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2000 DIGILAW 1046 (DEL)

LALA SOHAN LAL GUPTA v. T. R. ENTERPRISES

2000-12-04

DEVENDER GUPTA, MUKUL MUDGAL

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Devinder Gupta ( 1 ) BY the first application (CM. 457/2000), the plaintiffs/ appellants have prayed for an injunction against the defendants/respondents from making any further addition to property No. M-132, Connaughtcircus, New Delhi or from creating any third party interest including sub-letting of the main premises, as described in the lease deed dated 26. 11. 1980 and also in the mezzanine. ( 2 ) BY the second application (C. M. 481 /2000), defendants/respondents 1,2 and 4 to 7 have prayed for vacation and/or modification of theex-parte order, which was granted by us on 8. 9. 2000. ( 3 ) WE have heard learned Counsel for the parties and been taken through the entire record. ( 4 ) THE plaintiffs/appellants have filed appeal against the judgment and decree passed by learned Single Judge on 6. 7. 1999 dismissing their suit. Appeal was admitted for hearing on 8. 9. 2000. By ex-parte ad-interim order of injunction, the respondents were restrained from making any further additions or alterations to property No. M-132, Connaught Circus, New Delhi and from creating any third party interest in the main premises, as defined in the lease deed dated 26. 11. 1980 namely, M-132, situated on the second floor of the building known as "ramkishan Dass Sitaram Building" comprising five rooms alongwith latrine, bath, store and kitchen as well as in the mezzanine. ( 5 ) THE plaintiffs in the suit had alleged that the defendants had unauthorisedly added a mezzanine. In addition to praying for a decree for injunction restraining the defendants from carrying on any further additions and alterations to the premises, which had been let out on the basis of a registered lease deed a decree for mandatory injunction was also prayed directing the defendants to demolish and remove the unauthorised construction (mezzanine), to restore the building to the same position in which it was let out and restraining the defendants from letting out the unauthorised construction to anyone and also to seal the entire leased out portion. ( 6 ) ADMITTEDLY, the mezzanine floor does not find mention in the registered lease deed, which has clearly described the leased out premises as No. M-132 comprising five rooms alongwith latrine, bath room, store and kitchen in property known as "ramkishan Dass Sitaram Buildings" situated at Plot No. 3, M-Block, Connaught Place, New Delhi. ( 6 ) ADMITTEDLY, the mezzanine floor does not find mention in the registered lease deed, which has clearly described the leased out premises as No. M-132 comprising five rooms alongwith latrine, bath room, store and kitchen in property known as "ramkishan Dass Sitaram Buildings" situated at Plot No. 3, M-Block, Connaught Place, New Delhi. By the said lease, the lessees were given right to sublet the premises for office purposes/residences or for the use of guest house to anyone else, in whole or part, on such terms and conditions as the lessee may deem fit and proper and retain to himself all the benefits accruing therefrom. Lessees were also permitted to have one more right to change the sub-tenants in case the subtenants do not suit them. It also provided that right of sub-letting or giving the same on further licence or assignment is subject to special condition that lessee will pay the rent at the agreed rate without any objection or dispute and in case any objection or dispute is raised at any time that the same is not fair and standard rent, the right to sub-let the premises shall cease automatically and the sub-tenants would become the tenants of the lessors. The lease prohibits the lessees from making any structural alterations or additions or modifications to the leased out portion. The plaintiffs in the plaint alleged violation of the terms of lease that without the plaintiffs concurrence and knowledge the lessee had carried out additions to the lease premises for which they had no right. Suit was contested by the defendants. Initially learned Single judge had granted injunction against the defendants, which later on was modified. After trial the suit was dismissed against which the appeal is pending. As noticed above, while admitting appeal ex-parte ad-interim order of injunction was granted. ( 7 ) LEARNED Counsel for the respondents vehemently contended that there is material on record that mezzanine existed prior to letting out the premises to the respondents for which the defendants/respondents produced enough material on the suit record from the record of New Delhi Municipal Committee, which would lead to an inference that no unauthorised additions were made by the lessee. Learned Counsel for the defendants/respondents, however, urged and prayed that for the time being the lessees were seeking modification to the order dated 8. 9. Learned Counsel for the defendants/respondents, however, urged and prayed that for the time being the lessees were seeking modification to the order dated 8. 9. 2000 that no restraint be put on lessees with respect to the portion, which had been described in the lease. The order of which modification is sought takes away the right of the lessees to sub-let even the leased premises. He further urged that the lessees have no objection in continuing with the remaining part of the order of restraint which pertain to the mezzanine portion. It was contended that lease specifically authorised the lessees to sub-let the premises and by me ex-parte order restraint has been put on the respondents which has the effect of preventing the lessees from making profitable use of the property. To the prayer of the lessees there is a strong opposition on behalf of the plaintiffs/appellants. Not only in the reply filed to the said application but also during the course of arguments learned Counsel for the plaintiffs/appellants referred to various documents on record that not only the lessees had already exercised the right to sub-let the lease premises twice but also on the ground that the lessees by their conduct had forfeited the right to sub-let the leased portion. It is alleged that the moment proceedings for fixation of fair rent were initiated in the year 1982 the said right stood extinguished. ( 8 ) IN view of the limited prayer for vacation/modification of the ex-parte ad- interim order of injunction, we have to confine ourselves only to that portion which has been mentioned in the registered lease deed. It is not disputed by the respondents that proceedings for fixation of fair rent were taken out. It is also not disputed that the plaintiffs did allege even before learned Single Judge that the lessees had already exhausted the right of sub-letting the premises when it was alleged that the earlier sub-tenants namely, Delhi Commercial Builders Pvt. Ltd. ; Bhikshu Enterprises and Hem Chand Industries after they had vacated the premises were replaced by M/s. R. P. Apartments Pvt. Ltd. and M/s. Jaina Properties Pvt. Ltd. It was the version of the respondents that the same were sister-concerns of the respondents. May be that after the first sub-occupants vacated, the other occupants who were allowed to make use of the property by the lessees were the sister- concerns but prima facie we are of the view that the lessees cannot at this stage be permitted to urge and assert the right of further sub-letting, in view of the positive act of having taken out proceedings for fixation of fair rent. Prima facie, we are of the view that no case has been made out for modification of the order and there is also no ground to vacate the ex-parte ad-interim order of injunction, which was granted by us on 8. 9. 2000. There is no restraint put on the lessee to make use of the premises itself. The only restraint is on parting with premises or creating third party interest. We are of the view that during the pendency of the appeal, the order passed on 8. 9. 2000 deserves to be confirmed. Ordered accordingly. It is made clear that the observations made by us are not merits but are only for the purpose of disposing of these two applications and will not prejudice either of the parties in making their submissions in appeal on merits. ( 9 ) CONSEQUENTLY C. M. 457/2000 is allowed and C. M. 481 /2000 is dismissed. Order dated 6. 9. 2000 is made absolute for the duration of appeal.