Acts/Rules/Orders:
Civil Procedure Code, 1908 - Order X, Rule 2 - Order 14, Rule 1;Electricity Act, 1910 - Section 12(2);Indian Telegraph Act, 1885 - Sections 10 and 11
Cases Referred:
Mysore State Electricity Board v. Shri Krishnapura Mutt, RSA No. 657 of 1965, DD: 31-5-1985;Aziz Ahmed Khan v. I.A. Patel, AIR 1974 AP 1;Laxmibai v. Kashibai, 1982(1) Kar. L.J. 229;Bindu Sharma v. Ram Prakash Sharma, AIR 1996 All. 429;Gangapal v. Lal Bahadur, 1895 ILR XVII All. 117;Jagannath Prasad Bhargava v. Lala nathimal and Others, AIR 1943 All. 17;Suraj Bhan v. Padam Chanda, 1979 ALJ 52;Moran Mar Basselios Callilies v. Rev. Mar Poulose Athaniaus, AIR 1954 SC 526;Smt. Kaniz Fatima v. Shah Naim Asharaf, AIR 1983 All. 450
JUDGEMENT
1. This suit and the trial of the suit appears to be suffering from material irregularities and illegality.
2. The brief facts of the case are that, this plaintiff's appeal arises from the judgment and decree of the Trial Court namely XVIII Additional City Civil Judge, Bangalore, dated 23-1-1989 whereby the Trial Court dismissed the plaintiff's suit for injunction directing the defendants-respondents to remove their electric pole which according to the plaintiff, they put on the plaintiff's land and which according to the plaintiff-appellant has the tendency of causing severe damage as because of the hanging wires on plaintiff's land, it has created obstruction to the raising of construction on that land. In paragraphs 1 and 2 of the plaint, the plaintiff has asserted that the plaintiff is the absolute owner of the property where the Electricity Board has put up electric pole. Plaintiff has asserted that he has issued notice to defendants to take steps to remove the pole and they have not taken any steps in that regard. In paragraph 2, the plaintiff has very clearly stated that the officials of the Karnataka Electricity Board without looking into the fact whether it is a private property or not has put up electric pole in the property belonging to the plaintiff. Plaintiff requested the Chairman and the 2nd defendant to remove the pole put up by them, but of no avail. No doubt, plaintiff has asserted that after the application was filed before the Chairman and protest made by the plaintiff, the Electricity Board stopped giving connection but did not remove the pole. In para 2(a) of the plaint, the plaintiff has stated that the wires put up by the defendants pass through the vacant site of the plaintiff wherein the plaintiff proposes to put up construction and for which he has obtained sanctioned plan. Due to the wire hanging on and passing through the property of the plaintiff, plaintiff is not in a position to put up any construction on the site and the entire site will be a waste if the wires are not removed. The plaintiff has further stated in the plaint that the cause of action to have accrued in his favour in July 1983.
3. The defendants have filed their written statement. In para 1 of the written statement, it has been stated that the allegations in para 1 are to be proved by the plaintiff. It has further been stated that as regards the allegation in para 1 relating to litigation between the plaintiff and one Ramachandraiah the same was not denied as being there, but it was asserted that suit was bad as the plaintiff has not made Ramachandraiah as a party. The defendants in the written statement have stated that the pole has been erected for the purpose of extending electricity facility to the residents of Hassan Nabi and Kavalbyrasandra. In para 2 it has been stated that the land on which the pole has been erected, belongs to the plaintiff is not correct, nor admitted and the defendants asserted that the electric pole has been erected in 1982 on the public road and the land does not belong to the plaintiff at all. In paragraph No. 3 it has been stated that the defendants deny the plaintiff's allegation that the plaintiff is the owner of the place or land where the electric pole has been put up. It has further been stated that this is a public place and the plaintiff has no right to claim or interest over that land and it was asserted that the suit was liable to be dismissed.
