Delhi District Court
Sh. Shiv Nandan vs Sh. Tajuddin Khan on 7 April, 2010
IN THE COURT OF MS NIRJA BHATIA, SENIOR CIVIL JUDGE
(EAST), KKD, COURTS, DELHI
Suit No. 668/07
Sh. Shiv Nandan
S/o Late Sh. Bhagwan Swaroop
R/o C102, Mandawali Fazalpur,
Unchepur, Delhi 92 ....... Plaintiff
Versus
Sh. Tajuddin Khan
S/o Mohd. Yaseen Khan
R/o H.No. 246/75, East School Block,
Mandawali Fazalpur, Delhi - 92
Also at
Shop No. 2, C102, Mandawali
Fazalpur, Unchepur, Delhi 92 ......Defendant
Nature of Suit : Suit for Permanent Injunction
Date of Institution : 17/12/2007
Reserved for order : 29/03/2010
Date of Decision : 07/04/2010
JUDGMENT
1. By this judgment, I shall decide the present suit filed by the plaintiff for seeking relief of Permanent Injunction. The facts necessary and relevant for the decision are detailed in the pleadings of the parties wherein it is disclosed that the plaintiff is the landlord / owner of the suit property measuring 100 sq yards bearing no. C102, Mandawali Fazalpur, Unchepar, Delhi 92 whereas defendant is a tenant under the plaintiff in respect of one shop bearing no. 2 under the trade name of 'Taj 668/07 1/11 Automobile'. As per the terms and conditions of the tenancy settled the defendant was inducted @ Rs. 2000/ per month in respect of the suit property vide rent agreement dated 01/04/2002.
2. Plaintiff is stated to have filed one petition for eviction u/sec 14(1)(a) of DRC Act which is claimed to be pending in the court of Sh. Bhupesh Kumar, ARC, KKD Court. As per the terms and conditions settled by virtue of rent agreement it is averred that the defendant is bound in terms of the clause 3 of the agreement to utilize the suit property for the work of automobile and no other work or business in respect of the said property can be run by the defendant which shall be contrary to the provision of clause 3 of the rent agreement.
3. Plaintiff averred that on 8/9/2006 the suit property was sealed by the MCD however later on 10/12/07 the property was ordered to be desealed.
4. It is alleged that now the defendant has disclosed his intention to carry out the business other than that agreed as per the clause 3 of the rent agreement and in such circumstances by way of filing the present suit, it is prayed that decree of injunction in favour of the plaintiff be passed restraining the defendant from carrying out any other business as agreed between the parties
5. WS is filed by the defendant who has alleged that suit itself is devoid of cause of action and is misconceived. While admitting that defendant is tenant in respect of the suit property which was let out for commercial purpose. It is denied that there is any privity of contract between the parties qua use of suit shop.
6. The defendant claimed that subsequent to order of Hon'ble Supreme Court certain businesses are now not permitted to be carried out and have became illegal and in 668/07 2/11 such scenario the change of business shall not take away the right of the tenant in respect of the demised premises. It is averred that even otherwise the suit of the plaintiff is not maintainable as alleged agreement is neither registered nor duly stamped and hence the contents of the same cannot be looked into.
7. While replying on merits it is alleged that agreement dated 01/04/2002 is forged and fabricated agreement and does not bear the signatures of the defendant. It is further averred that defendant had no occasion and / or need to execute the fresh agreement with the wife of plaintiff when the earlier agreement with plaintiff was already in existence It is claimed that in the alleged agreement dated 1/4/2002 the plaintiff has claimed double the rent than what has been agreed between the parties. It is disputed that rate of rent was fixed for Rs. 2000/ per month and in turn it is claimed that parties have mutually agreed for letting out the premises to the defendant @ Rs. 1000/ per month.
8. It is alleged that plaintiff is utilizing all the methods available to get the suit premises vacated from the defendant, and in furtherance of the same, petition for eviction is filed on misconceived and false allegations. While admitting the contents of paragraph 5 of the plaint which is based on clause 3 of the rent agreement prohibiting defendant from carrying out any other business except automobiles, Defendant averred that since the automobile has been declared as illegal trade in the residential area defendant cannot be compelled to pursue the said trade and is forced to change his business. It is claimed that defendant is not intending to change the use of demise premises as his own but has been compelled to do so subsequent to the direction issued by Hon'ble Supreme Court. Defendant 668/07 3/11 further disputed the contentions that he has no legal right to do any other work except what has been mentioned in the rent agreement. It was averred that in the garb of rent agreement subsequent to the direction of Hon'ble Supreme Court, the plaintiff is only pressurizing the defendant to vacate the suit premises.
