Calcutta High Court
Board Of Acting Governor Of The La ... vs National Engineering Industries Ltd. ... on 13 August, 2002
Equivalent citations: 2005(2)CHN207
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT Asok Kumar Ganguly, J.
1. This appeal is from an order dated 14.06.2002, passed by the learned Single Judge on a contested hearing and whereby the learned Single Judge was pleased to reject the injunction order continuing in favour of the petitioners/plaintiffs, the appellants before us.
2. The matter has been argued at length and all the papers before the learned Single Judge were included in the stay petition and the same was treated as informal Paper Book. This Court, with the consent of parties, heard both the appeal and the application together.
3. The facts which are material for this case are as follows:
By a registered deed of lease dated 21.01.1998, the petitioner No. 1 demised in favour of the respondent No. 1 a portion of the premises being 11, Dr. U.N. Brahmachari Street, Kolkata comprising office space Nos. 6, 7 and 7A on the 6th and 7th floor, super-built area of 22,722 sq.ft. of the said premises for an unexpired term of 99 years with the agreement commencing from 01.09.1993 and expiring on 31.08.2092.
4. The dispute in this case between the parties arose out of the following covenants in the Lease Deed. Those covenants are set out below:
"Clause 2.5.2. Not to carry on any obnoxious, injurious, noisy, offensive, illegal or immoral activity in the said Units.
Clause 2.5.3. Not to cause any nuisance or annoyance to the co-lessees and/ or occupants of other portions of the building.
Clause 2.5.4. Not to use or allow use of the said Units for purposes other than for quiet and decent office purposes and in particular not to use the same for any residential, hotel, nursing home, boarding house manufacturing or processing workshop etc. Clause 2.5.6. Not to do anything whereby the other, co-lessees are obstructed in or prevented from quiet enjoyment exclusively of their respective units and jointly of the common parts."
5. Out of those covenants particular emphasis has been given to the restrictive covenant in Clause 2.5.4.
6. The petitioners further alleged that by a letter dated 01.08.2001, the respondent No. 1 informed the petitioner No. 1 that it was in the process of assigning its lease-hold interest in respect of the office space No. 7A on the 7th floor of the said premises in favour of the respondent No. 2, a deemed University, for its proposed Computer Training Institute. The said notice was given by the respondent No. 1 to the petitioner No. 1 in terms of Clause 2.6.1. of the said Lease Deed dated 21.01.1998 (hereinafter referred to as the said 'Lease Deed').
7. The petitioners through their advocate's letter dated 19.09.2001 protested and pointed out that the proposed user of the premises will be in contravention of Clause 2.5.4 of the lease deed and called upon the respondent No. 1 to desist them from creating any assignment of their lease-hold interest in the said premises in favour of respondent No. 2 for establishing the Computer Training Centre.
8. The further case of the petitioners is that they came across an advertisement issued by respondent No. 2, in the newspaper and it appears from the said advertisement that the said respondent No. 2 was going to set up an Educational Centre on the 7th floor of the said premises for conducting its Three-year Degree Course in Bachelor of Computer Application.
9. Seeing the said advertisement, the petitioners filed a suit being C. S. No. 471 of 2001 in this Court for restraining the respondent No. 1 from subletting Unit 7A of the 7th floor of the said premises to the respondent No. 2 for setting up the Computer Training Centre. Initially, an order of injunction was issued by a learned Judge of this Court, but, on the returnable date, it was submitted on behalf of the respondents that the respondent No. 1 did not intend to sub-let a portion of the said premises in favour of the respondent No. 2 but, it was in the process assigning its lease-hold right for the remaining years of lease tenure in respect of space being No. 7A on the 7th floor having super-built area of 13,860 sq.ft. and 4 of Car Parking spaces in the basement of the said premises in favour of the respondent No. 2. Recording the aforesaid facts, the interim order was vacated on 18th September, 2001 by a learned Judge of this Court without observing anything on the merits of the case of the parties.
10. Then another interim order on contest was issued on 09.12.2001 by a learned Single Judge and the same was vacated by the judgment under appeal,
11. The learned Counsel for the petitioner submits that from the information brochure circulated by the respondent No. 2 and subsequent information it appears that a Computer Training Programme for full time Three-year Degree Bachelor Course and a part time Master Degree Course by respondent No. 2, a deemed University will be started. There will be regular classes for theory as well as laboratories and sessional at the 7th floor of the said premises and admission would be available to the students who have completed Class XII and the maximum age limit of such students is 21 years. It also appears that there will be about 180 students in the First Year. Similarly, 180 students in the Second Year and 180 students in the Third Year and totalling about 540 students are expected to join the said course. There will be two semesters in each year and the said Computer Institution is proposed to run in two shifts from 8-00 hrs. to 13-50 hrs. and then again from 14-00 hrs. to 19-50 hrs. It also appears that there will be three classes of 50 minutes duration simultaneously and every day, there will be about 42 classes and the number of students would be divided into three sections. Therefore, there will be about 60 students in each section.
12. The learned Counsel for the petitioners also submitted that after the order under appeal was passed by the learned Single Judge there has been an insertion in the 'Ananda Bazar Patrika' which would show that there will also be master degree courses for computer. Relying on these materials, the learned Counsel for the petitioners submits that the restrictive covenant contained in Clause 2.5.4. of the said Lease Deed will be violated if a school is allowed to come up on the seventh floor in the demised premises. Since this is a violation of the negative covenant, this Court should grant an order of injunction enforcing the negative covenant.
13. In this matter, the learned Counsel for the respondent Nos. 3 and 4 also appeared. The learned Counsel for the respondent No. 3 submits that the respondent No. 3 is the developer and from the development agreement dated 12.09.1986, it is clear between the owner and the developer that the building shall be constructed only for commercial purposes (other than shops) and such building will be utilised only for commercial purposes. The learned Counsel also submitted that in accordance with the development agreement accepted and approved by the Hon'ble Supreme Court, the building was constructed only for the commercial purposes (other than shops) and accordingly, a sanctioned plan of the said building was also obtained under Sections 392, 393, 395 and 396 of the Kolkata Municipal Corporation Act as a business building.
