Gyan Sudha Misra, J. - (1.) - This appeal has been preferred against the order dated 16.3.2000 passed by the Additional District Judge No. 2, Jaipur City, Jaipur granting temporary injunction in favour of the plaintiff-respondent after recording a finding that he is in actual physical possession of the suit premises and therefore, he should be entitled to take separate electricity and water connection for the disputed premises. The defendant-appellant who also happens to be full brother of the plaintiff-respondent, preferred an appeal challenging the aforesaid order granting temporary injunction in support of which the learned counsel for the appellant Shri B.L. Mandhana submitted that the plaintiff-respondent in his application for temporary injunction had never sought separate electricity and water connection in the suit premises and therefore, the relief which was not even sought in the plaint could not have been granted by the trial Court in favour of the plaintiff-respondent. In so far as the actual physical possession of the plaintiff-respondent is concerned, the same has been admitted on the plea that the plaintiff- respondent is a licenee of the suit premises and therefore, he is occupying the suit premises as a licencee and not an absolute owner. Thus, from the averments of the plaintiff-respondent himself, the actual physical possession of the plaintiff-respondent on the suit premises has been accepted even by the defendant-appellant and therefore, the finding of the Court below on this count does not suffer from any infirmity and therefore, the order of the Court below requires no interference on this count.
(2.) Now the only question which remains is whether the learned Additional District Judge was legally competent to permit the plaintiff-respondent to apply and avail the separate electricity and water connection which has been strenuously challenged by the defendant-appellant, but having read the operative portion of the impugned order of the injunction, it is sufficiently clear that the trial Court has merely granted the relief to the plaintiff- respondent to avail separate electricity and water connection on the basis of balance of convenience as also on humanitarian grounds and therefore, the contention of the counsel for the appellant that the defendant-appellant should not have been permitted to avail this facility since the electricity bills are being paid by the defendant-appellant, has no substance, as the plaintiff-respondent has been granted the authority to apply for separate electricity and water connection and he has not been permitted in any manner to avail the separate electricity and water connection at the cost of the defendant-appellant.
(3.) In so far as the previous contention of the counsel for the defendant- appellant the plaintiff-respondent should not have been granted the relief to avail the electricity and water connection without any prayer to that effect in the plaint is concerned, also appears to be without any substance for once the trial Court recorded a finding that the plaintiff-respondent is in actual physical possession of the suit premises which is also admitted by the defendant-appellant atleast to the extent that the plaintiff-respondent is occupying the suit premises as a Licencee, the fact remains that his actual physical possession on the suit premises is unblemished and suffers from no infirmity and in that circumstance if the basic amenity of electricity and water has been allowed to be availed by the plaintiff-respondent as an equitable relief, the same cannot be interfered with on the plea of the defendant-appellant that it could not have been granted because this plea specifically in express word was not taken in the plaint.;