4. The learned Trial Court, in this case, framed the following issues.-
1. Does the plaintiff prove that the defendants have put up electric pole in the suit property illegally?
2. Whether the said pole is liable to be removed?
3. Whether the plaintiff is entitled for injunction?
And no other issues have been framed. The Trial Court dismissed the suit taking the view that in view of the provisions of the Indian Electricity Act, 1910 and Indian Telegraph Act, 1885 as held and opined by the Hon'ble Single Judge of this Court in the case of Mysore State Electricity Board v Shri Krishnapura Mutt, the Electricity Board has got a right to draw electric lines over the property of private individuals, and he further observed that by no stretch of imagination it could be said that the pole in question is situated in the plaintiff's property. Feeling aggrieved from the dismissal of the suit by the Trial Court, the plaintiff has come up in appeal.
5. I have heard Smt. K.K. Thayamma, learned Counsel for the appellant and Shri B. Rudragowda, learned Counsel for respondents respectively at some length. I have also gone through the records of the Court below.
6. In my opinion, the trial and decision of the case suffers from error of law and substantial material irregularity amounting to mistrial. As per the provisions of the Code of Civil Procedure, in particular, under Order XIV, Rule 1, it is the duty of the Trial Court to frame necessary issues which arise from the material proposition of fact and law as affirmed by the one party and denied by the other. Order XIV, Rule 1 reads as under:
'Order XIV, Rule 1. Framing of issues.-
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) Issues of fact,
(b) Issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence'.
A reading of Order XIV, Rule 1 per se reveals that it casts a mandatory duty on the Trial Court to frame all necessary issues arising from the pleadings namely material propositions of fact and law -- Aziz Ahmed Khan v I.A. Patel and Laxmibai v Kaskibai.
7. Plaintiff had alleged and asserted as mentioned in the pleadings that the land on which electric pole is and had been installed by the Electricity Board belongs to the plaintiff and the plaintiff is the owner thereof while the defendant Electricity Board has asserted, as per its pleadings quoted above, that the land does not belong to the plaintiff, and it is a public road. No finding can be recorded without framing necessary issues and indicating the burden of proving on the parties and giving opportunity to them to produce evidence. Really, it is and has been the duty of the Trial Court to have framed issues on the question whether the land on which pole has been installed by the Electricity Board did belong to the plaintiff or it is the public road. Hence, following two issues have to be framed.
(1) Whether the land in dispute over which the pole has been installed did belong to plaintiff and the plaintiff is the owner?
(2) Whether the land in dispute is the public road as asserted by the defendant?
Para 2(a) has been added by way of an amendment in 1988. The Trial Court should have framed additional issues specially if those allegations had been denied by the defendants. Plaintiff has asserted that wiring of the Electricity Board hanged over the land of the plaintiff and as a result thereof, it has the tendency to cause obstruction in plaintiff's user of his land by raising the construction which he proposes to do. Damage in law and damage in fact have to be looked into. Because of hanging of wire plaintiff is unable to put up construction and it is likely to render user of the land nugatory. Therefore, the Trial Court should have framed issues on para 2(a) of the plaint, as 'whether the wires put up by the defendants hang over and pass through plaintiff's land and whether they have the tendency to cause obstruction in the way of plaintiff's raising construction on his land and if so, it affects and to what damages the plaintiff would have been entitled to?'. Sections 10 and 11 of the Telegraph Act had been made applicable with reference to the matter of putting the electricity wire under the Indian Electricity Act, when they provide that the Electricity Board can make use of the property of a private individual. It is also provided thereunder that it shall be seen that minimum possible damage is caused to the owner of the private property vide Section 10-C. An unreported judgment of this Court dated 31-5-1985 given in Mysore State Electricity Board's case, supra, had been referred to and relied by the Trial Court as well as by the respondents. Section 10(c) provides that if in exercise of powers conferred under Section 10, the authority shall do it with as little damage as possible and when it has exercised those powers in respect of any property and referred to any clause, that it shall pay full compensation to the person interested for damages sustained by him by reason of exercise of those powers. So the Trial Court should have framed the further following issues.-
(1) Whether the damage done to the plaintiff could be minimised by shifting of pole from the place to some other place?
