N. Sallimuthu vs Arulmigu Kadaiyeswaran Koil Trustee Ragunathen

Mr. M. Duraiswamy, J.—Challenging the fair and final order passed in I.A. No.1985 of 2014 in O.S. No.368 of 2014 dated 12.02.2015 on the file of the learned District Munsif, Kangayam, the plaintiffs have filed this Civil Revision Petition.

The plaintiffs filed a suit in O.S. No.368 of 2014 to declare the judgment and decree passed in O.S. No.403 of 2008 dated 09.10.2009 on the file of the learned District Munsif, Kangeyam as null and void and to direct the defendants 2 to 4 to provide electricity connection to them. In the said suit, the plaintiffs filed an application in I.A. No.1985 of 2014 seeking for stay of the decree in O.S. No.403 of 2008. The said application was opposed by the defendants and the trial Court after taking into consideration the facts and circumstances of the case dismissed the application finding that a Civil Revision Petition in C.R.P. No.3275 of 2013 is pending before this Court.

It is the case of the petitioners that the first respondent herein filed a suit in O.S. No.403 of 2008 for permanent injunction restraining the Electricity Board Authorities from providing electricity connection to any one except the first respondent temple.

Since, the defendants who are Electricity Board Authorities remained absent, an ex parte decree was passed in O.S. No.403 of 2008 on 09.10.2009. A perusal of the judgment passed in O.S. No.403 of 2008 dated 09.10.2009 would go to show that the trial Court had mechanically passed the judgment even without referring to the deposition and documents filed on behalf of the defendants.

Now, it is brought to the notice of this Court that the Electricity Board Authorities have filed an application in I.A. No.1869 of 2012 under Section 5 of the Limitation Act to condone the delay in filing the petition. The trial Court allowed the said application against which, the first respondent has filed a Civil Revision Petition in C.R.P. No.3275 of 2013.

The learned counsel for the petitioners submitted that in view of the decree granted in O.S. No.403 of 2008, the petitioners who are in possession of the property are not in a position to get electricity connection for their respective houses. I am of the view that the decree granted in O.S. No.403 of 2008 is omnibus relief given to the first respondent. The Division Bench of this Court, in which, I was also a party to the judgment reported in 2013 (4) CTC 545 (Chitrakala v. P. Mahesh) following the judgment of the Hon''ble Apex Court reported in 2012 (5) SCC 265 : 2013 (4) CTC 865 (SC) (C.N. Ramappa Gowda v. C.C. Chandregowda (dead) by Lrs and another) the Division Bench held as follows :-

"16. In the present case, the plaint itself indicates that there are disputed questions of fact involved in the case giving rise to two versions. Therefore, it is not safe for the Court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. It is also well acknowledged by the legal dictum that assertion has no proof and hence, the burden lies on the plaintiff to prove that the property is available for partition. Even if there was no written statement to the contrary or any evidence of rebuttal, the burden is on the plaintiff to prove his case.

In our view, the trial Court clearly adopted an erroneous approach inferring that merely because there was no evidence of denial or rebuttal, the plaintiff''s case can be held to have been proved. Therefore, we are of the view that the judgment and decree of the trial Court are liable to be set aside and the matter should be remitted back to the trial Court for fresh disposal."

In the case on hand, even if the decree in O.S. No.403 of 2008 is suspended, till the disposal of the suit in O.S. No.368 of 2014, the revision petitioners get electricity connection for their respective houses, that will not give any advantage or right to them and their rights should be decided only in O.S. No.368 of 2014. Since, the electricity connection is a basic necessity, I am of the view that the petitioners, if they are in possession of the property may be provided with the electricity connection.

In this judgment, reported in 2013 (6) CTC 849 (T.M. Prakash v. The District Collector, Tiruvannamalai District), this Court held as follows :-

"81. Removal of encroachment is different, from entitlement to seek for Electricity supply. The law applicable for removal of encroachment and the mandatory duty to provide Electricity, under the Electricity law, are different and distinct. The delegated legislation, taking note of occupation of those in Poromboke lands, has recognised them as "occupiers", entitled to seek for Electricity supply, and in such circumstances, while removal of encroachment can be done, as per the procedure under the Encroachment Laws, supply of Electricity cannot be denied to the "occupier" of Poromboke lands. When statutory provisions do not differentiate a owner and occupier for the use or intended to use, Electricity supply even by a person in occupation of Poromboke Lands, denial of Electricity supply by the respondents, to the petitioners, who are in occupation, at least from 2005 onwards, amounts to discrimination and violative of Article 14 of the Constitution of India."

The above referred judgments squarely applies to the facts and circumstances of the present case. In these circumstances, I make it clear that the Electricity Board Authorities namely, the respondents 2 to 4 should ascertain as to whether the petitioners are in possession of the suit property and shall also give notice to the first respondent temple before considering the petitioners applications. As already stated, it is also made clear that even if the application in I.A. No.1985 of 2014 is allowed and electricity connection is given to the petitioners, the petitioners shall not stand in a better footing unless, they establish their right in the suit in O.S. No.368 of 2014.

With these observations, the order passed in I.A. No.1985 of 2014 in O.S. No.368 of 2014 is set aside and I.A. No.1985 of 2014 stands allowed. The Civil Revision Petitions is allowed. No costs. Consequently, connected miscellaneous petitions are closed.