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1988 DIGILAW 698 (ALL)

Sardar Amarjit Singh Nayyar v. Sayeed Uddin Khalid Shah

1988-08-09

N.N.MITHAL

body1988
JUDGMENT N. N. Mithal, J. - Feeling aggrieved by the order of the court below dismissing the application for grant of temporary injunction, the plaintiff has filed the present appeal. 2. The admitted fact are that respondents 1 and 2 are the owners of Bungalow No. 116-D, Chappel Street; Meerut Cantt. and the same had been let out to the plaintiff under a registered lease deed dated 31st May, 1986 on a monthly rent of Rs. 4,000/- for a period of five years. However, out of the entire premises, a part of it designated as Annexe, was excluded from the plaintiff's tenancy. The plaintiff's tenancy also included one garage and a Chaukidar's suite. 3. According to the case set up by the plaintiff, the premises had been taken by him on rent and he was using the same as a place from where marriages could be solemnised. Since defendants 1 and 2 were creating hindrances by parking vehicles on the main entry and were also creating harassment to the plaintiff's customers, the present suit for injunction was filed to restrain the defendants 1 and 2 from parking the vehicles in such a way as to obstruct the entry of the premises in the tenancy of the plaintiff and from threatening his customers who come to the premises. Simultaneously an application for an ad interim injunction was also moved almost on the same grounds. In the affidavit in support thereof it was stated in paragraph 5 that the premises have been taken on rent by the plaintiff for the purposes of lodging marriage parties and after spending substantial amount he had remodelled the property to make it suitable for this purpose. 4. The application was opposed on several grounds and it was mainly pleaded that the premises have been let out only for the purposes of plaintiff's residence and not for converting its use into commercial one. It was also alleged that the property is situate in the bungalow area in the Cantonment and any change in its purpose is likely to invite objections from the Cantonment authorities and also from the Defence Estate Officer. Apart from this, it is also alleged that on account of marriage parties and functions connected therewith, a lot of nuisance is created. Apart from this, it is also alleged that on account of marriage parties and functions connected therewith, a lot of nuisance is created. A further grievance has been made that on account of blaring of loudspeakers, it has become difficult for the members of defendants' family to live in the Annexe in a peaceful manner. 5. The court below, on a consideration of material before it, came to the conclusion that the plaintiff was using the premises for a commercial purpose which he could not do without proper permission of the Cantonment authorities and that the user of the premises as a 'Barat Ghar' is causing nuisance to the defendants. On the basis of this, the application for interim injunction was rejected. 6. Learned counsel for the appellant has strenuously urged that the court below has not considered any matter raised before him apart from enumerating the pleadings, the contents of the documents and the arguments advanced. The order under appeal does not contain the reasoning on the basis of which the application has been rejected. There appears to be some merit in the argument. Although as many as 11 typed pages have been devoted for disposing of the application, it is a matter of surprise that the court has not devoted even half a page to discuss all the points of dispute involved. It is true that in order to clarify the facts and put the whole case in a proper perspective, it is useful to make a mention to the salient features of the pleadings and the affidavits etc. and also documentary evidence relied upon by the parties, yet it is expected from the courts to devote some time and space in elaborating the reasons which persuade it to take a particular view in the matter. This is necessary so that the appellate court which has occasion to consider the matter in appeal may know as to really what persuaded the court to take a particular view. This aspect, however, need not detain us. The whole crux of the dispute revolves on the interpretation of the terms of the lease. In the preamble of the document, it is disclosed that nearly 2000 sq. yds. land forming part of Bungalow No. 116-D, Chappel Street was let out to the plaintiff after carrying out repairs and reconstruction of the same for a period of five years. The whole crux of the dispute revolves on the interpretation of the terms of the lease. In the preamble of the document, it is disclosed that nearly 2000 sq. yds. land forming part of Bungalow No. 116-D, Chappel Street was let out to the plaintiff after carrying out repairs and reconstruction of the same for a period of five years. In paragraph 3 of the lease deed, there is a mention of a set of Annexe just near the main entrance of the banglow towards its south. It includes one garage and a room for Chaukidar which have been excluded from the Annexe and have been let out to the plaintiff. It also prescribes that the area between the Annexe building and the Chaukidar's room will be exclusively in the use and possession of the owners and the tenant shall have no concern with the same. In para 5 the tenant is forbidden from making any alterations in the building without the consent of the owners. Clause 6 is the most crucial term of the lease deed. It prescribes conditions, both in the negative and in the positive. In the first part it says that the premises leased out shall not be used for certain purposes. It will be better to quote the actual words used in the deed in this regard : "leh ki bungala kisi karkhanedari machine ya motor garage ke kam men nahin laya jayega." 