14. It was also stated in the said affidavit that the use of the 7th floor space being the Office Space No. 7A for the purpose of running a college is not the use of the building for a decent office purpose as was intended by the agreement between the parties. It has also been stated that the design, layout and the structural organisation of the building was made keeping in mind that the same would be exclusively used for a quiet and decent office purpose. The respondent No. 3 thus virtually supported the case of the petitioners. The learned Counsel also referred to Clause 'n' of the development agreement and stated that in the said agreement, it has been made clear that the developer and the lessee will be entitled to sub-lease the developer's areas and the super-built area only for commercial purposes to reputed Public Undertakings, Public Companies, Public Sector Institutions, Foreign Companies Consulate or the Government Organisations.
15. The learned Counsel for the respondent Nos. 1 and 2 submitted that in the instant case, the cause of action of the petitioner is based on a mere negative covenant without any interest in the land. In other words, the learned Counsel submitted that the covenantee does not retain any land and is not enjoying any interest in the land. The learned Counsel also submitted that in the instant case, there is no pleading in the plaint or in the injunction petition that restrictive covenant has been granted for the benefit of any land held by the lessee. In fact, the entire portion of the land has been leased out.
16. Therefore, such a covenant does not run with the land. It is merely a covenant relating to lessee's right of user of the property and the lease is for 99 years. The learned Counsel further submitted that the entire lease is to be construed as a whole and if so construed, the covenant on which the petitioners are relying is one for the protection of the other tenant of the building and co-lessees. The learned Counsel further submitted that the Supreme Court allowed the lease to be granted for commercial purposes without a shop and the proposed assignment of lease-hold right by respondent No. 1 in favour of the respondent No. 2 is for the purpose of starting a computer training centre, which is certainly not a shop and is coming within the commercial purpose as approved by the Supreme Court. The learned Counsel further submitted that looking at Clauses 2, 5, 4, in the lease deed, it is clear that what is prevented is right occupancy and the expression 'office purpose' would mean commercial purpose and the words 'decent' and 'quiet' are only relevant in the context of a complain relating to nuisance. In the case of nuisance there cannot be any quatimet action. About the allegations of breach of municipal regulations urged by the learned Counsel for the petitioner, it was pointed out that the point has been taken before this Court of appeal for the first time that if for using the building for establishing a computer training centre, any permission is required to be taken by the petitioner No. 2, such permission will be taken. But the petitioners are not adjoining owners and have no right or cause of action to complain of violation of municipal law unless, as a result of such violation, there is an invasion of their right. In support of this contention, the learned Counsel for the respondents relied on the decision of Calcutta High Court in the case of K.S. Properties Ltd. v. Namdang Tea Co. Ltd., . The learned Counsel also submitted that in the instant case, the petitioner has an alternative remedy of forfeiture of lease in case of breach by the respondent No. 1 or his assignee namely, respondent No. 2, and the right of eviction against the respondents in the event of any breach of the covenant in the lease. Therefore, an injunction should not be granted in view of Section 41(h) of Specific Relief Act, 1963 (hereinafter called S.R.A.).
17. So the learned Single Judge by refusing injunction on that ground has not committed any error and in this case, the learned Single Judge has used his discretion, which is not wholly illegal, so the Appeal Court should not interfere with the same.
18. In reply to the aforesaid argument, the learned Counsel for the petitioner argued that petitioner has retained all the rights of reversion as a lessor and is receiving rent from the lessee so he retains his interest in the land. As the owner of the land under the lease the petitioner has given certain benefits to the respondents to use the land in a particular way. The learned Counsel further submitted that in the case of lease, the restrictive covenant, on the use of the land runs with the land and referred to Section 40 of the Transfer of Property Act. It was also submitted that no prejudice would be caused to the lessee if he does not make the proposed assignment. In fact, the lessee has taken the lease more than six and half years back but then suddenly he has come up with the idea of proposed assignment but nowhere in his pleading it has been stated that prejudice if any which would be suffered by the lessee if the proposed assignment doe's not take place.
19. The learned Single Judge in his judgment noted the case and contentions of the rival parties. After that, the learned Judge considered the common sense meaning of the word office and referred to Webster's Encyclopaedic Unabridged Dictionary in which by 'office' is meant "a room, set of rooms or building where the business of a commercial or industrial organisation or of a professional person is conducted". After quoting the aforesaid meaning of the word 'office' from the dictionary, the learned Judge relied on the decision of the Hon'ble Supreme Court in the case of Bangalore Water Supply, .
20. It is common ground that before the learned Single Judge neither of the parties referred to the said judgment of the Hon'ble Supreme Court. However, the learned Single Judge held that since the Hon'ble Supreme Court in Bangalore Water Supply found that an educational institution is an industry, therefore, the place where such activities are conducted has to be treated as an office. This is one of the reasons why the learned Single Judge refused to grant injunction. The other reason which weighed with the learned Judge was the provision under Article 19(1)(g) of the Constitution of India. Under the said article all citizens have the right to practise any profession, or to carry on any occupation, trade or business. The learned Judge after considering the provisions of Article 19(1)(g) of the Constitution referred to the decision of the Supreme Court in the case of Unikrishnan, . It is also common ground that before the learned Single Judge none of the parties relied on the said judgment in the case of Unikrishnan (supra).
21. The learned Single Judge also relied on the definition of business in Section 2(b) of Indian Partnership Act, 1932. Therefore, relying on the provision of Article 19(1)(g) of the Constitution of India and the judgment delivered by Justice Mohan in the case of Unikrishnan and the definition of the word 'business' under the Indian Partnership Act, the learned Judge held that any educational activity undertaken by the respondent No. 2 falls within the category of occupation which is a variant of the word 'business'. Therefore, the learned Judge held that educational activity is not excluded under the deed of lease. The learned Judge also held that there exists two organisations in the same building carrying on business under the name and style of School Net and A-1 Computer. The learned Single Judge, of course, noted the fact that in respect of such schools no classes are held and no student visits those centres. But the learned Judge held since educational activity is not excluded under the deed of lease, the only question to be considered is the question of nuisance and annoyance by the presence of about 600 students in one floor which is about 13000 sq.ft. The learned Single Judge held that presence of 600 students in an area covering 13000 sq.ft. would mean that more or less about 25 sq.ft. per student would be available. So there will be no congestion. The learned Judge also held that the proposed computer training centre is to impart higher education to students who were already educated and it is not a case of imparting education to immature children. The learned Judge also held that in view of the provision under Section 41(h) of S.R.A. an injunction could be refused where there is an equally efficacious remedy and in the instant case, change of user is actionable to the lessor for the purpose of forfeiting the lease. Since the said remedy is available no injunction could be granted in view of the provision under Section 41(h) of S.R.A. For the aforesaid reasons the learned Judge refused to grant the injunction.
