Dismissed

Geetha Sophie, v. the Junior Engineer

Madras HC16 Apr 2015CMSA(MD)/2/2015

Case brief

AI extract

What is this about?

In this civil second appeal regarding unauthorized electricity poles, the Madras High Court bench dismissed the appeal after finding that the lower courts correctly decided the factual issue regarding the appellants' lack of independent right over the property.

What did the court decide?

The Civil Miscellaneous Second Appeal is dismissed. Connected Miscellaneous Petition is closed. No costs.

Geetha Sophie, Vs the Junior Engineer — Contract and Commercial Disputes | Madras HC (2015)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 16.04.2015

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CORAM:

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THE HONOURABLE MS.JUSTICE V.M. VELUMANI

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CMSA.(MD).No.2 of 2015 and

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M.P.(MD).No. 1 of 2015

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Geetha Sophie

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Kanagam : Appellants/Appellants/Petitioners Vs.

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1.The Junior Engineer (Distribution) Tamil Nadu Electricity Board, Kuzhasekram, Kanyakumari District

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The Assistant Divisional Engineer, Tamil Nadu Electricity Board, Kulasekaram, Kanyakumari District

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The Superintending Engineer, Tamil Nadu Electricity Board, Nagercoil, Kanyakumari District : Respondents 1 to 3/ Respondents/Respondents/defendants

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T. Charles : 4th Respondent/Respondent/ Respondent/petitioner/Plaintiff

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Prayer: This Civil Miscellaneous Second Appeal is filed under Section 104 and Order 43 Rule 1 of CPC r/w. Section 100 of CPC against the Judgment and Decree passed in CMA.No.1 of 2014 on the file of the Sub Court, Padmanabhapuram dated 12.09.2014 confirming the order passed in E.A.No.81 of 2012 in E.P.No.80 of 2011 in O.S.No.59 of 2007 on the file of the Principal District Munsif, Padmanabhapuram dated 04.12.2013.

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For Appellants : Mr. C.K.M. Appaji

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O R D E R

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This Civil Miscellaneous Second Appeal is filed against the Judgment and Decree passed in CMA.No.1 of 2014 on the file of the Sub Court, Padmanabhapuram dated 12.09.2014 confirming the order passed in E.A.No.81 of 2012 in E.P.No.80 of 2011 in O.S.No.59 of 2007 on the file of the Principal District Munsif, Padmanabhapuram dated 04.12.2013.

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The fourth respondent has filed O.S.No.59 of 2007 on the file of the Principal District Munsif, Padmanabhapuram against the respondents 1 to 3 for Mandatory injunction directing the respondents to remove the Electricity transmission line, unauthorisedly erected in the fourth respondent property. The suit was decreed on 08.12.2009. The fourth https://hcservices.ecourts.gov.in/hcservices/ respondent filed E.P.No.80 of 2011 for executing the decree dated 08.12.2009. The appellants filed E.A.No.81 of 2010 in E.P.No.80 of 2011

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as obstructor, contending that electricity poles are erected in the common pathway. The fourth respondent impleaded only respondents 1 to 3 and did not implead the appellants. In the circumstances, the decree is not binding on the appellants and the same is not executable.

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The fourth respondent denied all the allegations made by the

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appellants. The execution Court dismissed the E.A filed by the appellants holding that the appellants failed to prove his independent right, where the electricity poles were erected. The Execution Court also held that the decree is executable one.

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The appellants filed CMA.No.1 of 2014 before the Sub Court, Padmanabhapuram and the First Appellate Court dismissed the same, confirming the order of Execution Court. The First Appellate Court held that the poles were erected without obtaining permission for erecting the same.

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Against the order of Courts below, the appellants have filed the present CMSA(MD).No.2 of 2015.

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The learned counsel for the appellants reiterated the averments made in the grounds of appeal and the main contention of the learned counsel for the appellants is that the poles were erected in the common pathway and electricity connection is given to the appellants house. The fourth respondent suppressing the fact, has obtained decree behind his back without impleading him in the suit. The appellants have filed O.S.No.209 of 2014 for declaration and an esmentary right over the property. The said suit is pending. The Courts below failed to consider these facts and erred in dismissing the application and an appeal filed by the appellants.

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The learned counsel for the appellants relied on the judgment of this Court reported in 2010-3-L.W.880, the relevant portion reads as follows:-

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“Upon consideration of objections of the land owners and the report of the District Revenue Officer, the District Collector has passed the order permitting TNEB to exercise the powers under Section 10 Part III of Telegraph Act and to continue the Project.”

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Heard the learned counsel for the appellants.

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I have carefully considered the materials on record. The Courts below have categorically given a finding that the petitioners have failed to prove their independent right over the property, in which electricity poles were erected. The First Appellate Court has given a finding that Electricity Poles in question had been erected without permission and hence they are unauthorisdely erected. These findings are question of fact. The Courts below have properly considered all the materials on record in proper and prospective and dismissed the application and appeal giving cogent and valid reasons.

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https://hcservices.ecourts.gov.in/hcservices/

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From the order of the Courts below, it is seen that no substantial question of law as framed by the appellants do not arise as

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lower Courts have decided only question of fact and there is no error in appreciating the facts. There is no circumstances warranting interference by this Court in the order of Courts below. The CMSA is deviod of merits is liable to be dismissed.

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In the result, the Civil Miscellaneous Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

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Sd/Assistant Registrar (CO) /True copy/

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Sub Assistant Registrar

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The Subordinate Judge, Padmanabhapuram.

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The Principal District Munsif, Padmanabhapuram.

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+1cc to MR.C.K.M.APPAJI, ADVOCATE IN SR : 19046

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Trp

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SR/KBM : 14.05.2015 : 3p/4c

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CMSA.(MD).No.2 of 2015 and M.P.(MD).No. 1 of 2015 16.04.2015

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https://hcservices.ecourts.gov.in/hcservices/

Geetha Sophie, v. the Junior Engineer

Case brief

What is this about?

What did the court decide?

Geetha Sophie, v. the Junior Engineer

Case brief

What is this about?

What did the court decide?

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