Delhi High Court
Peter George vs Janak J. Gandhi on 9 January, 1996
Equivalent citations: 1996(36)DRJ248, 1996RLR112
Author: M.J. Rao
Bench: M.J. Rao
JUDGMENT Anil Dev Singh, J.
(1) ADMIT.
(2) This appeal is directed against the order of the learned Single Judge dated September 7, 1995, in I.A. No. 494/93 in Suit No. 176/93. By that order the learned Single Judge declined to pass an ad interim order restraining the defendants-respondents from interfering with the construction on the terrace of the ground floor of the premises, namely, B-3, Geetanjali Enclave, New Delhi. The brief facts giving rise to the appeal are as under:
(3) The appellants are the landlords of B-3, Geetanjali Enclave, New Delhi. The premises consist of basement, ground floor, garage and a servant quarter. The appellants entered into lease agreements with respondents I and 2. By virtue of lease deed dated June 27, 1990, the appellants leased basement and garage to the second respondent at a rental of Rs.l3,970.00 per month. By another lease agreement dated June 7, 1990, the appellants leased the ground floor and servant quarter to the first respondent at a rental, of Rs.l7,330.00 per month. However, according to the stand of the respondents, agreements were executed by respondents I and 2 on behalf of respondents 3 and 4. According to the lease deeds the concerned respondents were to provide free entry to the appellants for the purpose of construction above the ground floor of the demised premises. This is as per clause Ii in the lease agreements which "cads as under:- "The second party has agreed to provide a free entry to the first party, its representatives, assigns or workmen to construct the further floors above the ground floor of the premises by the first party whenever required."
(4) The further case of the appellants is that they are doctors who had returned from abroad and wanted these premises for their own use. Accordingly, by letter dated November 28, 1992, they called upon the respondents to vacate the premises and in any event to permit them access in the premises for raising construction above the ground floor. On the failure of the respondents to accede to the request of the appellants, the latter Filed a suit, inter alia, claiming a decree for permanent injunction restraining the respondents from interfering with the construction of further floors on the property in question. Along with the suit, the appellants moved an application under Order 39 Rules 1 and 2 being I.A. No. 494/93 for ad interim injunction against the respondents restraining them from interfering with the construction over the suit premises. The learned Single Judge by order dated September 7, 1995, rejected the prayer of the appellants and dismissed the application. The learned Single Judge was of the opinion that by allowing the application he would in fact be allowing plaintiffs' suit without trial. He also observed that interim reliefs are granted only for the purpose of and for duration of the proceedings of the suit and to maintain status quo as regards the disputed property. The learned Single Judge noticed that the lease deeds which were for period of three years were not registered and, therefore, should only be looked to ascertain the nature and character of the respondents' possession.
(5) We have heard the learned counsel for the parties. Learned counsel for the appellants submitted that the respondents did not claim terrace of the ground floor to be in their occupation or a part of their tenancy. He also submitted that the appellants have a right to construct upon their premises, and the tenants cannot create obstructions in exercise of that right. Besides, it was canvassed that the period of leases have already expired.
(6) On the other hand, learned senior counsel for the respondents submitted that the learned Single Judge was right in rejecting the prayer of the appellants for ad interim injunction as grant of the same would have amounted to granting the reliefs in the suit. He also adverted to the fact that the lease deeds were not registered and, therefore, could not be looked into except for the collateral purpose of finding out the nature and character of the defendants' possession. Learned counsel further submitted that the terrace of the premises was part of the tenancy of the respondents.
(7) We have considered the submissions of the learned counsel for the parties. It cannot be disputed, at this stage, that the respondents were not in occupation of the terrace. The learned Single Judge has also noted that the respondents were not in the occupation of the terrace. In this regard it will be advantageous to extract the observations of the learned Single Judge :- "In case the lease deeds can be looked into for collateral purposes to find out and ascertain the nature and character of the defendants possession, undoubtedly terrace on the ground floor cannot be considered to be apart and parcel of the tenancy since no right over the terrace under any of the terms of the lease was given to the defendants. They are also not in occupation of the terrace as per the pleadings on record."
(8) If the terrace was not part of the tenancy of the respondents, then the respondents cannot with any semblance of justification interfere with the construction on the terrace of the appellants. They have not been able to show any restrictive covenant in this regard. Even if lease deeds are not registered, undisputedly they can be looked into for the purpose of finding out and ascertaining the nature and character of the defendants' possession. As per the lease deeds, while respondent No.1 is the tenant of the basement and garage, respondent No.2 is the tenant of the ground floor and the servant quarter. Thus, respondents I and 2 are holding the basement, garage, ground floor and the servant quarter of the property as tenants thereof. No other portion of the property is mentioned in the lease deeds. Contrary to this position it is, however, claimed in the written statement by the respondents that the terrace over the ground floor is deemed to have been let out to the respondents. We, however, fail to see how the terrace can be said to have been let out to the respondents by a deeming Fiction. It is significant to note that the respondents have not claimed letting out of the terrace to them by any express word and/or deed of the apellants. Respondents have not been able to give any good or sufficient reason as to how they are entitled to interfere with the construction on the terrace by the appellants. The appellants are the owners. Respondents have no lease in their favour in respect of the terrace. Even the lease for the ground floor, basement, garage has expired. The owners who were living abroad want to improve the property by making construction on the terrace. They being the owners, do have a right to construct and the tenants of the ground floor, basement and garage have prima facie no legal right to obstruct. Construction cost will increase and surely the appellants cannot be asked to wait till the respondents are evicted from the rest of the property.
(9) In these circumstances we are prima facie of the opinion that the respondents are not entitled to interfere in the construction over the terrace. We are also of the opinion that in a proper case, where justice demands, the court can grant an interlocutory injunction to the same effect to which a permanent injunction is sought in the suit. (Please see Mrs. Amarjit Kaur Sandhu Sandhu and others v. M/s. Malabar Cane Furniture, Sector 22-B, Chandigarh, 1979 (1) Rlr 732).
(10) Therefore, we set aside the order of the learned Single Judge dated September 7, 1995, and grant an ad interim injunction restraining the respondents from interfering with the construction by the appellants over the terrace of the demised premises. However, in the event of the suit being dismissed, the appellants would be bound to demolish the construction. The appellants would furnish an undertaking in this regard to the satisfaction of the Registrar of this Court within two weeks. It is also clarified that this order will not be construed as a permission to raise construction on the terrace floor which is not authorised by the local authority or for which there is no sanctioned plan. No costs.