SCA/1345120/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13451 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 ? ========================================= = UTTAR GUJARAT VIJ COMPANY LIMITED - Petitioner(s) Versus MODI KIRANKUMAR AMRATLAL & 3 - Respondent(s) ========================================= = Appearance : MR PREMAL R JOSHI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4. MR ABHAYKUMAR P SHAH for Respondent(s) : 1, 3, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/12/2008 ORAL JUDGMENT 1. RULE. By way of this petition under Article 227 of the Constitution of India the petitioner-original plaintiff has prayed for an appropriate writ, order and direction quashing and setting aside the impugned order dated 20/08/2008 passed by SCA/1345120/2008 2/7 JUDGMENT the learned Principal Senior Civil Judge, Idar below Exh. 37 in Special Civil Suit No. 13/2007 (Old Special Civil Suit No. 44/2003) by which the learned trial Court has passed an order allowing the application submitted by original defendants nos. 1 and 3 deleting them as defendants nos. 1 and 3. 2. The petitioner-original plaintiff had instituted Special Civil Suit No. 44/2003 in the Court of learned Civil Judge (Senior Division), Himatnagar against the respondents-original defendants for a decree of Rs. 6,04,950.68 towards the theft of electricity in the suit premises. At the relevant time, the electricity connection was in the name of respondent no. 1- original defendant no. 1-Modi Kirankumar Amratlal and in the said premises one Ice Factory was being run. In the said suit, after a period of almost three years of filing the suit, respondents nos. 1 and 3-original defendants nos. 1 and 3 submitted an application, Exh. 37 under Order 1 Rule 10(2) of the Code of Civil Procedure to delete original defendants nos. 1 and 3 as defendants by submitting that defendants nos. 1, 2 and 3 have entered into an agreement with defendant no. 4- Sanjay Shivramdas Patel and the said Sanjay Shivramdas Patel was running the Ice Factory at the relevant time when the alleged incident of electricity theft had taken place. It was submitted that in view of the above, there cannot be any liability on original defendants nos. 1, 2 and 3, more particularly, original defendants nos. 1 and 3, and, therefore, it was requested to delete them as defendants as the liability of the amount towards the alleged theft of electricity cannot be fastened upon original defendants nos. 1 and 3. The said application, Exh. 37 was opposed by the petitioner-original plaintiff submitting that admittedly the electricity connection SCA/1345120/2008 3/7 JUDGMENT was/is in the name of original defendant no. 1-Modi Kirankumar Amratlal and as per the consent agreement, even defendant no. 3-Modi Sitarambhai Amratlal has accepted the liability arising out of the aforesaid electricity connection. Inspite of the above, the learned Principal Senior Civil Judge, Idar allowed the said application, Exh. 37 ordering to delete defendants nos. 1 and 3 from the aforesaid suit. Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Senior Civil Judge, Idar dated 20/08/2008 below Exh. 37 in Special Civil Suit No. 13/2007 (Old Special Civil Suit No. 44/2003), the petitioner-original plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri Premal Joshi, learned advocate appearing on behalf of the petitioner-original plaintiff has vehemently submitted that considering the fact that the electricity connection was in the name of original defendant no. 1-Modi Kirankumar Amratlal, any liability arising out of the aforesaid electricity connection would be upon original defendant no. 1 also unless and until the same is legally transferred in the name of any third party. It is further submitted that even original defendant no. 3-Modi Sitarambhai Amratlal has also agreed while executing the consent agreement that he is the partner of Uma Ice Factory and he has no objection if original defendant no. 1- Modi Kirankumar Amratlal is given the electricity connection in his name and in case of any liability arising out of the said connection, the same would be upon original defendant no. 3 also, and, therefore, it is submitted that in view of the above, the learned trial Court has materially erred in allowing the said application, Exh. 37 ordering to delete original defendants nos. SCA/1345120/2008 4/7 JUDGMENT 1 and 3. It is further submitted that the petitioner-original plaintiff is not concerned with any internal transaction/transfer with defendants nos. 1, 2, 3 and 4, and, therefore, it is requested to allow the present Special Civil Application. 