Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Wagay vs Yasir Gulzar Bhat on 6 May, 2024
S. No. 17
Supplementary List
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
.FAO No. 12/2024
CM No. 2519/2024
Caveat No. 952/2024
Fayaz Ahmad Wagay
.....Appellant (s)
Through: Mr. G.A. Lone, Advocate
Mr. Mujeeb Andrabi, Advocate.
V/s
Yasir Gulzar Bhat.
..... Respondent(s)
Through: Mr. Mubashir Rabbani, Advocate.
Coram:
Hon'ble Mr. Justice Mohammad Yousuf Wani, Judge.
ORDER
06.05.2024 FAO No. 12/2024:
01. Notice
02. Notice waived by Mr. Mubashir Rabbani, Advocate appearing for the respondent, who is on caveat in respect of the interim application.
Caveat No. 952/2024, CM No. 2519/2024:
03. With the appearance of Mr. Mubashir Rabbani, Advocate appearing for the caveator, the caveat stands discharged.
04. Heard learned counsel for the applicant/appellant, Mr G. A. Lone, Advocate in respect of his prayer for grant of interim relief. Also FAO NO. 12/2024 1|Page heard the learned counsel for the non-applicant/caveator/respondent in rebuttal.
05. Learned counsel for the applicant/appellant submitted that applicant/ appellant has got a strong prime-facie case made out in his favour as is explicit from the memo of appeal and the enclosed documents and as such he has bright chances of his success at the proceedings of the appeal. That the balance of convenience also tilts towards him as he is likely to suffer more comparative hardship than the other side in case of withholding of interim relief and that he shall further suffer an irreparable loss which cannot be compensated in terms of damages in case the operation of the impugned order is not stayed.
06. He contented that the applicant/appellant rented out one hall within his commercial building- a complex named "Faizan Complex" situated at Khanbabal, K.P Road, Ananatnag by virtue of tenancy agreement in favour of the non-applicant/respondent for carrying his business under the name and style of "M/s Power House Gym" the name whereof was subsequently changed to "M/s C-3 Fitness Unisex Gym". That the tenancy was created by virtue of a Rent Agreement executed on 7th of October 2018 and duly registered by Sub-Registrar Anantnag for a period of 5 years with effective from 17.10.2018 on the annual rent of Rs. 1.50 lakhs. That the non-
applicant/respondent took over the possession of the hall and procured the necessary machinery for running his business. That the means of access to the rented premises was an old staircase leading within the building from the FAO NO. 12/2024 2|Page ground floor which was not convenient. That the said staircase was demolished under a mutual understanding between the parties whereafter the applicant/appellant started constructing a new staircase from outside the building. That during the time the construction of new staircase from outside was in progress, notice was received under No. MC/Ang/22/9808-12 dated 8th of October 2022 by the applicant/appellant from the Municipal Council Anantnag whereby he was asked to stop the construction of the staircase having been undertaken without permission. That in addition to the notice issued by Municipal Council Anantnag an ad interim order was also issued by learned Sub-Judge/CJM Anantnag in a Civil suit titled "Mst Sarwa Vs. Fayaz Ahmad Wagay" on 11th of October 2022 directing the maintenance of the status-quo with respect to a part of the complex. According to learned counsel, the staircase could not be completed.
07. It was, also argued by the applicant/ appellant that as per the terms and conditions of the rent deed, the non applicant/ respondent was to refrain from indulging in any illegal, anti-social or immoral activities in the rented premises and upon the report of any such activity, he had to loose the right to hold the possession of the rental hall as a tenant. He further contented that during the currency of the tenancy, it was found that the illegal activities have been taking place within the rented premises including sexual exploitation and use of narcotics, whereupon the notice of eviction was given to the non-applicant/respondent. He further contended that non- applicant/respondent filed a suit before the court of learned District Judge FAO NO. 12/2024 3|Page Anantnag seeking decree for damages to the tune of Rs. 39.00 lacs as also decree for Mandatory Injection commanding the applicant-defendant to construct right to access/staircase from the ground floor to the hall with a further relief of decree of Permanent Prohibitory Injunction for restraining the applicant/defendant from causing any sort of interference in the subject matter. He contented that the learned Principal District Judge Anantnag while disposing of the temporary injunction application filed under the provisions of Order 39 Rules 1 and 2 CPC along with the main suit, allowed the same and has directed the applicant/defendant to construct staircase at the original place for hall within 15 days from the date of passing of order. That the order has also refrained the applicant/appellant from interfering with the suit property rented out to the non-applicant/plaintiff pending disposal of the main suit.
