Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3509 of 2008 Date of decision: 22.07.2010 Phuman Singh s/o Amar Singh s/o Sohan Singh, r/o village Mandi, Tehsil Pehowa, District Kurukshetra. ..... Appellant. Versus 1. Manjeet Kaur w/o Mohinder Singh s/o Santokh Singh, r/o village Mandi, Tehsil Pehowa, District Kurukshetra. 2. Executive Engineer, UHBVNL, Division Pehowa, District Kurukshetra. 3. SDO, OP, Division, UHBVNL, Pehowa, District Kurukshetra ..... Respondents. 2- Regular Second Appeal No.4136 of 2008 Date of decision: 22.07.2010 Phuman Singh s/o Amar Singh s/o Sohan Singh, r/o village Mandi, Tehsil Pehowa, District Kurukshetra. ..... Appellant. Versus 1.Gurdial Singh s/o Santokh Singh, 2. Tarsem Singh s/o Gurdial Singh, 3. Manjeet Kaur w/o Mohinder Singh All rs/o village Mandi, Tehsil Pehowa, District Kurukshetra. 4. Executive Engineer, UHBVNL, Division Pehowa, District Kurukshetra. 5. SDO, OP, Division, UHBVNL, Pehowa, District Kurukshetra ..... Respondents. Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -2- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Jagdish Manchanda,Advocate for the appellant. (in both the appeals) Mr. Dinesh Arora, Advocate for respondent no.1 in RSA No. 3509 of 2008 and for respondent nos. 1 to 3 in RSA No.4136 of 2008. Mr. Mohnish Sharma, Advocate for Mr. Narinder Hooda, Advocate for respondent nos. 2 and 3 in RSA No. 3509 of 2008. Mr.Mohnish Sharma, Advocate for Mr. Narinder Hooda, Advocate for respondent Nos. 4 & 5 in RSA No. 4136 of 2008. Sham Sunder, J. This judgment shall dispose of Regular Second Appeal No.3509 of 2008, titled as Phuman Singh v. Manjeet Kaur and others and Regular Second Appeal No.4136 of 2008, titled as Phuman Singh v. Gurdial Singh and others, filed against the common judgment and decree dated 08.08.2008, rendered by the Court of Additional District Judge, Kurukshetra, vide which it dismissed, Civil Appeal No.92 of 2008, titled as Phuman Singh v. Manjit Kaur and others and Civil Appeal No.94 of 2008, titled as Phuman Singh v. Gurdial Singh and others, against the common judgment and decree dated 06.09.2005, rendered in Civil suit Nos. 208 of 2002 and 196 of 2002, decreeing the suit (without specifying which suit was decreed.). Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -3- 2. The facts of Civil Suit No. 208 of 2002, filed by Phuman Singh (now appellant) were to the effect that tube-well connection bearing No.T/4 247 was owned and possessed by him, which he got installed in his own land, bearing Khasra No.76/1/2, Khewat No.140, Khatoni No.365. It was stated that the defendants namely Gurdial Singh and Uttar Haryana Bijli Vitran Nigam Ltd.(hereinafter to be called as UHBVNL) through their Officers wanted to disconnect the electric connection, aforesaid, in collusion with each other. It was further stated that the Officers of UHBVNL were adamant to change the ownership of the aforesaid tube-well connection, in connivance with Gurdial Singh, in the name of some other person. It was further stated that the defendants were many a time, asked not to do so, but to no avail. On their final refusal, left with no alternative, a suit for permanent injunction, was filed. 3. Defendant Nos. 1 to 3 put in appearance, and contested the suit, by way of filing a joint written statement, wherein, it was pleaded that the suit was not maintainable, as already the suit with regard to the same electric connection was pending. It was further stated that Joginder Singh and Phuman Singh, two real brothers, got installed the aforesaid tube-well connection, in the land of their Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -4- joint ownership, but it was in the name of Phuman Singh. It was further stated that Mohinder Singh son of Santokh Singh, purchased the whole share of agricultural land of Joginder Singh son of Amar Singh, vide registered sale deed dated 14.10.98 alongwith the share in the tube-well aforesaid. It was further stated that the bore of the tube-well connection, aforesaid, was being used by Mohinder Singh, after the purchase of land from Joginder Singh, wherein it was installed. It was further stated that lateron, the water level went too low, and, as such, the tubewell connection was not, in operation. It was further stated that Manjit Kaur, wife of Mohinder Singh installed a new bore in the same tubewell and applied for extension of load from 7.5 BHP to 10 BHP with the UHBVNL. It was further stated that the tube-well connection, aforesaid, was installed in Khasra No.76/1/2 which was in exclusive possession of Mohinder Singh, who had not been heard for the last more than 7 years. It was further stated that the plaintiff, under the garb of the suit, wanted to dispossess Manjit Kaur wife of Mohinder Singh, who is in possession of the land, in dispute, as also the tubewell connection, aforesaid, forcibly and illegally. The remaining averments, contained in the plaint, were denied, being wrong. Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -5- 4. From the pleadings of the parties, the following issues were framed by the trial Court on 22.11.2002 :- “1- Whether the plaintiff is in possession of the suit land, as detailed in para no.2 of the plaint and the plaintiff is entitled to retain his electric connection No.T4 247 ?OPP 2- Whether the suit of the plaintiff is not maintainable in the present form ?OPD 3- Whether the plaintiff has no locus standi to file and maintain the present suit ?OPD 4- Whether the suit of the plaintiff is liable to be dismissed because of the concealment of true and material facts ?OPD 5- Relief.” 5. The facts, in brief, of Civil Suit No.196 of 2002, filed by Manjit Kaur wife of Mohinder Singh against Phuman Singh and others, run in the manner, that tubewell connection bearing No.T-4/247 was previously in the name of Dhian Singh son of Lakha Singh , resident of village Mandi. It was stated that Joginder Singh son of Amar Singh and Phuman Singh son of Amar Singh, real brothers, were joint owners in possession of the agricultural land and the electric connection, was got installed by them in killa No.76/1/2. It was further stated that Mohinder Singh, husband of the plaintiff, purchased the whole share of agricultural land of Joginder Singh son of Amar Singh, vide registered sale deed dated 14.10.1998 Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -6- alongwith share in the electric tubewell connection, aforesaid. It was further stated that since the level of water went very low, the tubewell could not be operated, as a result whereof, the plaintiff installed a new bore in the same tubewell and applied for extension of load from 7.5 BHP to 10 BHP with defendant nos. 2 and 3. It was further stated that Mohinder Singh, husband of the plaintiff, had not been heard of for the last more than seven years, and, as such, she is in possession of the land, in which the tubewell is installed as also the tubewell. It was further stated that defendant no.1 was threatening to transfer the electric connection or to sell away the same to somebody else. It was further stated that in case, he (defendant no.1) succeeded in doing so, then the plaintiff would be prevented from irrigating her land from the said tube-well connection. On their final refusal to desist from their illegal designs, left with no alternative, a suit for permanent injunction, was filed. 6. Defendant no.1, put in appearance, and contested the suit, by way of filing written statement. He pleaded therein that the plaintiff had no locus standi; and that she was neither owner nor in possession of the suit property. It was further pleaded that the plaintiff was estopped from filing the suit by her own act and conduct. It was further pleaded that no affidavit was filed in support of the amended plaint, and, as Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -7- such, the same was liable to be rejected. It was further pleaded that the plaintiff had not come to the Court with clean hands. It was stated that the tubewell connection, aforesaid, was got installed by him, which was in his possession. It was further stated that he was paying the electricity charges against the bills, issued by the UHBVNL. It was further stated that the said tube- well was installed in Rectangle No.76, khewat no.140, khatoni no.365 and khasra No. 1/2(3/19). It was further stated that the sale deed , executed in favour of Mohinder Singh, husband of the plaintiff, did not confer any right or interest in him with regard to the tubewell connection, aforesaid. It was further stated that the husband of the plaintiff never remained in possession of killa No.76/1/2. It was further stated that since the tube-well connection is in his (defendant no.1) name, he has every right to transfer the same to anybody he wants. The remaining averments, contained in the plaint, were denied being wrong. 