Written Statement has taken a plea before the trial Court that the property of the First Respondent/Plaintiff is situated within the jurisdiction of the District Munsif, Parmakudi and the work has been carried out by him, whose office is at Ilayangudi which is within the jurisdiction of the District Munsif Court, Paramakudi and therefore, the trial Court viz., the City Civil Court has no jurisdiction to entertain the suit and in short, the suit is not maintainable either on the facts or on the question of law. 19. Significantly, in the Written Statement filed by the Third Appellant/Third Defendant, a plea is taken that the Electricity Board is vested with the powers of the Indian Telegraphic Authority under the Electricity (Supply) Act, 1948 and under the provision of the Act, consent of the owner of the land or premises is not necessary and the work has been carried out for the benefit of the general public and not for the benefit of the Second Respondent/Fourth Defendant alone. 20. In the instant case on hand, even though the Third Appellant/Third Defendant has raised the issue of trial Court's jurisdiction to try the suit and also taken a plea that the jurisdiction of the concerned Court is District Munsif Court at Paramakudi, the trial Court viz., the VIII Assistant Judge, the City Civil Court, Chennai has not framed an issue for determination in the trial of the case. But, the First Appellate Court has raised the jurisdiction of the trial Court to try the case and has opined that the trial Court's conclusion that the suit need not to be filed at https://hcservices.ecourts.gov.in/hcservices/ the District Munsif Court, Parmakudi District and that the suit could be filed in the trial Court itself and the said conclusion is a correct one. 21. A perusal of the trial Court's Judgment in paragraph No.9 shows that it has not accepted the plea that the suit filed by the First Respondent/Plaintiff is not maintainable before it. 22. PW1 (First Respondent/Plaintiff's husband) in his evidence has deposed that the suit property belongs to his wife (the Plaintiff) who has purchased the same as per EX.A1 Sale Deed dated 13.05.1965 and that the suit land is an agricultural one and that the Second Respondent/Fourth Defendant is the person who has a land on the Northern side of the suit land, measuring an extent of 2 acres and 50 cents and that at the time of filing of the suit, the Second Respondent/Fourth Defendant has completed the construction of Rice Mill in his place and around his Rice Mill, there is a vacant space and on the Eastern side of their land, a High Extension Electricity Connection is passing through in order to give electricity connection to the Rice Mill of the Second Respondent/Fourth Defendant, the Appellants/Defendants have erected poles and four poles and has installed the Transformer and while conducting the business of Lungi selling at Chennai, they have not known about the erection of poles in their land and to erect the poles and install the Transformer, there is a space at the Second Respondent/Fourth Defendant's land and in order to give the electricity connection to the Second Respondent/Fourth Defendant's land, the Appellants/Defendants have encroached upon the First Respondent/Plaintiff's land. 23. DW1 (the Assistant Executive Engineer of the Electricity Board) in his evidence has deposed that he is serving as Assistant Executive Engineer in the Third Appellant/Third Defendant's Office at P.M.R. District and in the suit property on 03.03.1991, the work has commenced and during April 1991, the Transformer has been installed and at that time, no objection has been received and he has inspected the suit property and before the installation of the Transformer, the wire of the Postal Telegraphic Department has been passing through and the Transformer has been installed on the Northern side of the First Respondent/Plaintiff's land and the Technical Committee has come and inspected and selected the First Respondent/Plaintiff's land and in that land, the Transformer has been installed at a cost of Rs.1 Lakh and if the Transformer is to be shifted then a sum of Rs.1 Lakh has to be incurred in that regard. 24. DW1 in his cross-examination has stated that for the purpose of the Second Respondent/Fourth Defendant's Rice Mill, the Electricity facility has been given and the First Respondent/Plaintiff's land Survey No.227/3, measuring an extent of one acre and 11 cents and the Second Respondent/Fourth Defendant's land Survey No. Is 227/3A, measuring an extent of 2.5 acres and https://hcservices.ecourts.gov.in/hcservices/ further that for installation of the Transformer, no Government permission is required. 25. It is to be pointed that in the decision SUPERINTENDING ENGINEER V. THANGAPRAKASAM, AIR 1999 MADRAS 365, this Court has held as follows: " The provisions of Electricity Supply Act read with Sections 10 and 16 of the Telegraph Act recognises the absolute power of the Electricity Board to proceed with the work of constructing concrete bases for installing high posts to draw high tension wires for supply of electricity over the field of an individual, subject to his right to claim damages, if proved. So long as the work is done by the Board in accordance with the sanctioned Scheme and in accordance with the provisions contained in the Act it may not be within the framework of law to restrain them from doing so. By granting an order of injunction, the Board cannot be prevented from doing an act which is recognised by a Statute. The action of the Board in the case on hand is in the larger interest of the public to have an undisturbed power supply. Therefore, an order granting injunction in favour of plaintiff would apa4rt from being against statutory powers of Board affect interest of public at large.' 