Delhi High Court
Veena Kohli vs Rawal Apartments Pvt. Ltd. on 22 January, 1998
Equivalent citations: 71(1998)DLT489, 1998(44)DRJ589, (1998)118PLR76
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
1. This application (IA No. 12210/96) under Order 39 Rules 1 and 2 CPC is filed by the plaintiff seeking temporary mandatory injunction and prohibitory order against the defendant.
2. The plaintiff has filed a suit for mandatory and prohibitory injunctions on the allegations that the plaintiff as Sole Proprietor of M/s. Kohli Graphic Systems is a tenant at lower ground floor of property No. M-3, Middle Circle, Connaught Circus, New Delhi of the defendant. The premises were taken on lease by virtue of lease deed dated June 10, 1983 on a monthly rent of Rs. 15337.17 P. for commercial purposes and throughout she has been using the premises for commercial purposes for her business. In terms of lease it has been renewed in 1986, 1989, 1992 and 1995 every time with increase of rent by 20% and the present rent, is Rs. 31,181.06 P. Plaintiff was also provided toilet on the ground floor shown as mark 'T' in the plan filed with the plaint which has been in her use and occupation from the very beginning as part of her tenancy and she has incurred expenditure for its renovation also. Since December, 1995 the defendant has been demanding a further enhancement in the rent first @ Rs. 50 per Sq. Ft. per month and then vide another letter dated February 29, 96 @ Rs. 100 Sq. Ft. per month. This demand was unlawful and was not acceded to by her. With a view to force the plaintiff to leave the premises the defendant started harassing her and suddenly oh November 8, 1996 the defendant broke open the lock of the aforesaid toilet, removed its door and demolished its bathroom fittings and then closed it by brick wall for which a FIR was lodged with the police but to no effect. The plaintiff and her employees which include lady employees have been deprived of the toilet facility. This toilet is absolutely necessary for the use of the premises. The plaintiff has prayed for mandatory injunction to remove the wall unauthorisedly erected at the entrance of the toilet and to restore it to its original state and also a permanent prohibitory injunction restraining the defendant from interfering with or obstructing plaintiffs possession, use and occupation to the said toilet. Defendant has filed written statement and reply to the application and has contested the suit and the application. It is admitted that the plaintiff was inducted as a tenant on the basement "floor. However, it is alleged that the premises were let out for storage purposes and not for use for commercial purposes and according to the sanctioned plan also the premises can be used for storage as a godown. It is not disputed that lease deed executed on 10.6.83 provided renewals and was renewed at enhanced rent. As regards the use of the toilet it is alleged that the plaintiff was never provided any toilet by the defendant and the plaintiff has been using the premises only for storage purposes, and she and her employees have been using public toilet in front of the premises or of the tenant on the first floor. It is alleged that there was a shaft which was misused as a toilet and it was cause of nuisance and was closed in October, 1996; that shaft cannot be used as a toilet. It is denied that defendant had broken open the lock of the said toilet on 8.11.96 or any fittings had been provided there. It is thus denied that the plaintiff was either provided with a toilet or she is entitled to the use of any toilet facility.
3. Learned counsel for the plaintiff has contended that the use of the premises for commercial purposes has been specifically agreed in the lease deed and the premises has always been used for commercial purposes and it is also clear from the material on record that the plaintiff had also been provided and was throughout in use and enjoyment of toilet facility which was also absolutely necessary as the plaintiff is a lady and has also other lady employees, that a toilet existed at the disputed place is also shown in the photographs filed by her; use and existence of this toilet has also not been specifically denied by the defendant. This action of defendant is mala fide as they wanted to increase the rent which was not agreed to by the plaintiff and as a coercive measure the defendant has adopted this course. This toilet and two other toilets exist on the ground floor and nobody has raised any objection that these are not according to sanctioned building plans; a prima facie case is made out and great hardship is being caused to the plaintiff by depriving the use of the toilet and in these circumstances an interim mandatory injunction is most appropriate remedy. He has relied on Magnum Films and Anr. v. Golcha Properties Pvt. Ltd. AIR 1983 Delhi 392, Baldev Raj v. Smt. Savitri Bai 1982 Delhi NOC, 49, Sanjai Kumar Singh and Anr. v. Vice-Chancellor, Purvanchal University, Jaunpur and Ors. , Goverdhan Singh v. Mulkh Rai and Anr. AIR 1973 J & K 63, Baban Narayan Landge v. Mahadu Bhikaji Tonchar and Ors. and Dorab Cawasji Warden v. Coomi Sorab Warden .