4. The present petition is opposed by Shri Abhaykumar P. Shah, learned advocate appearing on behalf of the respondents-original defendants nos. 1 and 3. It is submitted that considering the documents executed between original defendants nos. 1 and 3 and defendants nos. 2 and 4, i.e. Mark 30/1, 30/2 and Mark 38/1, 38/2, original defendant no. 4 was running the Ice Factory at the relevant time when the alleged case of electricity theft has been filed, and, therefore, the learned trial Court has rightly passed the impugned order deleting original defendants nos. 1 and 3 in exercise of powers under Order 1 Rule 10(2) of the Code of Civil Procedure. It is submitted that the theft having been committed by original defendant no. 4, original defendants nos. 1 and 3 cannot be made liable to pay the said amount of electricity and, therefore, it is requested to dismiss the present Special Civil Application. In the alternative, it is submitted to direct the learned trial Court to decide and dispose of the suit at the earliest. He has also submitted that he has no objection if the suit is ordered to be heard by another Judge other than who has passed the impugned order. 5. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the petitioner-original plaintiff had instituted Special Civil Suit No. 44/2003 in the Court of learned Senior Civil Judge (Senior Division), Himatnagar claiming decree for an amount of Rs. SCA/1345120/2008 5/7 JUDGMENT 6,04,940.68 for the alleged theft of electricity. Admittedly, the electricity connection was/is in the name of original defendant no. 1-Modi Kirankumar Amratlal. Original defendants nos. 1, 2 and 3 are the partners of Uma Ice Factory. Original defendant no. 3-Modi Sitarambhai Amratlal has executed one consent agreement that he has no objection if the electricity connection is in the name of original defendant no. 1-Modi Kirankumar Amratlal, partner of Uma Ice Factory and that he can also be held jointly liable to pay any amount arising out of the aforesaid electricity connection. It is the contention on behalf of original defendants nos. 1 and 3 that subsequently, they have transferred the Ice Factory in favour of original defendant no. 4 and at the relevant time, original defendant no. 4 was running the Ice Factory and, therefore, it is the contention on behalf of original defendants nos. 1 and 3 that they cannot be held liable to pay the amount towards the alleged electricity theft while running the Ice Factory by original defendant no. 4. The aforesaid aspects are required to be considered at the time of trial on leading appropriate evidence. However, in view of the above, original defendants nos. 1 and 3 cannot be ordered to be deleted at this stage in exercise of powers under Order 1 Rule 10(2) of the Code of Civil Procedure. Whether in the facts and circumstances of the case original defendants nos. 1 and 3 can be held liable or not is required to be considered at the time of trial on leading appropriate evidence. Under the circumstances, the learned trial Court has materially erred in allowing the application, Exh. 37 ordering to delete original defendants nos. 1 and 3 from the aforesaid suit. Under the circumstances, the impugned order deserves to be quashed and set aside. SCA/1345120/2008 6/7 JUDGMENT 6. For the reasons stated hereinabove, the present Special Civil Application succeeds. The impugned order passed by the learned Principal Senior Civil Judge, Idar below Exh. 37 in Special Civil Suit No. 13/2007 (Old Special Civil Suit No. 44/2003) is hereby quashed and set aside and as requested by the learned advocate appearing on behalf of the respondents- original defendants, the learned trial Court is directed to decide and dispose of Special Civil Suit No. 13/2007 (Old Special Civil Suit No. 44/2003) as early as possible but not later than 31/03/2010. All the parties concerned are directed to co operate for early disposal of the suit within the stipulated time stated hereinabove. The learned trial Court to decide and dispose of the suit in accordance with law and on its own merits. Parties to complete the pleadings, if not completed, within a period of four months from today. 7. The learned Principal District Judge, Sabarkantha is directed to see that the aforesaid Special Civil Suit No. 13/2007 (Old Special Civil Suit No. 44/2003) is heard, decided and disposed of by any other Judge other than the Judge, who has passed the impugned order dated 20/08/2008, which is hereby quashed and set aside, even as agreed by the learned advocate appearing on behalf of the respective parties. 8. With this, the present Special Civil Application is allowed. Rule is made absolute. There shall be no order as to costs. 9. Registry is directed to send the writ of this order to the learned trial Court as well as the learned Principal District Judge, Sabarkantha forthwith. (M.R. SHAH, J.) SCA/1345120/2008 7/7 JUDGMENT siji