Abdul Khaliq v. BSES Yamuna Power Ltd & Anr

1. This is a regular second appeal filed against the judgment dated 23.4.2012 passed by Sh. O.P.Gupta, District Judge, upholding the judgment dated 22.12.2011 passed by the Civil Judge (West), Delhi.

2. I have heard Mr.Ansari, learned counsel for the appellant. 2013:DHC:616

3. The learned counsel for the appellant has not been able to make out any substantial question of law arising from the appeal.

4. The questions which have been formulated in the appeal by the appellant are essentially questions of fact. For reference, these questions are reproduced as under:-

(i) Where various litigations are pending and going on between the parties, whether the title of a party can be decided without first recording evidence?

(ii) When once electricity connection has been mutated in the name of the appellant, can the same undergone without notice to the appellant?

(iii) Whether the right of hearing is integral part of principles of natural justice, even if the Rules are silent?

(iv) Where the title of the property is in dispute, court can ignore the importance of possession or take away the possessory right of the party?

(v) Whether prima facie the party in possession of the property is entitled to enjoy electricity in his name, especially when the other claimant’s title is yet to be decided?

5. The suit was originally filed by the present appellant/plaintiff against BSES Yamuna Power Ltd. praying therein for a decree of permanent injunction for restraining the defendant/BSES from issuing electricity bill in respect of the meter installed at shop no.11, Cotton Market, Jama Masjid, Delhi in the name of Razia Begum or any other person.

6. The respondent/BSES filed the written statement and raised preliminary objections regarding the locus of the appellant to file the suit. It was also stated that no cause of action has accrued to the appellant because the shop in question was originally allotted on licence basis to one Abdul Rauf, husband of Razia Begum by the DDA who had expired and thereafter, the shop was mutated in the records of the DDA in favour of Razia Begum as the licencee and therefore, electricity connection was sanctioned in favour of Razia Begum. It was stated that the bills could be raised in her name as the electricity connection was in her name.

7. On these pleadings of the respondent no.1/defendant, the appellant/plaintiff impleaded Razia Begum as the defendant no.2 in the suit.

8. On completion of pleadings, the trial court framed a preliminary issue as to ‘whether the plaintiff has any cause of action against the defendants? OPP’

9. Since this was an issue which was to be decided on the basis of the pleadings and the documents on record and there was no prayer on behalf of the appellant for permitting him to adduce any evidence, consequently, arguments were heard and this issue was decided against the appellant. The reason for deciding this issue against the appellant was that the respondent no.2/ Razia Begum was stated to be the transferee/licencee by the DDA and a letter in this regard was also placed on record. The stand of the respondent no.1 was that the electricity connection could be issued only in favour of the respondent no.1 and merely because the appellant was claiming himself to be in possession of the shop in question that in itself is not a ground for sanctioning of the electricity connection or for changing the meter in the name of the appellant or even raising the bill in his name.

10. As a matter of fact, the suit was dismissed on this preliminary objection though it ought to have been rejected and the issue which ought to have been framed is as to whether the plaint is liable to be rejected under Order 7 Rule 11 (a) CPC which specifically deals with the situation where a plaint is liable to be rejected on the ground of lack of cause of action.