7. Defendant nos. 2 and 3, put in appearance, and contested the suit, by way of filing joint written statement. In addition to the preliminary objections, taken by defendant no.1, they also pleaded that the plaintiff had no locus standi to file the suit as she was not the consumer. It was further pleaded that the Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -8- Civil Court had no jurisdiction to entertain and try the suit. It was further pleaded that plaintiff had no cause of action to file the suit. It was stated that the said tube-well connection, in the record of the UHBVNL, was installed in the name of Phuman Singh, defendant no.1. It was further stated that no information was given to UHBVNL regarding the sale of the land. The remaining averments, contained in the plaint, were denied, being wrong. 8. From the pleadings of the parties, the following issues, were framed, by the trial Court on 13.12.2002:- “1- Whether the plaintiff is in possession of the suit land, as detailed in para no.2 of the plaint and is entitled to retain his electric connection No.T-4 247 ?OPP 2- Whether the plaintiff has no locus standi to file the present suit ?OPD 3- Whether the suit is not maintainable in the present form ?OPD 4- Whether the plaintiff is estopped by her own act and conduct from filing the present suit ?OPD 5- Whether the suit of the plaintiff is liable to be dismissed because of concealment of material facts ?OPD 6- Relief.” Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -9- 9. Vide order dated 27.11.2004, on the joint statement of the Counsel for the parties, Civil Suit No. 208 of 2002, titled as Phuman Singh v. Gurdial Singh and others, was consolidated with Civil Suit No.196 of 2002, titled as Manjit Kaur v. Phuman Singh and others. It was further ordered that further proceedings shall be recorded in Civil Suit No. 196 of 2002. 10. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, vide common judgment dated 6.9.2005 decreed the suit of the plaintiff with costs. It was directed that copy of the judgment be placed in Civil Suit No.208 of 2002, titled as Phuman Singh v. Gurdial Singh and others. It was not mentioned, as to which civil suit, was decreed and which civil suit was dismissed or whether both the civil suits were decreed. However, in the zimni order dated 06.09.2005, passed in Civil Suit No.208 of 2002, it was recorded by the trial Court, that vide consolidated judgment in civil suit No.196 of 2002, titled as Manjit Kaur v. Phuman Singh and others, the suit of the plaintiff(Civil Suit No.208 of 2002) was dismissed with no order as to costs and the decree sheet be prepared. Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -10- 11. Two regular civil appeals were preferred by Phuman Singh, appellant, which were dismissed by the Court of Additional District Judge, Kurukshetra, vide common judgment and decree dated 08.08.2008. 12. Still feeling dis-satisfied, the instant Regular Second Appeals, have been filed by Phuman Singh, appellant. 13. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 14. As stated above, both the Civil Suits were consolidated and disposed of vide common judgment dated 06.09.2005, by the trial Court. Under issue no.6 (relief), the following order was passed by the trial Court:- “In view of my foregoing discussion, the suit of the plaintiff is decreed with costs. Decree sheet be prepared accordingly. Copy of this judgment be placed on Civil Suit No.208 of 2002 titled as Phuman Singh v. Gurdial Singh etc. File be consigned to the record room after due compliance.” 15. From the perusal of the aforesaid extracted order, it is not evident, as to which civil suit was decreed or both the civil suits were decreed or one civil suit was decreed and the Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -11- other civil suit was dismissed. However, in the short zimni order dated 6.9.2005,in Civil Suit No.208 of 2002, the trial Court passed the order, as under:- “Vide my consolidated judgment in Civil Suit No.196 of 2002 titled as Manjit Kaur v. Phuman Singh etc., the suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared accordingly and file be consigned to the record room after due compliance.” 