22. When the matter was argued before us in appeal in some details, it was argued on a slightly different plane. Before the learned Judge the argument proceeded on the basis that the running of a computer training school does not bring about any broach of negative covenant and the learned Single Judge upheld that contention. Of course, argument on Section 41(h) of the S.R.A. was also made before us.
23. The main argument before this Court was whether the covenant of restrictive user of the demised premises was a covenant touching or concerning the land or a personal and collateral covenant. It was also argued that assuming it is a restrictive covenant running with the land, the right of the lessor on reversion cannot be so affected as to make out a prima facie case in which the balance of convenience is in favour of granting an injunction. It has also been urged that assuming it is a case of the breach of the covenant of restrictive user, then it is open to the lessor to give notice to the lessee to remedy the breach so committed within a period of three months and on the lessee's failing to remedy the breach within that period, the lessor can determine the lease and re-enter the units held by the lessee.
24. There is no doubt that the covenant in question in this case is a restrictive one about the user of the land. But the dispute is whether such a covenant touches the land and is one which is running with the land. Here admittedly the petitioners as the owner and the lessor have title to the land and are admittedly interested in the land and the building. In the instant case, the proposed assignee namely, the respondent No. 2 is taking the assignment with notice of the restrictive covenant and as such, is bound in equity to observe the covenant which is restrictive in nature.
25. Reference in this connection may be made to the statement of law in Foa's General Law of Landlord and Tenant, 8th Edition. In Article 655 page 422 of that edition, the learned author stated the principle very clearly that covenants of lease are of two kinds -- those which touch and concern the thing demised, normally referred to as "running with the land'. The learned author says that such covenants also run with the reversion. The other kind of covenants are those which are merely personal to the covenantor and usually referred to as "collateral". But the learned author further clarified by saying "as a general principle a covenant ought to run with land, if it is of such a nature that it directly affects the use of the demised premises in a manner which the lessor chooses to assume will be beneficial to him". Going by this proposition, this Court finds that it is clear that the restrictive covenant, in the instant case, is one which directly affects the use of the demised premises in a manner which the lessors choose will be beneficial to them. Therefore, the restrictive user of the demised premises for a quiet and decent office purpose is certainly a covenant running with the land and in para 667 of the said treatise the learned author says that by reason of the equitable doctrine of notice the assignee is also bound and in all cases the burden of restrictive covenant is an "equitable interest in the land, inhering in and annexed to the land", [page 431 of Foa, 8th Edition].
26. The aforesaid proposition in Foa has been fully approved by Justice Ashutosh Mookerjee speaking for the Division Bench of Calcutta High Court in the case of Saradakripa Lala v. Bipin Chandra Pal, reported in AIR 1923 Calcutta 679 (see page 680 of the report). Similar principles have been laid down in Hill & Redman's Law of Landlord and Tenant, [16th Edition Butter-worths Article 465 page 588], The learned author stated "Whether a covenant runs with the land at law or not, and whether there has been a legal assignment of the term or not, every person who takes the premises with notice, actual or constructive, of covenants or stipulations affecting the property is bound in the equity to observe them so far as they are of a negative nature and he will be restrained by an injunction from a breach of them". The learned authors have elaborated the doctrine further by holding that a legal assignee may be bound in equity to observe a negative covenant even if it is merely collateral and does not run with the land at law.
27. The aforesaid statement of law in Hill and Redman clearly supports the petitioners' case for injunction.
28. Attention of this Court has also been drawn to the statement of law on this point on Woodfall's Law of Landlord and Tenant, 28th Edition, Sweet & Maxwell, Vol. 1. The learned author quoting from the old decision in Tulk v. Moxhay, reported in 1848(2) Ph 774 stated the principle that "the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased". Here, of course, no sale has taken place but the same principle applies in the case of lease. The learned author extended the same principle by saying that lessor's reversion is an interest in land to which the benefit of a restrictive covenant is annexed in equity, [see page 462, para 1-11321.
29. Attention of this Court has also been drawn to Law of Real Property, by Sir Robert Megarry and Sir William Wade (6th Edition, Sweet & Maxwell). At page 1012 Section 2 of the treatise, the law of restrictive covenants has been dealt with in some detail and the learned authors stated that Tulk v. Moxhay, decided in 1848 by Lord Chancellor Cottenham laid down the first foundation of the modern doctrine of restrictive covenant. The learned authors observed that the decision in Tulk v. Moxhay invented a new interest in land (page 1013). Dealing with the covenants in lease in para 16-045, Page 1019, the learned authors held that the doctrine of Tulk v. Moxhay applies equally to covenants contained in the leases and the learned authors further stated that the interest of reversion is sufficient to enable a lessor to sue a sub-lessee in equity on a restrictive covenant contained in the lease. In such a case, there is no need for any other land which could be called a dominant tenement. It is well known that the question of dominant tenement and servient tenement is relevant in the context of easement right. The same principles also appear to have been stated in Cheshire and Burn's Modern Law on Real Property, 16th Edition, Butterworths. At page 477 of the book the learned authors made the position clear by saying if the covenant lays down something which is to be done or is not to be done upon the land, that is perhaps the clear way of describing the test whether the covenant affects the landlord in his normal capacity as landlord or the tenant in his normal capacity as the tenant. Such a covenant may be said to touch and concern the land.
30. Therefore, going by the aforesaid tests, it is clear that the restrictive covenant, in the instant case, is one which affects the land and is running with the land and also binds the respondent No. 2 the proposed assignee with notice.
31. Apart from the statement of law in Megarry and Wade referred to above, that the doctrine in Tulk v. Moxhay also applies between the lessor and lessee is also clear from the decision of the Court of Appeal in the case of Regent Oil Company Limited v. J.A. Gregory (Hatch End) Ltd., reported in 1966(1) Chancery Division 402. At page 433 of the report, Justice Harman observes that between landlord and tenant, the covenant will run while the lease subsists (page 433 of the report).