7. Subsequently part deals with the permissive or the positive part of the clause and that portion also may be quoted here ; 'Fariq doyem apni sahuliyat ya marzi ke mutabiq ukt bungale ko istemal karne ka adhikari rahenge." 8. According to the appellant, the premises are not being used for any purpose which has been prohibited under the lease and since he has got every right to use the bungalow according to his wish and convenience, this necessarily implies that the appellant was entitled to use it for the purpose of a marriage house also. Such user is not excluded under the terms of the lease deed. On the other hand, the respondent's learned counsel contended that the word 'Karkhanedari' was a term of wide import and it included 'office' also. Since the plaintiff was using the premises for commercial purposes and was maintaining office in the demised property, it violated the prohibitions contained in the lease. On the other hand, the respondent's learned counsel contended that the word 'Karkhanedari' was a term of wide import and it included 'office' also. Since the plaintiff was using the premises for commercial purposes and was maintaining office in the demised property, it violated the prohibitions contained in the lease. He has in this connection relied upon the Hindi-Urdu Dictionary compiled by the State of U.P. where in the word 'karkhana' has been defined as follows : "Woh sthan jahan cheezen banti hain, Shilpshala. Udyogshala, karya-laya." 9. An almost equivalent word in English is 'workshop.' It is defined in Chambers Twentieth Century Dictionary as "a room or shop where work is done." This word is constituted by two words 'work' and 'shop'. 'Work' is defined in the said Dictionary as an effort directed to an end ; employment, the product of work, any thing made or done while 'shop' has been defined as building or room in which goods are sold ; a place where machines work or where any kind of industry is pursued, a place of employment or activity. 10. Similarly in Corpus Juris Secondum, Volume 80, about the word 'shop', it is mentioned that it appears to have been derived from the old high german word 'Schopf' which means a building without a front wall. According to it, in its popular sense, the term is not confined to a workshop or a store and may include both. Normally it means a place where mechanic carries on his work or a building where artisan carries on his business or labourers, workmen or mechanics, by the use of tools and machinery, manufacture, (sic) or repair articles of trade. Volume 98 of Corpus Juris Secondum defines the word 'work' as having numerous definitions and being susceptible to various meanings but one of its primary meanings signifies an effort directed to an end; exertion or effort both mental and physical directed to an end or any form of physical or mental exertion or both combined, for the attainment of some object other than recreation or amusement. 11. Thus from the above it would be clear that 'karkhanedari' as mentioned in the deed on the face of it can not mean establishment of an office in the building particularly when it is used in the company of the words 'machine' and 'motor garage. 11. Thus from the above it would be clear that 'karkhanedari' as mentioned in the deed on the face of it can not mean establishment of an office in the building particularly when it is used in the company of the words 'machine' and 'motor garage. It appears that the intention of the parties prima facie was that the premises will not be used for running any kind of machine and for doing any mechanical work. However, this is only a prima facie interpretation of the term in the lease deed and such will depend upon the nature of evidence which ultimately the parties lead at the time of the trial of the suit. The opinion that is being expressed here should not, therefore, be taken as blinding on the court when it ultimately determines the rights of the parties while deciding the suit. These are only expressions of the Court's opinion for the prima facie purpose while disposing of the injunction matter. 12. Learned counsel for the respondent gave a lot of stress on the point that the main gate was left for common use by the tenant as well as landlords and for the purposes of the nursery landlord was to provide a a separate entrance. It was urged that this term clearly signifies that the intention of the parties was that the main gate of the bungalow was to be utilised only for the persons residing in the premises and from this it must be assumed that the premises was given only for the residence of the tenant. It is difficult to reach this conclusion after reading the clause in question. If for any reason, the parties decided that the main gate of the bungalow shall be used only by the tenant and the landlords, it can not be spelled out from this that even the visitors coming to meet the tenant were not permitted to use the gate. It will all depend upon the nature of the user to which the tenant puts the premises. For example if the tenant wished to start a Lawyer's chamber or a Doctor's clinic in the premises, it can neither come within the meaning of the term 'karkhanedari' nor could it be said to be prohibited under the terms of the lease deed. For example if the tenant wished to start a Lawyer's chamber or a Doctor's clinic in the premises, it can neither come within the meaning of the term 'karkhanedari' nor could it be said to be prohibited under the terms of the lease deed. For that matter, if the contention of the respondents is to be accepted, even maintaining of the office in the premises was against the provisions of clause 6 and even if the tenant wanted to maintain an office and to carry on correspondence from there in connection with the business even this would be beyond the scope of the purpose for which the lease