16. The Reader of the trial Court, on the basis of the last para of the judgment, prepared decree sheets in both the suits, stating therein, that the same had been decreed. The last para of the common judgment, vide which both the suits, were disposed of, is contradictory to the short zimni order dated 6.9.2005, passed in Civil Suit No. 208 of 2002, titled as Phuman Singh v. Gurdial Singh etc. This material fact was not brought to the notice of this Court, by the Counsel for the parties, at the time of arguments, in these appeals. However, such a material fact, which goes to the root of the cases, could not lost sight by this Court. Even otherwise, perusal of the common judgment, passed in both the cases, by the trial Court, clearly goes to show that neither the brief facts of both the suits were separately stated, nor the pleas taken up by the defendants, in the written Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -12- statements of both the suits, were separately recorded therein, nor the separate issues struck in both the cases, were mentioned in the same. Even the findings, on each issue, struck in both the suits were not recorded by the trial Court. On the other hand, in the judgment, only the issues of one civil suit were, mentioned and the issues of one suit were decided without specifying as to which suit, the same related. In case, according to the short zimni order dated 6.9.2005, recorded in Civil Suit No.208 of 2002, filed by Phuman Singh, the suit of the plaintiff had been dismissed, then the decree was required to be prepared by the Reader that the suit had been dismissed and not decreed. The provisions of Order XX Rules 4 and 5 of the Code of Civil Procedure, are extracted hereunder:- “ Judgments of Small Cause Courts- (1) Judgments of a Court of small cause need not contain more than the points for determination and the decision thereon. (2) Judgments of other Courts:-Judgments of other Courts shall contain a concise statement of the case, the point(s) for determination, the decision thereon, and the reasons for such decision. Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -13- 5. Court to state its decision on each issue:- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.” 17. The common judgment dated 06.09.2005, rendered by the trial Court, is not in consonance with the provisions of Rules 4 and 5 of Order XX extracted above. The same is completely, in breach of the provisions aforesaid. The judgment of the trial Court, therefore, cannot be said to be a judgment in the eye of law. Even the First Appellate Court, did not care to go through the facts and circumstances of the case properly, to find out as to in which suit, the decree had been passed, and which suit had been dismissed and what was the effect of short zimni order, passed in civil suit No. 208 of 2002, titled as Phuman Singh v. Gurdial Singh etc., showing that the same had been dismissed, whereas the last para of the judgment, showed that the suit had been decreed. The Courts below also did not go through the decrees of both the suits to find out as to whether the same had been properly framed in accordance with the last para of the judgment or some clarification was required. In this view of the matter, no option is left with this Court, than to remand the case, after setting aside the judgments and decrees Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -14- of the Courts below, and directing the trial Court to re-write the judgment, after going through the evidence and record and hearing the Counsel for the parties. 18. For the reasons recorded above, Regular Second Appeal No.3509 of 2008 titled as Phuman Singh v. Manjeet Kaur etc. and Regular Second Appeal No.4136 of 2008 titled as Phuman Singh V. Gurdial Singh etc. are accepted with no order as to costs. The judgments and decrees of the Courts below are set aside. The case is remanded back to the trial Court with a direction to go through the evidence, led in both the cases, as also the records thereof and re-write the judgment, stating therein briefly the facts of both the civil suits, as also the pleas taken up in the written statements, the issues struck in both the cases separately and giving specific findings on each issue, struck in both the cases. The trial Court shall also in clear cut manner record the findings, with regard to the decree or dismissal of each suit, specifically. The trial Court shall undertake the aforesaid exercise, and complete the same within a period of two months from 11.08.2010. 19. The parties through their Counsel are directed to appear before the trial Court on 11.08.2010. Regular Second Appeal No. 3509 of 2008 & Regular Second Appeal No. 4136 of 2008 -15- 20. The Registry is directed to send the copies of the judgment alongwith the records, complete in all respects, to the quarters concerned, immediately, so as to reach there before the date fixed positively. 22.07.2010 ( Sham Sunder ) dinesh Judge