32. The principles in Tulk v. Moxhay may be considered in some detail. The facts of that case were that in 1808 the plaintiff, being the owner in fee of a vacant piece of ground in Leicester Square, London, sold the said piece of ground by the description of Leicester Square Garden or pleasure ground to one Elms in fee. The deed of conveyance contained a covenant by Elms, for himself, his heirs and assigns with the plaintiff, his heirs, executors and administrators, that Elms, his heirs, assignees would from time to time at his costs and charges maintain the said piece of ground at Leicester Square Garden and iron railing around the same in its form and in sufficient and proper repair, as a square garden and pleasure ground and uncovered with any building, in neat and ornamental order. It shall be lawful for the inhabitants of Leicester Square, the tenants for the plaintiff, on payment of a reasonable rent for the same to have keys at their own expense and the privilege of admission also into the said square garden.
33. The piece of land which was conveyed with the aforesaid covenant into the hands of the defendant was sold to his vendor without any similar covenant. But the vendor admitted that it had purchased with notice of the covenant in the deed of 1808. The defendant expressed an intention to alter the character of the square garden and to build upon it. The plaintiff who remained the owner of several houses in the square sued the defendants for injunction and injunction was granted by the Master of the Rolls restraining the defendant from converting or using the piece of ground and square garden for any purpose other than as a square garden. The defendant then appealed for the discharge of the order of the injunction.
34. Dismissing the appeal, Lord Cottenham, the Lord Chancellor held that in a case like this the question is not whether the covenant is one which runs with the land but the question is whether the party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased. Lord Chancellor held that in such a case the question does not depend upon whether or not the covenant runs with the land. Even if there is a mere agreement and no covenant, the Court would enforce it against a party purchasing it with notice of the covenant. As such the injunction granted by the Master of the Rolls was maintained and the appeal was dismissed.
35. It is well-settled that the aforesaid doctrine applies to leases. On the aforesaid principles, it is clear that the lessee or his assignee cannot disregard with the restrictive covenant about the use of the land. The petitioners in the instant case, have right not only in equity but also at law, in view of the Section 42 of S.R.A., to enforce restrictive covenant by way of injunction. Therefore, this Court is of the view, with utmost respect to the learned Single Judge that His Lordship misconstrued this legal position by vacating the order of injunction.
36. Reference in this connection was made to the Division Bench judgment of Patna High Court in the case of Jagadish Chandra v. Md. Bukhtiyar Shah, . The learned Judges held, and if I may say so, rightly, that the doctrine in Tulk v. Moxhay applies only to restrictive covenant and not to an affirmative one. So the ratio in Jagadish Chandra has no application here.
37. The learned Counsel for the respondents relied on the judgment in the case of London County Council v. Allen and Ors., reported in 1914(3) Kings Bench 642 in support of the contentions that in this case the restrictive covenant does not run with the land.
38. In the London County Council case, the facts were that owners of certain lands in the County of London applied to the London County Council for their sanction for laying out a new street on the land. The Council agreed to give sanction on the condition that the owner was to enter into a covenant not to build on the plot which lay across the end of the proposed street so that the street could be continued in future. The owners executed a deed to that effect of not to build on the land without the plaintiff's consent. The plaintiff Council, however, did not possess nor were they interested in any neighbouring land for the benefit of which covenant was imposed. It was admitted before the Court that the covenant did not run with the land at law. The owner then sold the plot to the defendant with notice of the covenant. The defendant proceeded to build house on the land without the plaintiff's consent.
39. On those facts the Court held that the plaintiffs were not entitled to enforce the covenant. The learned Judges held that if the vendor had retained no land which could be protected by the restrictive covenant, the basis of the reasoning in Tulk v. Moxhay was swept away.
40. But in the instant case, the factual situation is different. Here the petitioners as reversioners retain their interest in the land. Therefore, the restrictive covenant in the lease deed is applicable and enforceable. It has already been discussed that the doctrine of Tulk v. Moxhay is extended to lease. Therefore, the ratio in the case of County Council does not hold good in this case.
41. The expression 'covenant running with the land' originates from English Law of real property and is an exception to the general rule that covenants are personal in nature. In India, this doctrine has been assimilated and recognised in Section 40 of Transfer of Property Act. In our country, the same law still holds the field. But in England the Landlord and Tenant (Covenants) Act, 1995, coming into effect on January 1, 1996 has radically changed the law in respect of covenants in leases. As a result of the 1995 Act in England the principles of privity of contract and privity of estate no longer apply. The 1995 Act provides for the automatic running of all landlord and tenant covenants, unless they are expressed to be personal in nature; [see Cheshire & Burn's Modern Law of Real Property, 16th Edition, page 491-492].
42. The learned Counsel for the respondents, however, supported the judgment of the learned Single Judge by first submitting that a lease deed has to be construed if possible, against the lessor. In support of this contention the learned Counsel relied on the decision in the case of Sahebzada Mohammad Kamgarh Shah v. Jagdish Chandra Deo Dhabal Deb and Ors., . The learned Counsel relied on para 13 at page 957 of the report for the proposition that if the parties have first expressed themselves in one way and then go on saying something which is not reconcilable with what has gone before, the Court has evolved the principle that what has been granted cannot be taken away. If there is any ambiguity in the deed, it is the duty of the Court to look at all parts of the document to ascertain what is really intended by the parties.
43. It was a case of a mining lease. In that case there were two leases. The question was whether by the latter lease in 1919, the lessor gave the lessee mining rights in respect of certain minerals not granted by the earlier lease. In the context of those facts, the learned Judges laid down the aforesaid principle.
44. In the instant case, those principles have no application inasmuch as there is no dispute about the purport of the restrictive covenant in the lease deed. If the lease deed is taken as a whole even then the restrictive covenant about the user of the property, cannot be wished away. One thing has to be kept in mind that the Court cannot, by an interpretative process, bring about a meaning which was not intended by the parties. In this case, the bargain between the parties is very clear and the Court cannot, in the name of interpretation, alter the terms. So the ratio in Sahebzada Mohammad (supra) has no application here.