26. It cannot be lost sight of that by means of Section 42 of the Electricity (Supply) Act 1948, the Electricity Board for the limited purpose, for erecting a transmission line is not obliged to acquire any land belonging to any person notwithstanding the provisions of Sections 12, 16, 18 and 19 of the Electricity Act as per the decision H.BAHADUR SINGH V. DIVISIONAL ENGINEER, ANDHRA PRADESH SEB, 1991 (2) ANDH LT 7(9). 27. This Court aptly points out the decision OM PRAKASH AND ANOTHER V. ANAR SINGH AND OTHERS, AIR 1973 ALLAHABAD 55 (V 60 C 194), wherein it is laid down as follows: 'A suit for injunction in respect of an immovable property can be no exception for the applicability of Section 16 (d) and has to be instituted in the Court in whose territorial jurisdiction the property lies. The determination of the right or interest in the immovable property cannot be considered as merely an incidental matter but is an essential matter for the grant of relief of injunction.' https://hcservices.ecourts.gov.in/hcservices/ 28. In SANDEEP JAIN V. SURESH CHANDRA JAIN AND OTHERS, 2001 AIHC 2009, it is held that 'the objection as to the absence of jurisdiction would not be fatal, unless such objection is taken before settlement of issues and the same cannot be allowed to be raised at the appellate or revisional stage'. 29. In the decision SUGUNA POULTRY FARM LIMITED AND OTHERS V. ARUL MARIAMMAN TEXTILES LIMITED AND OTHERS, 2004-4-L.W.571, it is inter alia held by this court that 'the Subordinate Judge had without jurisdiction taken the case on file, issued notice for the injunction application to the uninterested persons and on their failure to contest the case, I.A. was allowed and it should be construed as 'an abuse process of Court.' 30. As far as the present case is concerned, the First Respondent/Plaintiff has filed the suit O.S.No.3420 of 1991 on the file of the Learned VIII Assistant Judge, City Civil Court, Chennai praying for the relief of mandatory injunction directing the Appellants 1 to 3/Defendants and the Second Respondent/Fourth Defendant to remove the three poles and Transformer along with overhead line put up on the Plaintiff's suit land in S.No.227/3 in Kannamangalam Village, Ilayangudi Taluk, P.M.R. District. In the plaint, in the cause of action paragraph at Paragraph No.10, the First Respondent/Plaintiff has averred that 'the cause of action for the suit has arisen when the Defendants D2 and D3 started putting up structures on the plaintiff's land to give electricity and service connection to the Fourth Defendant; on 08.05.1991, when the Plaintiff sent Registered Notice to the Second Third Defendants; on 13.05.1991, when she sent Registered Notice to the Collector of Pasumpon Muthuramalingam Devar District and subsequently and is within the jurisdiction of this Honourable Court, where the First Defendant is having its office in Madras, under whose service and control the Defendants 2 and 3 are functioning and the First Defendant is the person to be sued and to sue in all the matters. The relief sought for with reference to the schedule property can be obtained through the personal obedience of the Defendant who is having their office at Madras.' 31. On a careful consideration of the respective contentions and because of the fact that the present suit ought to have been instituted within the local limits of whose jurisdiction the property is situated, this Court is of the considered view that Section 16 of the Civil Procedure Code applies to suit for mandatory injunction also in regard to the issuance of directions to the Defendants 1 to 4 at their cost to remove the three poles, Transformer, etc., and in this view of the matter, this Court without going into the merits of the matter comes to an inescapable conclusion that the First Respondent/Plaintiff ought to have filed the present suit before the concerned Court's jurisdiction where the property situated and not before the City Civil Court, Chennai and unfortunately, this material https://hcservices.ecourts.gov.in/hcservices/ aspect of the matter has not been adverted to by the trial Court as well as the First Appellate Court in a proper and legal perspective and therefore, this Court is perforced to interfere with the Judgments and Decree of the trial Court in O.S.No.3420 of 1991 as well as the First Appellate Court in A.S.No.14 of 1996 and accordingly, allows the Second Appeal thereby setting aside the Judgment and Decree of the trial Court dated 31.08.1995 in O.S.No.3420 of 1991 as well as the Judgment and Decree of the First Appellate Court dated 29.03.1996 in A.S.No.14 of 1996. 32. In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the trial Court dated 31.08.1995 in O.S.No.3420 of 1991 as well as the Judgment and Decree of the First Appellate Court dated 29.03.1996 in A.S.No.14 of 1996 are set aside. The Learned VIII Assistant Judge, City Civil Court, Chennai is directed to return the plaint in O.S.No.3420 of 1991 to the First Respondent/Plaintiff within a period of two weeks from the date of receipt of a copy of the Judgment and in turn, the First Respondent/Plaintiff is directed to represent the same before the concerned competent Court in the manner known to law and in accordance with law. The concerned Competent Court is directed to assign a Number to the suit and is directed to dispose of the said suit within a period of six months thereafter. The liberty is also given to the First Respondent/Plaintiff to raise all factual and legal pleas available to her before the competent Forum in the manner known to law. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vri To 1. The Registrar, City Civil Court, Chennai. + 1 cc to Mr.N. Muthuswammi, Advocate Sr.61042 + 1 cc to Mr.N. Muralikumaran, Advocate Sr.61042. S.A.No.476 of 1997 KM(CO) EU 13.11.10 https://hcservices.ecourts.gov.in/hcservices/