(2) Whether and to what extent the damage is caused or likely to be caused to the plaintiff?
(3) Whether compensation has or had ever been paid to the plaintiff because that Board is depending on payment of compensation?
No doubt, Electricity Board is or may be entitled to make use of the property by causing minimum possible damage to the owner of the private property, if it has to be done. Otherwise, that is contrary to this consideration and the authorities are not entitled to make use of it. Thus these issues have not been taken into consideration and have not been decided by the Trial Court. The Trial Court has vaguely stated that the Electricity Board is entitled to make use of the private property for its purpose i.e., for putting electric poles or vaguely observing that it cannot be said that pole in question is situate in the plaintiff's property. This finding observation appears to have been arrived at or made without there having been framed an issue on the point and without the plaintiff being given opportunity to lead any evidence. Such an approach of trial really has resulted in mistrial and is not sustainable and liable to be set aside as well so is set aside. In so opining, I am supported by Division Bench decision of Allahabad High Court in Bindu Sharma v Ram Prakash Sharma , (para 16). The Electricity Board even was, or may have been entitled, no doubt, to make use of the property, but to apply Section 10(c) of Telegraph Act, the Court below should have taken into consideration and decided after framing the issue of minimum possible damage which could be or was done to the private persons' property and if so its effect and if any compensation as per requirement of Telegraph Act has been at all assessed and paid by Electricity Board.
8. Thus, in my opinion, the whole trial of the suit has been vitiated by error of law and decree passed by the Trial Court dismissing the plaintiff's suit in toto suffers from illegality in exercise of authority or jurisdiction as well by the Trial Court which is of substantial nature, as has resulted in mistrial causing substantial injury to course of trial by denying him due opportunity to produce necessary and material evidence as urged. I find support for my above view of law from the following decisions:
(1) Gangapal v Lal Bahadur;
(2) Jagannath Prasad Bhargava v Lala Nathimal and Others;
(3) Suraj Bhan v Padam Chanda (paras 15 and 18);
(4) Moran Mar Basselios Callilies v Rev. Mar Poulose Athaniaus;
(5) Smt. Kaniz Fatima v Shah Nairn Asharaf (paras 19 and 20) and
(6) Lakshmi Bai's case, supra (at para 19, pages 232 and 233).
Thus, considered in my opinion it is a fit case to set aside the Trial Court's judgment and decree and to remand the case for trial a fresh of suit after framing the necessary issues in the light of pleadings and observations made above in this judgment, and in particular the issues which are framed herewith.-
(1) (a) Whether the land on which the electric pole has been put up by the Karnataka Electricity Board belongs to the plaintiff as a owner or that any right or title is vested in him?
(b) Whether the land in dispute is a public road as alleged by the Electricity Board? If so, its effect?
(2) Whether the pole which has been put up has the tendency of causing damage as asserted by the plaintiff in paragraph 2(a) of pleadings? If so, its effect?
(3) Whether the damage caused or likely to be caused could be minimised in the matter of putting up pole on the property of the plaintiff-appellant?
(4) Whether and to what extent damage has been caused to plaintiff and whether any compensation has ever been paid to the plaintiff? If not, its effects.
These issues are in addition to the issues already framed by the Trial Court.
9. The appeal is allowed and the case is remanded for trial of suit a fresh on all issues on merits. Parties may be allowed to lead their evidence on these issues, framed by this Court. It is expected that the parties will co-operate in the expeditious decision of the case as the suit is of 1984. The Trial Court shall decide this case expeditiously and in every case within a period of not more than one year from the date of receipt of records. The appeal is allowed with the costs of the appeal.