Regular Second Appeal No.936 of 2003. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.936 of 2003. Date of decision:13-5-2008 Harbhajan Singh. ...Appellant. Versus Harbans Singh and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. P.S. Goraya Advocate for the appellant. Mr. J. S. Verka Advocate for respondent No.1. Mr.G.S.Sandhawalia Advocate for respondent Nos.2 to 4. ... K. C. Puri, J. Judgment. Shri Bhupinder Singh, the then Additional District Judge, Gurdaspur, vide his impugned judgment and decree dated 9.9.2002, dismissed the appeal filed by the appellant against the judgment and decree passed by Shri Harjinder Pal Singh, the then Additional Civil Judge (Senior Division), Batala whereby he decreed the suit of the plaintiff with costs. Regular Second Appeal No.936 of 2003. -2- The plaintiff filed a suit for a declaration to the effect that he was the actual consumer and owner of tubewell connection No.AP2- 1336, installed in village Khojala, Tehsil Batala and the transfer of the said connection from his name to the name of defendant No.1 and the allotment of new connection No.AP2-1694 in the name of defendant No.1 in lieu of tubewell connection No.AP2-1336 made by defendant Nos.2 to 4 was illegal, ultra vires, null and void, inoperative, ineffective, unauthorised, result of collusion, conspiracy of the defendants and the same has no binding force on his rights with consequential relief of permanent injunction restraining the defendants from interfering in his possession in the tubewell connection or dealing with the said tubewell connection illegally, forcibly and without due course of law on the averments that after installation of the tubewell connection No.AP2-1336, he had been regularly paying the consumption charges untill these were exempted by defendant Nos.2 to 4. The defendant No.1 without any right, title or interest in the tubewell connection in dispute, had tried to interfere in the same on 1.6.1997, but his attempt was foiled. The defendant No.1 had informed him that he had got the electric connection in dispute transferred in his name. This transfer of connection has been impugned in the said suit. The defendant No.1 contested the claim of the plaintiff by filing written statement. Preliminary objections of non-maintainability and suppression of material facts were taken. It was also pleaded that Regular Second Appeal No.936 of 2003. -3- the plaintiff had no locus-stand to file the suit. On merits, it was asserted that the plaintiff had applied for installation of tubewell connection in Khasra No.28R/19/2, but when the demand notice was issued, the plaintiff was not in a position to fulfil the terms and conditions of the demand notice. He was not in a position to get the tubewell connection installed. The plaintiff had approached defendant No.1 for getting the tubewell connection from him and on payment of reasonable consideration, the defendant No.1 got the tubewell connection installed in Khasra No.28/21, which was in his possession. Since, the defendant No.1 is making the payment of consumption charges to defendant Nos.2 to 4. It has been further pleaded that in order to give legal colour to this transaction, the plaintiff had given an affidavit to him, duly attested, by the Executive Magistrate and witnessed by the counsel for the plaintiff. On the strength of the affidavit, transfer was effected. The defendant No.1 is, thus, in possession of electric connection. Defendant Nos.2 to 4 also pleaded in the written statement that defendant No.1 is actual consumer and is holder of connection in dispute. Plaintiff has got no legal right or interest in the connection. The defendant No.1 moved an application to them for transfer of electric connection in dispute. At the time of moving application, the defendant No.1 also submitted an affidavit dated 3.3.1997, duly attested by the Executive Magistrate and witnessed by the counsel for Regular Second Appeal No.936 of 2003. -4- the plaintiff. The plaintiff was not having any objection if the connection was transferred in favour of defendant No.1. After completing other formalities and procuring indemnity bond from defendant No.1, the electric connection was transferred. Remaining averments of the plaintiff were controverted. From the pleadings of the parties, the learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the injunction prayed for ?OPP. 2. Whether the plaintiff is entitled to the declaration as prayed for ?OPP. 3. Relief. The learned trial Court decided issue Nos.1 and 2 in favour of the plaintiff and consequently decreed the suit with costs, vide judgment and decree dated 28.10.1999. Feeling aggrieved, the defendant No.1 filed an appeal which was dismissed by Shri Bhupinder Singh, the then Additional District Judge, Gurdaspur vide impugned judgment and decree dated 9.9.2002. Still feeling dis-satisfied, the defendant No.1 has filed the instant appeal. I have heard arguments addressed by the counsel for the parties and have carefully gone through the record of the case. Regular Second Appeal No.936 of 2003. -5- The learned counsel for the appellant has submitted that the following substantial questions of law have arisen for determination by this Court in this appeal:- 1. Whether the respondent No.1 can back out from the duly proved compromise, Exhibit D-1 ? 2. Whether the suit of respondent No.1 is liable to be dismissed as having been compromised in view of Exhibit D-1? 3. Whether the impugned judgments and decrees of the learned Courts below are liable to be set aside in view of compromise, Exhibit D-1? The counsel for the appellant filed Civil Misc.No.2801-C of 2002 seeking permission under Sections 65 and 66 of Indian Evidence Act for leading secondary evidence in respect of affidavit dated 3.3.1997. Another Civil Misc. Application No.1880/C of 2008 under Order 41 Rule 27 CPC has been moved to prove the affidavit dated 3.3.1997 by way of secondary evidence. Both these applications have been opposed by the plaintiff. It was pleaded that the affidavit was in possession of Electricity Board and lost in that office. Therefore, the production of additional evidence does not arise. To make out a case for permission under Order 41 Rule 27 Regular Second Appeal No.936 of 2003. -6- CPC, in Regular Second Appeal, the party has to make out a strong case. The affidavit in question was the basis of the defence of the appellant before the trial Court. By exercise of due diligence, the defendants could have proved the said document in the trial Court. The said affidavit is not required by the Court for pronouncing proper judgment and is further not required for any other substantial cause. There is no guarantee that the affidavit has been actually executed by the plaintiff and the defendants might have forged the same.The defendants could have produced a photostat copy of the affidavit in the trial Court. In the absence of the original, there is no guarantee that the photostat copy was of the original affidavit allegedly executed by the plaintiff. So, in these circumstances, no case is made out for allowing the appellant to prove the affidavit dated 3.3.1997 by secondary evidence or by way of additional evidence. So, both these applications stand dismissed. The main plank of the defendant before the trial Court was the affidavit dated 3.3.1997. Transfer of connection has been ordered on the basis of said affidavit. The said affidavit has not been proved by the defendant/appellant. So, no ground for interference in Regular Second Appeal is made out. The other stress laid down by the counsel for the appellant is in respect of agreement, Exhibit D-1. Both the Courts below have held that the appellant could enforce the agreement, in accordance with Regular Second Appeal No.936 of 2003. -7- law. It has been held by both the Courts below that since Exhibit D-1 has not been pleaded by the defendant/appellant, as such the appellant can have separate remedy to enforce the same. That finding does not require any interference. It is settled law that the Court cannot adjudicate upon the claim of the parties which is not put forth before it in their pleadings. According to the appellant, Exhibit D1, was in existence in the trial Court itself. The defendant has not got amended the written statement till today for pleading that agreement. So, in these circumstances, substantial questions of law raised by the appellant stand answered against him and in favour of the respondents, in view of the findings above. For the reasons recorded above, the appeal is without any merit and the same stands dismissed. May 13 ,2008. ( K. C. Puri ) Jaggi Judge