45. The next point urged by the learned Counsel for the respondent is that imparting education is a business whether it is carried on for profit or not. In support of that proposition, the learned Counsel relied on the decision in the case of South West Suburban Water Co. v. Guardians of the Poor of St. Marylebone, reported in 1904(2) Kings Bench 174. In that case, dispute arose over supply of water for domestic purposes. The defendants, the occupiers of the school within the district, claimed that they were entitled to supply of water for domestic purposes inasmuch as the school was considered a dwelling house within the meaning of Water Works Clauses and it was held that though business may be carried on in the schools, the defendants were entitled to supply of water for domestic purposes provided the defendants comply with the reasonable regulation for supply of water. It is, therefore, clear that the points at issue in the Suburban Water Company's case were totally different from the points which are at issue in this case. Even if it is assumed that running a school amounts to running a business, that does not permit the user of the lease-hold the premises, for the purpose of establishing a computer training centre with about 550 students on the 7th floor of the demised premises, when the restrictive user of the premises makes it clear that it can only be used for a quiet and decent office purpose. It may be true that a school may have an office. If the actual running of the school takes place elsewhere and its office is situated on the 7th floor of the demised premises there will be no breach of the covenant. But the actual school is proposed to run with students, teachers, parents, guardians running into more than 600 people on the 7th floor of the demised premises by a deemed university. This would constitute a prima facie breach of the restrictive covenant in the lease deed.
46. The learned Counsel for the respondents also relied on the decision in the case of Real Brook Ltd. v. Minister of Housing and Local Government and Anr., reported in 1967(1) All ER 262. In that case ratio in the case of South West Suburban Water Co, was reiterated. The learned Single Judge, with respect, also fell into the error by holding that since a school has been held to be an industry in Bangalore Water Supply the educational institution proposed to run on the 7th floor of the demised premises is an industry and business and the use of the said floor by establishing the educational institution is an use for a decent and quiet office purpose. But one does not necessarily flow from the other.
47. In this case the Court is considering a private contract of lease between the parties who agreed to restrict the use of the premises and limit it to certain specified purpose. Such a lease on private property cannot be construed on the basis of the concept of industry under Industrial Disputes Act which is a social welfare legislation. Nor can the concept of business or trade under Article 19 of the Constitution of India or the idea of education upto 14 years of age being part of fundamental right as held in the case of Unnikrishnan, can throw any light on the controversy in this case. The decisions in Bangalore Water Supply and Unnikrishnan being rendered in the public law field are not remotely relevant in the context of private law relationship between lessor and lessee and the restrictive user of the lease-hold property.
48. Similarly the examples of School Net or A-1 Computers referred to in the judgment of the learned Single Judge as evidence of educational centres running in the said building is not prima facie correct on facts. Neither in A-1 Computers nor in School Net any teaching takes place. Students do not come there to take classes. School Net, a financing company, set up their office for providing E Solution services through their internet. A-1 Computers sell computers from their office and occupy only 450 square feet on the ground floor with its outlet on the main street. So the establishment of these institutions are not comparable with the proposed Computer Training Centre at the 7th floor of the demised premises on more than 13000 square feet.
49. The learned Counsel submitted that at the most the case of the petitioner is of nuisance. But in the instant case, no case of actionable nuisance has been made out by the petitioner entitling him to grant of an interim order.
50. The learned Counsel further submitted that even if there is any case of nuisance, no quiatimet injunction can be granted in this case. The learned Counsel cited two decisions on this point. The first one was rendered in the case of Cooper v. Crabtree, reported in 19 Chancery Division 193. In that case, the facts were that the plaintiff, the owner in fee of a cottage alleged that the defendant as owner of some adjoining lands erected on the plaintiff's land a hoarding on poles in order to block out the access of light to a window in the cottage and in so doing the defendant committed a trespass. It was also alleged that the poles and the hoarding produced a constant creaking noise and, thus, caused nuisance to him and his tenants. The plaintiff claimed an injunction to restrain the trespass and the nuisance. At the trial, it was proved that the cottage was in the occupation of weekly tenant of the plaintiff who was not impleaded and there was evidence that the poles and hoarding might cause nuisance to the tenant and his family but there was no evidence of any diminishing of the value of or other injury to the reversioner. It was also held that the poles and the hoarding were not structures of a permanent character to cause any injury to reversion and in the absence of any injury, the plaintiff could not maintain the action.
51. In that case, it was held by Justice Fry that entitling a reversioner to maintain action on a case against a stranger, he must allege and prove some actual injury to his reversionary interest. The learned Judge also held that in case of a temporary injury, 'to the grass of the land', action could not be maintained for trespass. The learned Judge also held at page 198 of the Report, that there has been no evidence of any actual damage to the reversion. But in the instant case, the facts are totally different. First of all, it is not an action against a stranger. The action is against the lessee and its proposed assignee with notice of the restrictive covenant. Apart from that, the injury complained of is not trivial or temporary in nature. As a result of running of a regular College with about 540 students, and a good number of teachers on the 7th floor of the demised premises, violating the restrictive covenant is neither a trivial nor a temporary injury. In view of these prominent features in this case, the decision in Cooper v. Crabtree does not hold good at all.
52. The next decision relied on was in the same case which was approved by the Appeal Court reported in 20 Chancery Division page 589. In the Appeal Court, Jessel, Master of the Rolls, approved the judgment of Justice Fry in Cooper.
53. The learned Counsel also relied on Clerk and Lindsell on Torts, 17th Edition for contending that only a person in possession and occupation of the land affected can sue in case of private nuisance. The learned Counsel further submitted that since the petitioners are not co-lessees, they cannot sue. It has already been pointed out that the petitioners are not suing on the ground of nuisance alone. Their main case is based on the restrictive covenant which runs with the land. Further, in the same book, it has been pointed out in page 911 against Articles 18-41 that reversioner can sue for injury done to the reversion. But the injury must be of a permanent nature and not a temporary one. What is permanent injury has also been explained as follows:
"Such as will continue indefinitely unless something is done to remove it. Thus, a building which infringes ancient lights is permanent within the rule, for, though it can be removed before the reversion falls into possession, still it will continue until it be removed. On the other hand, a noisy trade, and the exercise of an alleged right of way, are not in their nature permanent within the rule, for they cease of themselves, unless there be someone to continue them."
54. From the 18th Edition of Clerk and Lindsell on Torts, it appears that quiatimet injunction can be granted in a case where the possibility of damage is very high or is imminent. It has been explained further that by word 'imminent' was meant was that injunction must not be granted prematurely and there must be a real possibility of damage (see page 1644 Article 30-15).