4. Whereas learned counsel for the defendant has contended that the circumstances do not warrant grant of interim mandatory or prohibitory injunction. He has also contended that no toilet existed as per sanctioned building plan nor was provided by the defendant as the premises were let out only for storage purposes and plaintiff is not entitled for any toilet facility, the tenancy of the plaintiff has been since terminated and as such also she is not entitled to temporary injunction. He has relied on C.K. Dass and Anr., v. Amar Nath Khanna 34 ( 1988) DLT (SN) 55, Nilesh Narayanrao Mikhar v. Ramdas Bapurao Ghude AIR 1987 Bom 279, Nandan Pictures Ltd. v. Art Pictures Ltd. and Ors. , Durg Transport Co. Pvt. Ltd., Durg v. Regional Transport Authority, Raipur and Ors. , Magnum Films and Anr. v. Golcha Properties Pvt. Ltd. AIR 1983 Del 392, D.T.T.D.C. v. D.R. Mehra & Sons , The University of Bihar and Anr. v. Rajendra Singh , Mohinder Singh v. Dharamvir Radhesham 1981 RLR N 56. and Essex Farms Pvt. Ltd. and Anr. v. Delhi Transport Corporation 62(1995) DLT 474.
5. Each case will depend on its own facts and circumstances. That the plaintiff is a tenant and a lease deed dated 10th June, 1983 was executed between the parties is not in dispute. The dispute between the parties however is about the purpose for which the premises were let. According to the defendant it was let out for storage purpose and for that toilet was not required nor was given; whereas according to the plaintiff the premises was let out alongwith toilet facility "for commercial purpose and related business activities" and the plaintiff has been carrying on business with employees working there.
6. According to the lease deed the premises let out comprised of basement of property measuring 1582.86 sq. ft. for the purpose of "commercial purpose and for carrying out other activities relating to the business of the lessee". Also by Clauses (1), (2), (5), (6) and (9) of the covenants to be observed by the plaintiffs/lessee, the lessee was required :
(1) to pay charges for electricity, power and light;
(2) the lessee was given the premises with electrical and other fittings and fixtures in good tenantable order and conditions;
(5) the lessee was to maintain all these electrical fittings/connection in working order;
(6) the lessee could erect temporary partitions for making cabins or false ceiling and install unit air conditioners; and (9) the lessee was to share the scavenging tax.
7. These conditions indicate that the premises provided with electrical Fittings, electricity and power was provided to the plaintiff, plaintiff could make partitions for cabins, lay false ceiling in the premises and instal air conditioners etc. apart from specifically agreeing that the premises are let for commercial purpose and for carrying out other activities relating to the business of the lessee. The plaintiff was also liable to share scavenging tax. These installations and amenities would be required if the premises are intended to be used for business or office purpose and not for use as go-down for storage purpose.
8. The plaintiff in para 5 of the plaint has alleged that on taking the premises she found that there was no toilet attached to the premises and without a toilet, the premises would have been of no use and she would not have taken the lease. On this defendant informed her that a toilet (mark 'T') on ground floor had been provided for her and the defendant had handed over the possession of the said toilet for her use as concurrent use with the lease of the premises. In para 6 of the plaint the plaintiff has further alleged that the toilet has been in her continuous and un-interrupted use since then and she has maintained the said toilet and kept it in good repairs and clean and hygienic and it has been in her possession under her lock and key and she also allowed its use to M/s. Trade Wings, another occupant of the basement floor. In para 7 of the plaint, it is further pleaded that the plaintiff had spent considerable amounts of money, in installing various fittings including cistern, basin, pipes etc. The defendant in corresponding para 5 of the written statement has vaguely/evasively denied that no toilet was provided nor that the toilet as claimed did not exist and in para 6 of the written statement it is alleged that there was a shaft of 4' x 4' which was being misused as a toilet by every Tom, Dick and Harry without their permission which caused nuisance on the ground floor and the said shaft was closed in October, 1996. In para 7 of the written statement it is alleged that the wash basin and cistern put in the shaft were demolished being illegal and in violation of sanctioned plan and caused nuisance on the ground floor. In reply to para 15 of the plaint, that the defendant broke open the plaintiffs lock on the said toilet, removed the doors of the said toilet, and demolished the bathroom fittings installed therein including basin, floor pipes and partition, it is not disputed that toilet