9. The replication in the present case has not been filed however, following issues were framed vide order dated 24/7/2008.
Issue no. 1: Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP Issue no. 2: Relief
10. Subsequent to framing of issues parties were allowed to lead their respective evidence. Plaintiff appeared in support of his case whereafter evidence was closed. The defendant though filed his affidavit did not come forward for cross examination and vide statement of his counsel dated 14/7/2009 whereby it was stated that defendant is not desirous of leading evidence. DE was closed.
11.Another application u/o 11 rule 1 CPC was moved by the plaintiff on 21/8/2009. The said application is allowed whereafter the defendant was directed to reply to the interrogatries raised. The reply to the interrogatries was filed on 21/12/2009 whereafter the parties were given opportunity to further their submission by way of final arguments. Same were heard. Record is also perused. I now proposed to record my findings issuewise in the following manner.
12.Issue no. 1 and 2: The onus to prove the entitlement for the relief claimed was upon the plaintiff.
While deciding the present issue I am called upon to decide the controversy 668/07 4/11 involving the question as whether one can be compelled by way of injunction to perform an act which is contrary to public policy and is illegal. I am also called upon to decide the premise of individual right in juxtaposition to that of the public rights.
13.The plaintiff in the present suit by claiming the relief of injunction has actually intended to seek enforcement of provision of clause 3 of agreement dated 01/04/2002. The relevant clause is reproduced below.
"That the tenant shall utilize the tenanted premises (shop) for his commercial purpose (Automobiles) and not for any other purpose".
14.At the time of letting out the premises the business mentioned in the present agreement had not been opposed by virtue of any provision however admittedly later on the above preposition of law has been deviated. The same is also shown from the provision 15 of The Gazette of India: (Extraordinary) wherein it is prescribed as follow : The following activities shall not be allowed under Mixed Use:
a) Retail shops of building materials (timber, timber products (excluding furniture) marble, iron and steel, (gravel, cement and sand2), firewood, coal and any fire hazardous and other bulky materials.
b) Repair shops / workshops of automobiles, tyre resoling and retreading, and battery charging.
c) Storage, godown and warehousing
d)Junk shop (except paper and glass water)
e) Liquor shop 668/07 5/11
f) Printing, dyeing and varnishing
g) Any other activity that may be notified from time to time by Government.
15.After this enactment and judicial pronouncement and the direction made by Hon'ble Supreme Court the repair work of automobile is no more permitted in retail shop. This preposition is not denied and disputed by the plaintiff. In such circumstances, the question for decision is whether such an agreement can be enforced ? The answer to this in my view is negative. In reaching the above conclusion I am guided by 1992 civil CC 34 judgment as Gurmukh Singh Vs. Amar Singh (SC) wherein it is prescribed.
"Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent, or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful".
It is further defined as the word "object"would mean purpose or design which is object of the contract, if it is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under Section 23 of the Contract Act. It is further held that section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it.
Meaning of public policy is also defined to be imposing certain limitations upon freedom of contract which are forbidden or discouraged by law. It is held in the 668/07 6/11 above judgment that though all other requisites for the formation of contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it.
16.In Sreenivasa Rao v. Korrapati Raja Rama Mohana Rao, AIR 1952 Mad. 579 while considering the word "object" in section 23 of the Contract Act it was held as under: The scope of public policy can be classified into five groups as are detailed Chitty on Contract which is as under: "Objects which on grounds of public policy invalidate contracts may, for convenience, be generally classified into five groups; first, objects which are illegal by common law or by legislation; secondly, objects injurious to good Government either in the field of domestic or foreign affairs; thirdly, objects which interfere with the proper working of the machinery of justice; fourthly, objects injuries to marriage and morality; and, fifthly, objects economically against the public interest.
17.Halsbury's Laws of England also describes that any agreement which tends to be injurious to the public or against the public good is invalidated on the grounds of public policy. It is further described that the question whether a particular agreement is contrary to public policy is a question of law , to be determined like any other by the proper application of prior decisions.