was granted. This would be taking a drastic view of the matter. At this stage, we have to take into account that a normal person should be having in his contemplation at the time of leasing out the premises at a high rate of Rs. 4,000/- per month. To me it appears that clause 6 of the lease deed merely bars establishment of any such device which created the use of Machinery in any form and for purposes such as workshop etc. The parties perhaps never intended to exclude the user of the premises for a Marriage House. Of course much will depend upon the evidence which is led latter on the suit as to the true intention of the parties in putting up this clause in the lease deed. 13. In case the lease deed permitted the use of the premises for the purpose for which the plaintiff is putting it to, the question arises whether the defendant landlord is entitled to put any impediment in its peaceful enjoyment of the demised premises ? According to Section 108 of the Transfer of Property Act, unless there is a contract to the contrary, every lessor is bound and every lessee is entitled to use the premises in a peaceful manner. The landlord can not interfere in his user of the premises unless in doing so the tenant is committing breach of any other law. It is argued that the premises is a residential one and cannot be put to commercial use and to do so is contrary to the provisions of the Cantonment Act. The landlord can not interfere in his user of the premises unless in doing so the tenant is committing breach of any other law. It is argued that the premises is a residential one and cannot be put to commercial use and to do so is contrary to the provisions of the Cantonment Act. The Cantonment Board is a party and in its objection it has not pleaded that the user to which the premises is being put is against the provisions of the Cantonment Act or any bye-laws or Regulations framed by it. If any such regulation or bye laws is being infringed by the plaintiff, the Cantonment Board would certainly be entitled to take action in accordance with law against the guilty person. Same is the position about violation of any provision pertaining to the Defence Estate Officer, He too is a party but no objection has been taken on his behalf that the use of the premises as a Marriage house contravenes any term of the old grant on which the landlord is entitled to stay on the land. If and when such a situation arises, the Defence Estate Officer will be fully entitled to take such action as the law permits in respect of any violation committed by the tenant. However, the right of the cantonment board or of the defence estate officer to take action does not entitle the land lord to put obstruction in the way of the tenant in the peaceful user of the premises. The allegation made in the plaint and in the affidavit was that the defendant landlord parks the vehicle on the main entrance of the bungalow and causes obstruction in the way and also enters into quarrel with his customers which is disturbing his peaceful enjoyment of the property. Any such act committed by the landlord amounts to obstruction in the peaceful enjoyment of the property and would be contrary to the terms of the lease. Even the landlord having leased out the premises is not entitled to create any obstruction in the peaceful user of the property by the tenant and in case he is permitted to do so, it will result in permitting him to reap double benefit i.e. claim his rent from the tenant and at the same time not to allow the tenant to enjoy the property peacefully. This is not permissible. 14. This is not permissible. 14. Much was then argued on the question of balance of convenience and irreparable injury. It is urged that no irreparable injury is likely to be caused to the plaintiff in the event of refusal of injunction while a lot of injury is likely to be caused to the landlord in case on injunction is granted. What the landlord anticipates is that a large number of marriage parties are being organised in the premises and lot of nuisance is created on account of blaring of loudspeakers, bringing in and taking out furniture and tent material and on account of noise which will be caused on account of large number of people indulging in frivolities when under the influence of liquor. It is said that the landlord is an orthodox Muslim and the ladies of the family observe parda and in case injunction is not refused, they will be constantly exposed to public gaze and will have to suffer the nuisance of noise which is bound to follow. It is urged that this will cause an irreparable injury to the landlords and their family members which cannot be compensated in money. On the other hand, the tenant can be compensated be because he has himself quantified the damages at Rs. 11000/- in one of the notices sent by him, during the pendency of the suit. He has also relied upon a decision of this Court in Smt. Kusum Gupta and others v. Smt. Sarla Devi and others, in which Hon'ble A.N. Verma, J. speaking for the Bench held as under : "The principles governing the grant of temporary injunctions are far to well settled to require any elaboration. To capitulate, these are the existence of (i) a prima facie case and (ii) the balance of convenience in favour of the plaintiff before he can ask for interim injunction. The consideration of the balance of convenience necessarily brings in the concept of irreparable injury. Needless to add that the very first principle on which temporary injunction may be granted is that the court will not grant the same to restrain an actionable wrong for which damages might be the proper remedy. The court has to consider the comparative mischief or inconvenience of both the parties. Needless to add that the very first principle on which temporary injunction may be granted is that the court will not grant the same to