55. Therefore, in a case like the present one where the respondents have already issued advertisement in the newspapers for admission of students, quiatimet injunction can be granted.
56. On the aspect of nuisance, the learned Counsel for the respondents, strongly relied on a decision in the case of Harrison v. Good, reported in Law Reports 11 Equity, 338 also reported in 1861-73 All England Reports (Reprint) 813. In that case, the land was sold in lots with covenants with vendor not to do anything in the premises which would or might be a nuisance to the vendor or his tenants or occupiers for the time being of the adjoining property. Subsequently, one 'G' purchased the property with notice and offered the plots to a school committee as a site for a parochial school. The owner of the adjoining plots sought to enforce the covenant by injunction. The learned Judge, Vice-Chancellor Bacon held that the building of a school is no nuisance in itself. Even if it is a nuisance, the violation is so slight and unsubstantial, the 'plaintiff could have no proper reason in conscience to complain of it, the Court will grant no injunction'. In that case, the restrictive covenant was not specifically worded as to the use of the premises. The covenant in Harrison v. Good was worded as follows:
"......shall not do, or suffer to be done on the ground anything which, will be a nuisance to Henry Samuel Eyre Esq or any of his tenants, or the occupiers of the adjoining property."
57. In the instant case, the restrictive covenant as pointed out is specifically worded. Apart from that, in the instant case, the school is sought to be set up on the 7th floor of the lease-hold premises itself and not in any adjoining premises. Therefore, the facts of the present case are substantially different.
58. Apart from that, the said decision in the case of Harrison v. Good has been subsequently doubted and questioned by the Court of Appeal. In the case of Tod-Heatley v. Benham, reported in the Law Times Vol. LX 241, Lord Justice Cotton by referring to the decision in Harrison v. Good stated that His Lordship does not either approve or disapprove the said decision (page 243). Lord Justice Lindley held that Vice-Chancellor Bacon has put too restrictive interpretation on the word 'nuisance' in the covenant. At page 244 of the report, the Appeal Court held as under:
"When Bacon, V.C. held, as he did, in Harrison v. Good, that the word 'nuisance' in the covenant meant only that which would be a legal nuisance without the covenant, I doubt whether he gave sufficient weight to the consideration that the whole object of having a covenant as to nuisance is to give the covenantee some protection in addition to what he would otherwise have had. I am not by any means sure that the Vice-Chancellor did not put on the word 'nuisance' in that covenant too restrictive an interpretation."
59. Lord Justice Bowen entirely agreed with the Lord Justice Lindley. In view of this judgment of the Court of Appeal, the decision in Harrison v. Good loses much of its value as a precedent.
60. In Halsbury, 4th Edition, Vol. 27, in its commentary on Harrison v. Good, it has been remarked that Harrison v. Good was doubted in Tod-Heatley, (see page 243, headnote 2).
61. The learned Counsel also relied on a recent decision in Hunter and Ors. v. Canary Wharf Ltd., reported in 1997(2) All. E.R. 426 in which the House of Lords held that a person was free to build on his own land unrestricted by the fact that the presence of his building interfere with his neighbours' enjoyment of land. The learned Judges held that in the absence of an easement, mere presence of a neighbouring building do not give rise to an actionable private nuisance. The principles on this aspect have been stated at page 432 of the report in the judgment of Lord Goff of Chievelcy and is quoted below:
"As Lindley LJ said in Chastey v. Ackland, 1895(2) Ch 389 at 402 (a case concerned with interference with the flow of air):
'.....speaking generally, apart from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of air is not actionable as a nuisance.' From this it follows that, in the absence of an easement, more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance."
62. In the instant case, there is an agreement with restrictive covenant. Therefore, the principles in the case of Hunter are to be considered keeping in view that fact. An agreement with a restrictive covenant with notice makes all the difference and is a much stronger ground than an easement.
63. It has been urged on behalf of the respondents that since there is an equally efficacious remedy available, the plaintiff's prayer for injunction in view of Section 41(h) of S.R.A., cannot be granted.
64. It has also been urged that Clause 7 of the lease deed gives the lessor a right to give notice to the lessee in case of any breach of the covenants in the lease and upon getting such notice the lessee has a right to remedy the breach within three months and if the breach is not closed, the lessor has a remedy of forfeiture and re-entry in the particular units of the lease where such breach takes place.
65. It is not possible for this Court to accept either of the aforesaid contentions.
66. In the instant case, a notice was given on behalf of the lessor by their advocate on 19th September, 2001 in which the respondent No. 1, the lessee was asked not to allow the demised premises to be used for the purpose of computer training classes. The said notice was given specifically mentioning Clauses 2, 5, 4, of the lease agreement. As such, the lessee was called upon 'to desist from creating any purported assignment' of the lease-hold right in the said premises in favour of the respondent No. 2. The said letter was not replied by the respondent No. 1.
67. Therefore, ignoring the said letter, the respondents went on taking steps for establishment of the computer training centre and published various advertisements in the newspaper for the establishment of such centre. In fact, at the close of argument an advertisement dated 2nd July, 2002 was shown to the Court. The same was published in the newspaper by the respondent No. 2. It would show that respondent No. 2 was going on with its attempt to set up a computer training centre on the 7th floor of the demised premises and for the said purpose was seeking to select candidates on the basis of written test on 11th August, 2002 and it further appears that the interview of the eligible candidates will take place on 3rd/4th week of August, 2002. Therefore, the respondents, despite the notice, have not remedied the breach.
68. Now, the question is whether in view of the provisions of Section 41(h) of the SRA, the petitioners' prayer for injunction should be refused since the petitioners can obtain the relief of forfeiture of the lease and eviction of the respondents.
69. It is well-settled whether or not any remedy is an equally efficacious relief like the one which has been prayed for is a question, which has to be decided in the facts and circumstances of individual case. In the instant case, the petitioners are seeking enforcement of the restrictive covenant in the lease deed. They are not seeking an eviction of the lessee. Under Section 42 of SRA it is provided where a contract comprises an affirmative covenant coupled with a negative covenant, the fact that the Court cannot enforce the affirmative covenant shall not preclude the Court from granting an injunction to enforce the performance of the negative covenant. This is clearly the right of the petitioner at law. Therefore, in a case where there is a contract containing restrictive covenants, the Court shall restrain the breach of the restrictive covenants. This proposition of law is rather well-settled.
