Allowed

The Divisional Engineer v. R.Dharmichand Kothari [Died]

Madras HC2 Feb 2024SA/621/2013

Case brief

AI extract

What is this about?

This second appeal concerned the cost of shifting electricity poles and a transformer erected in front of the respondent's house. The court held that as the respondent had previously undertaken to bear the cost, the appellants were entitled to recover the amount.

What did the court decide?

Respondents to pay Rs.3,32,470/- in two instalments within two months; upon receipt of second instalment, electricity board to shift poles and transformer.

The Divisional Engineer Vs R.Dharmichand… — Contract and Commercial Disputes | Madras HC (2024)

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S.A.No.621 of 2013

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 02.02.2024

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CORAM:

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THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN

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S.A.No.621 of 2013

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1.The Divisional Engineer,

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Tamil Nadu Electricity Board, Chidambaram.

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2.The Executive Engineer, Tamil Nadu Electricity Board, Chidambaram.

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3.The Assistant Engineer.

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Town/East, Tamil Nadu Electricity Board, Chidambaram

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... Appellants

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Vs.

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R.Dharmichand Kothari (Died)

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1.Kanwar

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2.Vijayalakshmi

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3.Kamalchand

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4.Rekha

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5.Hirachand

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6.Santha

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https://www.mhc.tn.gov.in/judis

S.A.No.621 of 2013

7.Rehapchand

... Respondents

PRAYER: Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 24.09.2012 made in A.S.No.8 of 2012 on the file of the Sub Court, Chidambaram and partly partly modifying the Judgment and Decree dated 29.04.2005 made in O.S.No.14 of 2002 on the file of the Additional District Munsif Court at Chidambaram.

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For Appellants : Mrs.Hemalatha Gajapathy

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For Respondents : Mrs.R.Meenal

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JUDGMENT

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This second appeal is directed against the judgment and decree of

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the court of Subordinate Judge at Chidambaram in A.S.No.8 of 2012 dated

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24.09.2012 in partly modifying the judgment and decree of the court of Additional District Munsif at Chidambaram in O.S.No.14 of 2002 dated

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29.04.2005.

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For the sake of convenience, the parties will be referred to as

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S.A.No.621 of 2013

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their ranks in the suit.

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O.S.No.14 of 2002 was filed by one Dharmichand Kothari for

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the relief of permanent injunction restraining the defendants and their

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subordinates in any manner installing the transformer in front of the plaintiff's

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house situated at door No.58 and 59 of North Car Street, Chidambaram and

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for mandatory injunction directing the defendant and their subordinates to

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remove the installed poles and transformer in front of the plaintiff's house

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bearing the aforesaid address.

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The learned trial judge framed the following issues:

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ghpfhuk; thjpf;F fpilf;fj;jf;fjh>

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2/ thjp tHf;Fiuapy; nfhUk; bray; cWj;Jf;fl;lis ghpfhuk;

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thjpf;F fpilf;fj;jf;fjh>

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3/ cga ghh;l;ofSf;F fpilf;ff; Toa ghpfhuk; vd;d>

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25/10/2004y; tidag;gl;l Tljy; vGtpdh>

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3/11

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S.A.No.621 of 2013

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1/ jpUj;jg;go jhthg;go braYWj;Jf;fl;lis ghpfhuk; bgw

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thjp jFjp gilj;jtuh>”

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Before the trial court, one Kamalchand Kothari, the son of the

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plaintiff examined himself as PW1 and marked Ex.A1 to ExA7. The defendant examined one Elangovan as DW1 and did not produce any

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evidence. The Advocate Commissioner who visited the site, filed Ex.C1 to

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C14.

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The trial court on appreciation of the evidence let in by both the

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parties, decreed the suit as prayed for. Aggrieved by the same, an appeal was preferred before the learned Subordinate Judge, Chidambaram in A.S.No.8 of 2012. The learned Appellate Judge modified the decree of the learned District

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Munsif and directed the shifting of poles with cost to be borne by the electricity board. Aggrieved by the said modification, the present second appeal has arisen before me.

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S.A.No.621 of 2013

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When the second appeal came up before this Court on

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29.08.2013, the appeal was admitted on the following substantial question of

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law:

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“Whether the Lower Appellate Court was right in

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modifying the decree directing the appellants to bear the cost for shifting the transformer and electric lines, when the respondents/plaintiffs admitted that they would undertake the cost for shifting the transformer and electric lines during the trial.”

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Conspectus of the agreement between both the parties that on the

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application made by the respondents, the electricity poles and the transformer erected in front of the plaintiff's house will be shifted. The only issue is as to

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who should bear the cost of such shifting. It is here that perusal of the plaint

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and Ex.A5 marked through PW1 through a lot of light. The plaintiff himself

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when he approached the court, in paragraph 3 of his plaint, has stated as

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S.A.No.621 of 2013

follows:

undertake to bear the cost of shifting of the poles.

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Further, representation was made on 18.12.2001 and

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17.01.2002.”

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The representation dated 18.12.2001 had been received as Ex.A5

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in the Court. The relevant portion of Ex.A5 reads as follows:

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Having undertaken to bear the cost of expenses, even prior to

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the litigation and having undertaken to pay the amount even in his plaint, it

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does not lie in the mouth of the legal heirs of the plaintiff today to argue

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before the court that it is the electricity board, which should bear the cost.

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S.A.No.621 of 2013

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Pending the litigation, this Court had directed the electricity

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board to give details of working, as to how much it would cost to shift the

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transformer and the electricity pole.

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The learned counsel for the appellants has stated that a sum of

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Rs.3,32,470/- will be the amount chargeable to the consumer.

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In the light of the specific pleading and the undertaken given in

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Ex.A5, this appeal necessarily has to be allowed. Therefore, the substantial

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question of law is answered in favour of the appellants and as against the respondents.

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The electricity board is directed to shift the transformer and the

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poles erected in front of the suit schedule mentioned property on receipt of

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Rs.3,32,470/- from the respondents.

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S.A.No.621 of 2013

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Mrs.Meenal, learned counsel for the respondents pleaded

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inability to pay the said sum in one and wanted to be paid in four instalments.

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I am not agreeable to grant four instalments and the said

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amount will be payable within two months in two equitable instalments. On

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payment of the second instalment alone, the electricity board shall shift the

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transformer and poles.

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Accordingly, the second appeal is allowed. The modified

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portion of the decree in A.S.No.8 of 2012 dated 24.09.2012 is set aside. The

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respondents shall pay a sum of Rs.3,32,470/- in two equitable instalments

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within a period of two months and the first instalment should be paid on or

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before 29.02.2024 and the second instalment should be paid on or before

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31.03.2024. On receipt of the second instalment, the electricity board shall

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shift the poles and transformer within one month from the date of receipt of

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S.A.No.621 of 2013

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the second instalment. i.e., on or before 30.04.2024. No costs.

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02.02.2024

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Note” Issue order copy on 05.02.2024

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Index : Yes/No Speaking order/Non-speaking order Neutral Citation : Yes/No

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1.The Sub Court, Chidambaram

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2.The Additional District Munsif Court at Chidambaram.

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S.A.No.621 of 2013

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V.LAKSHMINARAYANAN, J.

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S.A.No.621 of 2013

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The Divisional Engineer v. R.Dharmichand Kothari [Died]

Case brief

What is this about?

What did the court decide?

The Divisional Engineer v. R.Dharmichand Kothari [Died]

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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