restrain an actionable wrong for which damages might be the proper remedy. The court has to consider the comparative mischief or inconvenience of both the parties. In order to succeed the plaintiff must establish that the inconvenience he is likely to suffer by the refusal of the injunction would be greater than that which the defendant would suffer, if it is granted. And the injury which the plaintiff is likely to suffer is unquantifiable, that is, the damages and other forms of security would not furnish an adequate remedy at the end of the trial of the suit." 15. The case cited above emerged from a proceeding in which there was a dispute between the partners regarding partnership assets. The holder of majority share in the partnership in which there were several other partners who had very small share, most of which had been purchased by the holder of majority shares in the partnership except that of the plaintiff. The plaintiff was only a partner to the extent of 5%. After having acquired the shares of remaining partners, the defendants reconstituted the partnership and the new business was started. The plaintiff sought injunction that the defendant may not use the premises and the assets of the dissolved partnership unless final dissolution had taken place. The contention of the defendant was that the firm had already been dissolved and the assets had been distributed. It was under these circumstances that a question came up before the Court for consideration. The facts and circumstances of that case were, therefore, quite different and the said case can be of little help to the respondents. The basic question is can the landlords, after having let out the premises, cause binderances in the way of the tenant in the enjoyment of the property. This would be clearly in breach of the term of the lease deed and once he let out the premises, the landlord has no right to interfere in the ..lawful-use of the premises for purposes not prohibited under the lease deed. This would be clearly in breach of the term of the lease deed and once he let out the premises, the landlord has no right to interfere in the ..lawful-use of the premises for purposes not prohibited under the lease deed. In case the injunction is refused, the result would be that although the tenant will continue to be liable to pay the monthly rent to the landlord, he would not be able to derive any benefit out of the property for he cannot put the same to such use for which he had taken it on lease. Although it is true that in one of the notices after the filing of the suit the tenant has mentioned that he was suffering loss to the tune of Rs. 11,000/- per month, but it does not mean that merely quantifying the damages in the notice, that would become the amount of damages suffered by the plaintiff. In fact that actual loss would be caused to the plaintiff cannot be ascertained. It will depend upon the number of engagements that he would have been able to get for stay of marriage parties or for organising receptions or other purposes connected with Marriage House. It is not necessary that every day throughout the years, the plaintiff may have a booking available with him. It is, therefore, not correct to say that the damages can be quantified with any amount of certainty. Apart from this, marriages are seasonal in nature and only during specified period, of the year, marriages are performed and during the rest of the period, there may not be any booking at all for the building. Thus merely because at one place the plaintiff has quantified the amount of damages, it does not mean that the amount of damages is such which can be quantified with any amount of certainty and, therefore, it must be held that the plaintiff was likely to suffer irreparable injury in the event of injunction being refused. 16 The question of balance of convenience is intimately connected with the present possession. The tenant is in possession no doubt and this goes a long way for establishing that the balance of convenience is in his favour. 17. As for the apprehensions in the mind of the landlord, certain restrictions can always be put on the right of the tenant in the matter of user of the premises. The tenant is in possession no doubt and this goes a long way for establishing that the balance of convenience is in his favour. 17. As for the apprehensions in the mind of the landlord, certain restrictions can always be put on the right of the tenant in the matter of user of the premises. In my opinion, it will serve the purpose of both the sides if it is clarified that no loudspeaker shall be allowed to be used in the premises before 10 o'clock in the morning and after 11 o'clock in the evening during summers and upto 10.00 P. M. during winters i.e. from 1st of November to 31st of March each year. The loading and unloading of furniture in the premises shall not be undertaken between 11.00 P.M. and 10.00 A.M. The ceremonies connected with the marriages and reception etc. should terminate latest by 10.00 P. M. The use of the loudspeaker shall be subject to such restrictions by the District authorities as may be imposed by it. The tenant shall not violate any law, rule or bye-law framed by the local authorities or orders issued by the district authorities and the tenant shall also not violate any term of the old grant on which the land is held by the landlords and he shall also not violate any provision of the Cantonment Act. If he does so, the authorities will be entitled to take such action against him as the law may permit and the landlords shall not be visited with any evil consequences on that account. 18. The appeal is allowed and the order of the court below is set aside. The injunction application shall stand allowed subject to the conditions mentioned above. In the circumstances of the case, there will be no order as to Costs.