08. Learned counsel for the applicant/appellant further contented that since the period of tenancy which was for a period of 05 years w.e.f 17.10.2018 has terminated/expired on 16th October 2023, as such in view of the provisions of the law especially as contained under Section 111 of the Transfer of Property Act, the order impugned passed by the learned District Judge Anantnag is bad under law because the same is aimed at re- constructing of the staircase so as to allow the non- applicant/respondent/plaintiff to continue the business in the absence of any valid extension of the lease deed. Learned counsel further contented that the order impugned is bad in view of the authoritative law laid down by the FAO NO. 12/2024 4|Page Hon'ble Supreme Court of India in "Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs Dunlop India Limited and Others" AIR 1985, SC 330, to the effect that interim orders granted on mere asking and to the extent of principal relief are bad under law and thus deprecated.
09. Learned counsel for the non-applicant/respondent, however, in his rebuttal while opposing the grant of any interim relief contented that applicant/appellant has demolished the staircase which was the only means of access to the rented premises during night hours whereby the business of the non-applicant/responded has got stopped. He submitted that substantial loss and damage has been caused to the non-applicant/respondent as he is not in a position to conduct his business which he had started after procuring huge machines. He contended that about 206 customers were registered with the non-applicant/ respondent's gym and were coming to the rented premises for gym exercise. Learned counsel while inviting the attention of this Court towards the Section 11 Clause (1) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 submitted that non-applicant /respondent cannot be evicted from the rented premises and applicant/ appellant cannot seek recovery of possession notwithstanding the expiry of the lease. Learned counsel contented that the applicant/appellant has put on halt, the business of the non-applicant/respondents since October 2022, after dismantling the staircase during odd night hours. Learned counsel for the non-applicant/respondent in support of his contentions placed reliance on the authoritative judgments cited as "Hammad Ahmed Vs. Abdul Majeed"
FAO NO. 12/2024 5|Page AIRONLINE 2019, SC 650 and "Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors on 13 February, 1990, 1990 AIR 867
10. While placing reliance on the said authoritative judgement, the learned counsel submitted that no good ground appears to be made out for grant of any relief in favour of the applicant/appellant who has no prime- facie case made out in his favour. He submitted that balance of convenience tilts towards the non-applicant/respondent who has been suffering badly and incurring recurring loss on account of the closure of his rented premises.
11. Impugned in the main appeal is the order dated 25 th April 2024 passed by the Court of learned Principal District Judge Anantnag (hereinafter referred as the Trial Court for short) on the temporary injunction application that came to be filed by the non-applicant/respondent along with the main suit, while disposing of the same. The learned Trial court through the order impugned has directed the applicant/appellant to construct a staircase at the original place for hall within 15 days with further direction to refrain from interfering with the rented premises pending disposal of the main suit.
12. It is admitted by both the parties that the lease agreement in respect of the rented premises was for a period of 5 years w.e.f 17th of October, 2018 as such the lease stood terminated/expired, even on the date of the passing of the impugned order.
13. J&K Houses and Shops Rent Control Act 1966 stands repealed by the J&K Residential and Commercial Tenancy Act 2012. Learned counsel for FAO NO. 12/2024 6|Page both the parties have, however, in equivocal terms informed that the operation of the new Act of 2012 stands stayed by this Court in some cases without being sure and without some proof to that aspect.
14. Be that as it may, Section 11 of the J&K Houses and Shops Rent Control Act 1966 and the Section 21 of J&K Residential and Commercial Tenancy Act, 2012 provide for right of the landlord to seek recovery of possession and ejectment of the tenant inter alia when there are allegations of the use of rented premises for illegal or immoral purposes.
15. Learned counsel for the applicant-appellant during his arguments inter-alia submitted that impugned order tantamounts to forcible extension of the lease agreement which is hit by the provisions of the law as contained under Section 111 of the Transfer of Property Act, Section 11 Clause (1) (e) of Jammu and Kashmir Houses and Shops Rent control Act, 1966 and the Section 21 II (v) of the Residential and Commercial Act 2012.
16. Learned counsel for the applicant/appellant during his arguments submitted that the impugned order ought not to have been passed when the main suit filed by the non-applicant/respondent/plaintiff is for an ascertained sum of money.
17. Learned counsel for the non-applicant/respondent is directed to file his objections within a period of two weeks with a copy in advance to the learned counsel for the applicant/Appellant
18. List on 29.05.2024.
FAO NO. 12/2024 7|Page
19. In the meantime, subject to any vacation or modification upon the consideration of the objections and till next date of hearing before the Bench, operation of impugned Order dated 25th April 2024 passed by learned Trial court shall remain stayed.
(Mohammad Yousuf Wani) Judge SRINAGAR 06.05.2024 Showkat FAO NO. 12/2024 8|Page