JUDGMENT

This second appeal is directed against the judgment and decree of the court of Subordinate Judge at Chidambaram in A.S.No.8 of 2012 dated 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

29.04.2005.

2. For the sake of convenience, the parties will be referred to as their ranks in the suit.

3. O.S.No.14 of 2002 was filed by one Dharmichand Kothari for the relief of permanent injunction restraining the defendants and their subordinates in any manner installing the transformer in front of the plaintiff's house situated at door No.58 and 59 of North Car Street, Chidambaram and for mandatory injunction directing the defendant and their subordinates to remove the installed poles and transformer in front of the plaintiff's house bearing the aforesaid address.

4. The learned trial judge framed the following issues:

“1.thjp tHf;Fiuapy; nfhUk; epue;ju cWj;Jf;fl;lis ghpfhuk; thjpf;F fpilf;fj;jf;fjh>

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

thjpf;F fpilf;fj;jf;fjh>

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

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

1/ jpUj;jg;go jhthg;go braYWj;Jf;fl;lis ghpfhuk; bgw thjp jFjp gilj;jtuh>”

5. Before the trial court, one Kamalchand Kothari, the son of the plaintiff examined himself as PW1 and marked Ex.A1 to ExA7. The defendant examined one Elangovan as DW1 and did not produce any evidence. The Advocate Commissioner who visited the site, filed Ex.C1 to C14.

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

7. When the second appeal came up before this Court on

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

“Whether the Lower Appellate Court was right in 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.”

8. Conspectus of the agreement between both the parties that on the 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 who should bear the cost of such shifting. It is here that perusal of the plaint and Ex.A5 marked through PW1 through a lot of light. The plaintiff himself when he approached the court, in paragraph 3 of his plaint, has stated as follows:

“He further stated he will voluntarily undertake to bear the cost of shifting of the poles. Further, representation was made on 18.12.2001 and

17.01.2002.”

9. The representation dated 18.12.2001 had been received as Ex.A5 in the Court. The relevant portion of Ex.A5 reads as follows:

“Mfnt. maa; h mth;fs; nkwg; o ouhd!; g; hh;kiu ntbwhU ,lj;jpw;F khw;wk; bra;a ntz;Lk; mjw;F cz;lhff;Toa khWjy; bryt[fis eh';fs; Vw;f jahuhf cs;nshk; vd;gij bjhptpj;Jf;bfhs;fpnwhk;/”

10. Having undertaken to bear the cost of expenses, even prior to the litigation and having undertaken to pay the amount even in his plaint, it does not lie in the mouth of the legal heirs of the plaintiff today to argue before the court that it is the electricity board, which should bear the cost.

11. Pending the litigation, this Court had directed the electricity board to give details of working, as to how much it would cost to shift the transformer and the electricity pole.

12. The learned counsel for the appellants has stated that a sum of Rs.3,32,470/- will be the amount chargeable to the consumer.

13. In the light of the specific pleading and