1983 PLP 3064 (CLC)

Civil Procedure Code (V of 1908--‑ ‑‑ O. XXXIX, rr. 1 & 2 ‑.‑Injunction‑‑Application for temporary injunction to restrain respondent from disconnecting electricity Rejected by revisional authority/ Additional District Judge on account of its becoming infructuous‑Appellant in fact succeeding to make out prima facie case before revisional authority but order passed in revision completely erroneous and based on facts prima facie seeming to be incorrect‑Order set aside and case remanded to trial Court for decision on merits. Mumtaz Ahmad for Appellant. A. T. Mahmood for Respondent. Date of hearing : 1st February, 1983. This Miscellaneous Appeal has been filed against the order passed by the learned First Additional District Judge on 26th June, 1982. The plaintiff is in occupation of a shop which according to the respondent is unauthorised. The respondent has provided electricity connection to the appellant with a meter fitted in his shop. The appellant had filed a suit for permanent injunction against the respondent on the allegation that he was treating to disconnect the electricity connection. Alongwith this suit an application under Order XXXIX, rules 1 and 2, C.P.C. for temporary injunction restraining the respondent from disconnecting the electricity was also filed. On the first date i.e., 24th May, 1982 the respondent appeared and at his request the matter was adjourned. On the next date the respondent also requested for time and again adjournment was grant ed till 14th July, 1982. During the month of June, when the Court was closed for summer vacation, the appellant filed an application for urgent hearing of the application as according to him, the respondent had threatened to disconnect the electricity connection. This application was rejected on 2nd June, 1982 on the ground that there was no urgency as the matter was fixed on 14th July, 1982. Against this order the appellant filed a Revision Application before the District Judge, which was admit ted and notice of the application for stay was issued. The respondent appeared and filed a counter affidavit on 23rd June, 1982 that the electri city connection had been disconnected on 18th May, 1982. The learned Additional District Judge, therefore, heard the application under Order XXXIX, rules 1 and 2 filed in the revision application and passed the im pugned order dated 26th .Tune, 1982 dismissing the application on the ground that as the electricity line has teen disconnected on 18th May, 1982 the application has become infructuous. Against this order the present appeal was filed and on 1st July, 1982 the Nazir was directed to inspect the premises and submit his report. The Nazir inspected the premises on the same date and found that the electricity connection was in order and the meter was still in operation. The appellant has also produced meter reading card in the name of the appellant issued by the respondent which shows that meter reading was recorded on 24th May, 1982 and 23rd June, 1982. This prima facie establishes that the electricity line had not been disconnected on 18th May, 1982. The affidavit filed by the res pondent was not sufficient to completely disregard this document which is in fact the document issued by the respondent. Mr. A. T. Mahmood the learned counsel for the respondent stated that this document has been fraudulently obtained by the appellant in collusion with certain staff members of the respondent. No particulars of such fraud have been given. The question whether it was obtained fraudulent means or not can be decided only at the time of final hearing when evidence is produced by the parties. Mere statement that it was obtained by collusion or fraud is not sufficient particularly when the Nazir has reported that on 1st July, 1982 the meter was running and electricity line was in operation. It seems that the appellant bad succeeded in making out a prima facie case before the revisional authority and the order passed by the learned Additional District Judge was completely erroneous and based on facts which prairie facie seem to be incorrect. In these circumstances I set aside the impugned order and direct that the application under Order XXXIX, rules I and 2, C. P. C. filed by the appellant should be heard by the learned Civil Judge. The observation made to this judgment shall not to any manner influence the decision of the learned Civil Judge who may decide the case on merits after considering the material on record as well as the arguments address ed by the learned counsel for the parties. Till such time, the application is decided by the Civil Judge parties should maintain status quo. The learned Civil Judge should decide the application within one month. M.Y.H. Appeal accepted.