70. In the instant case, the Court cannot hold that the petitioners must suffer the breach and allow the respondents to go on violating the restrictive covenant and refuse injunction because ultimately the petitioners may evict the respondents. If this interpretation is given to the express restrictive covenant in the lease deed, then the principle of granting injunction will virtually become a dead letter.
71. In this connection reference may be made to the Full Bench decision in the case of Municipal Committee, Montogomery v. Master Sant Singh, reported in AIR 1940 Lahore 377. The provision of Section 56 of S.R.A. 1877 came up for consideration. Section 41(f) of S.R.A. 1963 is similar to Section 56 of the old Act. The question was whether against imposition of illegal municipal taxes, the respondent has equally efficacious remedy under the Municipal Act and his suit and prayer for injunction against illegal municipal taxation is not maintainable in view of old Section 56 of S.R.A. 1877. The Court maintained the order of injunction holding as under at page 386 of the report:
"In my view, the question whether an 'equally efficacious relief can 'certainly' be obtained by 'any other usual mode of proceeding' is a question of fact to be determined in each case on its own circumstances, and no hard and fast rule can be laid down in the matter. In the present case, I for myself am unable to conceive what 'other usual mode of proceeding' was available to the plaintiff which could be considered to be 'equally efficacious'. I would accordingly hold that the plaintiff was not debarred under any provision of the Specific Relief Act from instituting the present suit."
72. In Municipal Board, Mathura v. Dr. Radha Ballav Pathak, , the decision in Master Sant Singh was affirmed.
73. In Municipal Board, Mathura also the question arose out of the action of the municipality in recovering certain amount of water tax from the respondents. In that case a very lucid interpretation was given to the provision of Section 56(i) of S.R.A. 1877. The learned Judge in para 5 page 304 of the report held as follows:
"The key to the interpretation of Section 56(i) lies in the following few words "when equally efficacious relief can certainly be obtained". It will be useful, while considering the language of Section 56(i) to compare it with the language of Section 21(a) of the Act which provides that a contract for the non-performance of which compensation in money is an adequate relief cannot be specifically enforced. A comparison of the language of the two provisions would indicate that, whereas Section 21(a) talks of an adequate relief, Section 56(i) talks of an equally efficacious relief. Now, in a case such as the present one, a person, who is threatened by an illegal recovery of taxes, may wait till such time as the money is realised from him in the hope that he will obtain adequate relief by means of a suit for damages or by means of a suit for the refund of the amount illegally realised. But can it be said that it would be an equally efficacious relief? An equally efficacious relief would be a relief which would put him in the same position in which he would have been if he had not asked for a relief for injunction."
74. The learned Judge further explained the position at page 304 of the report as follows:
"To hold that a relief by way of refund of the money illegally recovered by attachment and sale of the plaintiff's property is an equally efficacious relief is to delete the word "equally" from the section for which no justification exists. It would also be tantamount to ignoring the difference between an 'adequate relief 'and an 'equally efficacious relief."
75. This Court is in respectful agreement with the aforesaid interpretation of Section 56(i) of S.R.A. 1877 which is identical with Section 41(h) of S.R.A. 1963.
76. The learned Counsel for the respondent however, referred to a decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and Anr., . The learned Counsel referred to para 10 of the said judgment. In that case also a suit for permanent injunction was filed against Municipal Corporation of Delhi on the ground that the assessment of house tax proceeded on an erroneous basis. The Trial Court and the Appeal Court refused to grant injunction. But the High Court in revision interfered with the concurrent findings and granted the injunction. In that context, Hon'ble Supreme Court did not approve the interference by the High Court and observed that the High Court erred by overlooking the remedy by way of machinery of appeal available to the respondent under Section 169 of the Delhi Municipal Corporation Act, 1957 against assessment of house tax. But the learned Judges in para 10 made it clear that they refrained from deciding the question whether the suit was barred or not on the ground of Section 41(h) of S.R.A.
77. It may be pointed out here that against the same grievance, namely the grievance against Municipal assessment, the remedy under Section 169 of the Delhi Municipal Corporation Act was available. But here, against the breach of restrictive covenant, the statutory remedy which is available under Section 42 of S.R.A., is one of injunction. Therefore, in such a case no other equally efficacious remedy apart from the injunction is available. Consequently, the argument that in view of the provision under Section 41(h) of S.R.A. injunction order cannot be granted is not accepted by this Court.
78. The learned Counsel for the respondent also cited the decision in Sunil Kumar v. Ram Prakash, on this point. The matter arose out of a suit filed for permanent injunction against the Karta of the joint Hindu family to alienate joint family property. Normally such a suit against the Karta of the joint Hindu family to alienate property for legal necessity is not maintainable. If prayer for injunction in such a suit is held maintainable, then a suit will be filed for stopping such alienation even in a case of legal necessity and for protection of the joint family property. But the Court held that in case of waste by the Karta, an injunction can be granted. So no absolute proposition has been laid down. In a situation where the suit for permanent injunction is not maintainable, the bar under Section 41(h) of course can be pressed into service to refuse the prayer for injunction. This Court fails to understand the relevance of the ratio of this case to the facts of the case in hand.
79. The decision in Ram Kissen Joydoyal v. Pooran Mull, reported in AIR 1920 Calcutta 239 was also rendered on a completely different point. In that case a suit was filed for a perpetual injunction to restrain arbitration proceeding before Bengal Chambers of Commerce -- Tribunal of Arbitration.
80. The case of the plaintiff was that there was no arbitration agreement. So the Court held if that be the case, the award even if it was passed, which appeared doubtful to the Court, the same could be a nullity and would not affect the rights of the plaintiffs and they could protect their rights in an appropriate proceeding. In such a situation the bar under Section 56(1) of SRA 1877 is handy. But in the case in hand there will be continuous invasion of the rights under restrictive covenant if the assignment is allowed to take place. So on a totally different fact situation, the ratio in Ram Kissen is wholly inapplicable.
81. The judgment of the learned Single Judge of Allahabad High Court in Man Singh (deceased) v. Ganga Devi, reported in 1982 Allahabad Law Journal 634 hardly decides any point. The case arose out of a landlord's suit for injunction against the tenant for restraining the tenant from damaging any part of 'tenement' and a prayer for damage was also there.
