THE HONOURABLE MR v. Mogana2. Minor Kalpana

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1397 of 2008and M.P.Nos.1 and 2 of 20081. The Executive Engineer (O & M) Tamil Nadu Electricity Board, Tiruttani.2. The Additional Executive Engineer (O&M) Tamil Nadu Electricity Board, Athimanjeripet.3. The Junior Engineer (O&M) Tamil Nadu Electricity Board, Athimanjeripet. ..Appellants/Defendantsvs.1. Mogana2. Minor Kalpana rep. by next friend and mother Mogana ..Respondents/PlaintiffsThis second appeal is filed against the judgment and decreepassed dated 13.12.2006 made in A.S.No.12 of 2005 on the file of theAdditional District Judge, Fast Track Court No.V, Tiruvallurconfirming the judgment and decree dated 20.09.2004 made inO.S.No.690 of 2001 on the file of the District Munsif Court atPallipattu.For Appellants : Mr.N.MuthuswamiFor Respondents : Dr.G.KrishnamurthyORDERThis second appeal is focussed by the original defendants,animadverting upon the judgement and decree dated 13.12.2006 passedin A.S.No.12 of 2005 by the Additional District Judge, Fast TrackCourt No.V, Tiruvallur, confirming the judgement and decree of the https://hcservices.ecourts.gov.in/hcservices/ trial Court, namely, District Munsif Court at Pallipattu, inO.S.No.690 of 2001. For convenience sake, the parties are referred tohereunder according to their litigative status before the trial Court.2. A summation and summarisation of relevant facts which areabsolutely necessary and germane for the disposal of this SecondAppeal would run thus:The plaintiffs/respondents filed the suit O.S.No.690 of 2001 asagainst the defendants seeking mandatory injunction. The defendantsentered appearance and filed the written statement resisting thesuit. 3. The trial Court framed the relevant issues. During trial, thefirst plaintiff examined herself as P.W.1 and Exs.A1 to A6 weremarked. On the side of the defendants, one Lakshmanan was examinedas D.W.1 and no exhibit was marked. 4. Ultimately, the trial Court decreed the suit, as againstwhich the appeal was filed, for nothing but to be dismissed by theFirst Appellate Court, confirming the judgment and decree of thetrial Court. Being disconcerted and aggrieved by the judgment anddecrees of both the Courts below, this Second Appeal is sought to befiled on various grounds and also by suggesting the following allegedsubstantial questions of law:"1. Whether the courts below right in finding thatsince Tamil Nadu Electricity Board received reconnectionfee is bound to reconnect the service connection eventhough the respondent has not produced the relevantdocuments to prove his ownership as on the date ofreconnection of service connection sought for by therespondent which was disconnected on 18.09.1989?2. Whether the courts below is right in orderingreconnection of the service connection in the absence ofany proof produced by the respondent for having producedthe documents?3. Whether courts below misdirected themselves byframing issues not relevant to the case on hand" (extracted as such)5. Heard both sides.6. A plain poring over and perusal of the typed set of papersincluding the copies of the judgments of both the Courts below andalso consideration of the arguments on either side would demonstrateand display that the plaintiffs filed the suit seeking mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction. The defendants entered appearance and resisted the suiton the ground that at the time of the plaintiffs seeking restorationof the electricity connection, they did not produce the relevantrecords justifying their right to seek for reconnection of theelectricity supply. 7. The learned counsel for the appellants would develop hisargument that the plaintiffs did not produce the relevant documentsto prove their ownership over the property concerned as on the dateof seeking re-connection. The learned counsel for the plaintiffswould appropriately and appositely, convincingly and correctlyadvance and set forth his argument that absolutely there is no iotaor shred, shard or miniscule, pint-sized or scintilla, molecular orjot of evidence to demonstrate and exemplify that there was any rivalclaim and in the absence of it, the Electricity Board was not at alljustified in developing doubts of their own and put the plaintiffs indifficulty. The exhibits marked on the plaintiffs' side evince andexpatiate, bespeak and betoken that the plaintiffs' claim for gettingreconnection is a well founded one.8. In the list of documents appended to the trial Court'sjudgment, what I could find is that the Death Certificates ofMunusamy Reddy, Ganesa Reddy and Damodharan Reddy have been marked asExs.A1 to A3 respectively. The first plaintiff claims to be thewidow and the second plaintiff is the minor daughter of deceasedDamodharan Reddy. Ex.A4, the legal heir certificate issued by theTahsildar, Pallipattu would exemplify that the plaintiffs are thelegal heirs of Damodharan Reddy. I am fully aware of the fact thatEx.A4 is not a conclusive document to prove the legal heirship in acontestable matter. However, for departmental purpose, such as, forgetting Electricity connection etc. that could rightly be relied onand that is why the Revenue Department is issuing such certificates.The Electricity Board even though was not convinced about theplaintiffs' claim at the time of seeking reconnection, atleast afterthe trial Court's judgment could have very well got itself satisfiedand complied with the directions of the trial court, butunnecessarily the Electricity Board who is in no way connected withthe heir ship of the plaintiffs, preferred appeal and further beingnot satisfied, preferred the Second Appeal also for nothing but to bedismissed now by this Court.9. At this juncture, I call up and recollect the followingdecisions of the Hon'ble Apex Court relating to concept substantialquestion of law:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:- https://hcservices.ecourts.gov.in/hcservices/ "17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time.......23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and thequestion should emerge from the sustainable findings offact arrived at by court of facts and it must be necessaryto decide that question of law for a just and properdecision of the case. An entirely new point raised for thefirst time before the High Court is not a question involvedin the case unless it goes to the root of the matter.(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL. Hence I could see no question of law, much less substantial questionof law involved in this matter.10. As pointed out correctly by the learned counsel for theplaintiffs, both the Courts below considered the pros and cons of thematter and thereafter, au fait with law and au courant with facts,passed the reasoned judgments warranting no interference. Nothinghas been highlighted in what way the Electricity Board would beprejudiced if reconnection is given. The learned counsel for theplaintiffs would also submit that if any more reconnection chargesare payable, they are ready to pay it. In such a case, I am of theopinion that the Electricity Board cannot harp upon the same old pleathat as on the date of seeking reconnection, necessary documents et https://hcservices.ecourts.gov.in/hcservices/ al were not produced. In the result, this Second Appeal is dismissed.No costs. Consequently, connected miscellaneous petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. The Additional District Judge, Fast Track Court No.V, Tiruvallur.2. The District Munsif Court at Pallipattu.+ 1 c.c. to Mr. G. Krishnamurthy, Advocate. S.R.No.19560.+ 1 c.c. to Mr. N. Muthuswami, Advocate. S.R.No.19430.S.A.No.1397 of 2008KK (CO)GSK 08.05.2009.