JAMINI MOHAN ACHERJEE Vs. SANTOSH KUMAR ROY

JUDGEMENT

(1.) THIS revision petition is directed against an order passed on 4-101980 by the learned Sadar Munsiff, Agartala, in Title Suit No. 73 of 1978. By the impugned order the learned Munsiff injuncted the defendant-petitioner not to obstruct the plaintiff-respondent from taking electric connection to his house situated on Schedule 'A' land of the plaint by taking the electric lines over the Schedule 'B' land. This order was passed on an application filed under Section 151, C. P. C. by the plaintiff-respondent in which it was, inter alia, mentioned that the plaintiff had got permission for electric connection in his homestead and that there was no other way to take the electric lines except by drawing them over the Schedule 'B' land. It was further stated in the petition that the defendant-petitioner filed an objection before the S.D.O., Electric Division, whereupon work of carrying out the electrical installation was stayed. The plaintiff-respondent in the same application also alluded to his easement right in respect of Schedule 'B' land, as per condition incorporated, in the sale deed by which the plaintiff-respondent purchased Schedule 'A' land from the defendant-petitioner.

(2.) IN this connection, a brief reference may be made to the case of plaintiff-respondent as made out in the plaint. The suit was filed by the plaintiff-respondent on 6-7-1978 for a declaration of easement right of way by grant and of necessity and for perpetual injunction against the defendant-petitioner. In the same suit, an application for temporary injunction was also filed which was granted on 30-8-1978 and confirmed in appeal on 30-1-1979. In terms of the said injunction the defendant was restrained, inter alia, from causing any disturbance in plaintiff's easement right of peaceful user of pathway of Schedule 'B' land.

(3.) MR . Deb Roy who opposes the application has submitted in the forefront of his argument the fact that the petition had become infructuous as a result of the electrical installation work having been already carried out by the Electrical Department on 17-3-1981 as will be revealed from the counter-objection filed by him in this case which is duly supported by an affidavit. In this connection he has drawn my attention to the fact that when the rule nisi was issued on this petition by this Court on 3-3-1981, it refused ad interim stay to the petitioner. It is further submitted by him that in any event in view of the proviso to Section 115, C. P. C. this Court shall not interfere with the impugned order inasmuch as the defendant-petitioner has not made out any case to the effect that if the order is allowed to stand it would cause him irreparable injury. On the contrary, it is submitted, an interference with the order at this stage will cause serious injury to the plaintiff-respondent who will be deprived of the basic civic amenity like electricity. Mr. Deb Roy has further drawn my attention to Sections 4 and 13 (a) and (e) of the Easements Act, 1882, and to the statements made in the plaint as respects claim being grounded therein on easement of necessity. He has further submitted before me that the impugned order is neither violative of Section 151, C. P. C. nor of Section 12 (2) of the Electricity Act.