18.Thereafter various instances of agreement opposed to public policy as an agreement to influence authorities to obtain favourable verdict was held to be 668/07 7/11 opposed to public policy and void under section 23 have been discussed. The Hon'ble court also approved the decision of the A.P. High Court in Rattanchand Hirachand v. Askar Nawaj Jung, AIR 1976 AP 112.
19.In the judgment of Central Inland Water Transport Corporation Ltd v. Brojo Nath Ganguly, (1986)3 SCC 156 . The reasonableness and fairness of a clause in a contract was held to be essential circumstance. The court also recognized inequality of bargaining power. It was reiterated in the above judgment that the court will not enforce and will when called upon to do so strike down an unfair and reasonable clause or clauses in contract.
20.On the basis of the above discussion and looking into the provision of Section 23 of Contract Act which is reproduced below: What considerations and objects are lawful, and what not The consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such a nature that , if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
21.And in view of the enactment carried out by way of prohibiting the repair of automobile in retail shop. I am of the view that clause 3 of the agreement dated 668/07 8/11 01/04/2002 being opposed to public policy cannot be sought to be enforced and defendant cannot be compelled by way of decree of injunction to perform an act contrary to public policy. It be further observed that no Individual right could be ascertained higher then public interest. In the background of this also the plaintiff cannot seek enforcement in respect of the agreement which is opposed to public interest as is illegal.
22. It be observed that suit of the plaintiff is based upon the agreement dated 01/04/2002. Admittedly the rent agreement is executed by the wife of the plaintiff namely Smt Kamlesh. In the present suit, the plaintiff had made no effort to implead her as necessary party as subsequent to the execution of above agreement. It is the wife of the plaintiff who is landlady qua suit property against the defendant. The plaintiff subsequent to making execution of above agreement is no more enjoying the status as that of landlord qua defendant and on this ground also the the suit of the plaintiff is hit by the provision of order 1 CPC and the suit is bad on account of non joinder of the necessary party. In view of the judgment of Dr. K.A. Paul Vs. K. Natwar Singh & Others 2009(161) DLT 698 the suit is not maintainable.
23. An application u/o 39 rule 1 and 2 CPC of the plaintiff in the present suit has been dismissed by my Ld. Predecessor. While rejecting the application for interim relief an observation qua the conduct of plaintiff was made. It was observed that the plaintiff conceal the material fact from the court by concealing the earlier agreement dated 26/12/1998. The provision of Specific Relief Act u/sec 41 is reproduced herein below: 668/07 9/11 Injunction when refused - An injunction cannot be granted 41 (i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court.
24. Restrict the plaintiff or his agent on account of their conduct and held himself entitled to relief of injunction. It be observed that at no stage in the plaint, the plaintiff disclosed that the relationship between the party had flown from an agreement dated 26/12/1998. By virtue of which defendant gained a right in the demised property coupled with possession. It has not been disclosed that by virtue of said agreement the parties have agreed to fix the rent @ Rs. 1000/. The plaintiff took an U turn and by concealing the above fact claimed the source of defendant's possession in the suit premises by agreement dated 01/04/2002. Apparently, the earlier agreement dated 26/12/1998 imparted right in favour of the defendant to retain possession as tenant uptill 01/01/2003. The circumstances under which the agreement dated 01/04/2002 (on which the present suit is based) is extended prior to even the expiry of earlier agreement is thus surrounded by clouds of doubt. The above fact reveal the effort of plaintiff to conceal some material facts then to come forward with unclean hand by seeking relief of "equitable' nature. It is settled preposition that one who seeks equity must also do equity. It is also settled by Plethora of judgments, that party approaching the court with unclean hand shall not be entertained and their suit must be thrown out. In the plethora of judgment, the judgement of Hon'ble Supreme Court came upon heavily on the conduct of unscrupulous litigant and guided the court below to deal with such litigant strictly. 668/07 10/11 In the present circumstance, I am of the view that the plaintiff has disentitled himself to seek relief prayed for . The suit of the plaintiff deserves to be dismissed and is accordingly dismissed . File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (NIRJA BHATIA)
ON 7/4/2010 SR. CIVIL JUDGE (EAST)
KKD COURTS, DELHI
668/07 11/11
668/07 12/11
668/07 13/11