fittings existed at the place. However, it is pleaded that the plaintiff has been using the municipal toilet in front of the building or the toilet in the flat of a friend Mr. Om Arora on the first floor. If the premises were let out for storage purposes only there would have been no occasion for the plaintiff or her employees to have used the toilet on the first floor or the municipal toilet "always". Plaintiff has placed on record some photographs of the toilet alleged to be in her possession. Two of the photographs show that there is a toilet cistern with its fittings fixed with the wall having bath tiles, two showing wooden door frame fixed at its entrance indicating that the door leaves have been removed and one showing closed door, one showing wall closing that door opening. Apparently, it also shows that this place was being used as a toilet and obviously by the plaintiff as claimed by her. On filing of these photographs, the defendant was given opportunity to file affidavit explaining these photographs. In affidavit dated 17.12.97 filed by the Managing Director of the defendant, no explanation has been given about the situation depicted in these photographs and it is not denied that there was a toilet as shown in these photographs or it was not used by the plaintiff. Liability to share scavenging tax would have arisen if toilet facility is provided. The material on record prima facie show that the premises were let out to the plaintiff for being used for commercial purpose, with electricity/power connection as part of the tenancy alongwith a toilet on the ground floor for the exclusive use of the plaintiff and her staff.
9. Defendant has admitted that this toilet was closed in October, 1996 which according to the plaintiff was closed in November, 1996 and she had made a complaint to the local police on 8.11.96. Present suit was filed on 4.12.1997, obviously without unnecessary delay.
10. Toilet is an essential amenity and is necessary for the enjoyment of the tenanted premises. It would cause extreme hardship to the lessee especially for the plaintiff who is a lady and her lady employees if toilet facility is withdrawn. It will be unjust and unfair to deprive the plaintiff of the amenity enjoyed by her for the last almost 15 years on the spacious ground that it is not permissible under building bye-laws. It is not disputed that there are two more toilets on the ground floor which are also not sanctioned under those bye-laws. Municipal authorities have obviously not taken any objection for such a long time.
11. Power of the court to grant temporary injunction in the form of a mandatory injunction has been considered by the Supreme Court recently in the case of Dorab Cawasji Warden v. Coomi Sorab Warden . After referring to the English law including law from Halsbury's, the American law and also the Indian case law broad guidelines/principles have been summarised in paras 14 and 15 as under :-
"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief. And in para 15 it is observed as under :-
15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
12. Under Section 105 of the Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or sub-tenant is entitled to remain in possession thereof until the lease is duly terminated and eviction takes place in accordance with law. (Jaswant singh Mathura singh and Anr. v. Ahmedabad Municipal Corporation and Ors. (1992) Supp (1) SCC, 5).
13. For that reason plaintiff could also not be deprived of this facility except in due course of law being part of the tenancy.
14. On her part the plaintiff has given four enhancements @ 20% on last enhanced rent in 1986, 1989, 1992 and 1995 and thereby rent has been increased from Rs. 15037.17P to Rs. 31,181.06P in compliance of the terms agreed in the initial lease and it is not the case of the defendant that the plaintiff was a defaulter. She has alleged that this action of defendant is malafide and motivated as they wanted to increase rent @ Rs. 100/- per Sq. Ft. which was not acceptable to her.
15. In the circumstances, it is necessary to prevent irreparable and serious injury which could not be compensated in money. The plaintiff has made a strong prima facie case. Balance of convenience lies in favour of the plaintiff.
16. This application is accordingly allowed. The defendant is hereby ordered by means of a mandatory ad interim injunction to restore the toilet 'T' or provide another exclusive toilet to the plaintiff within two days, failing which the plaintiff will be entitled to remove the obstruction caused to her in the use of the toilet 'T' at the cost and expenses of the defendant. Plaintiff shall be entitled to adjust such expenses from the rent payable by her.
17. Till toilet 'T' is so restored, the plaintiff shall be entitled to use any of two other toilets 'A' and 'B' available on the ground floor of this property.
18. Nothing stated herein shall be taken as expression of opinion on the merit during trial.
19. Cost of this application shall be costs in the suit.