82. In that case, injunction was granted by the Trial Court as it found that demolition of wall and digging of holes amounted to material alteration. To that, the learned Judge observed that injunction could not be granted as the tenant could be sued for ejectment and that would have been an efficacious relief. In that context, provision of Section 41(h) of S.R.A. was just urged before the learned Judge. But there is no finding on that by the learned Judge.
83. However, there was no restrictive covenant between the parties.
84. The grant of injunction to enforce the restrictive covenant adds a totally new dimension to the case in hand. In none of the cases cited on behalf of the respondent there is any restrictive covenant and so the ratio in those cases cannot be applied here.
85. The last point urged by the learned Counsel for the respondents is that the Appeal Court should not interfere with the finding of the learned Trial Judge unless the exercise of discretion by the learned Trial Judge is perverse or is contrary to the well-settled principles. In support of this contention, the learned Counsel relied on the decision in the case of Elan Digital Systems Ltd. v. Elan Computers Ltd., reported in 1984 Fleet Reports Vol.10 page 373. The learned Counsel relied on the judgment of the Master of the Rolls at page 384 in support of the aforesaid principles. The principles are as follows:
"......there is a heavy burden on the appellant to show that the learned Judge has erred in principle, and that in exercising his discretion there is either an error of principle or -- which is the same thing in a different form -- he exercised his discretion in a way which no reasonable Judge properly directing himself as to the relevant considerations could have exercised it."
86. In the instant case, with great respect to the learned Single Judge, this Court is of the opinion that the exercise of discretion by the learned Single Judge was erroneous and provisions of restrictive covenant and Section 42 of S.R.A., 1963 were misconstrued.
87. The principles of grant of injunction in the context of Section 42 of S.R.A., 1963 has been laid down by the Hon'ble Apex Court in the case of Gujarat Bottling Company Ltd. v. Coca Cola Ltd. and Ors., . The learned Judges of the Hon'ble Supreme Court approved the grant of interim injunction in support of the negative covenant and stated the principles as follows in para 42, page 573 of the report:
"In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. [See: Chitty on Contracts, 27th Edn., Vol. 1, General Principles, paragraph 27-040 at p.1310; Halsbury's Laws of England, 4th Edn., Vol. 24, paragraph 992.] In India Section 42 of the Specific Relief Act, 1963 prescribes that notwithstanding anything contained in Clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. [See: Ehrman v. Bartholomew; N.S. Golikari at p. 389.]"
88. The proviso mentioned in para 42 are not applicable here. It cannot be said that the petitioner failed to perform any part of the negative covenant in this case. Nor the enforcement of the covenant will compel any employee to idleness. It is not the case of negative covenant between an employer and employee. It is between the lessor and lessee or his assignee. Therefore, in the absence of those conditions the negative covenant should be enforced by grant of an injunction.
89. Normally, when the parties are seeking the relief of injunction on the basis of bargain between the parties, the Court should try to preserve the bargain struck between the parties. Unless the bargain struck between the parties is unconscionable or is opposed to public policy or has been entered by a party, who, under financial duress, signed on the dotted line, the bargain must be enforced by the Court. In the instant case, nothing of these things have happened. Therefore, there is no reason why the Court will not enforce the bargain by enforcing the restrictive covenant.
90. In this case, nothing has been stated before the Court why the respondent No. 1 wants to assign its interest in favour of respondent No. 2 for using the demised premises in a manner which is prohibited under the covenant. Nor has the respondent/lessee pleaded what will be their inconvenience if the proposed assignment is not entered with respondent No. 2 for using the demised premises in a manner contrary to the covenant. The prima facie case in favour of the petitioners is self-evident. If the proposed Computer Training Centre is allowed to come up, the demised premises will certainly to be used in a manner, which cannot be called the use of the premises for a quiet and decent office purpose. Such computer centre is proposed to come up on the 7th floor of the building. Normally students who will come to attend their classes in the proposed college, they will be mostly in their teens. They have just completed Class -XII. It is not expected that after one class they will go back. It may be noted that those 150-160 students will certainly remain in the demised premises for attending the next class. Apart from the students, there are teachers and employees of such computer centre. There may be parents and visitors. Normally, students in their teens are boisterous. This is natural behaviour of students of that age group. It is not expected that such students will come to the demised premises and go out of it as quiet middle aged employees and officers of an office. Therefore, 7th floor of the demised premises will be converted into a clamorous and noisy place and its character as a quiet and decent office is bound to suffer a dent and there will be a diminution of its value as an office building. All these are being done in express violation of the restrictive covenant of the user of the building. This is the prima facie case in favour of the petitioners.
91. The balance of convenience is also in favour of granting the prayer for injunction. The Court has been told that as on date assignment has not taken place. The classes have not started. The admission process is also not complete. In fact no student has yet been admitted. Delay will encumber the petitioners' case for injunction and third party right will intervene.
92. So considering the balance of convenience, prima facie case and the legal aspect as discussed above, this Court is constrained to overrule the judgment dated 14.06.2002 passed by the learned Single Judge.
93. This Court allows the appeal and grants an order of temporary injunction restraining the respondent No. 1 from assigning its rights as a lessee in respect of the premises No. 11, Dr. U.N. Brahmachari Street, Calcutta in favour of the respondent No. 2 and/or otherwise permitting the respondent No. 2 to use and/ or utilize the same in any manner whatsoever for running a college/educational centre for any computer training programme and the respondent No. 2 is also restrained by an order of temporary injunction from commencing any course/ programme or scheme as contained in its notice published in the Ananda Bazar Patrika on June 5, 2000 and August 14, 2001, the Telegraph on June 3, 2000 or any advertisement of a subsequent date and the Information Brochure published and circulated by the respondent No. 2 or any similar course at the said premises at 11, Dr. U.N. Brahmachari Street, Calcutta till the disposal of the suit.
94. There will be, however, no order as to costs.
Hrishikesh Banerji, J.
I agree.
Later :
95. After pronouncement of the judgment, on the prayer of the parties, we direct that let the hearing of the suit be expedited. On the prayer of the learned Counsel for the respondent Nos. 1 and 2, who are defendant Nos. 1 and 2 in the suit, we grant them three weeks time from date for filing of written statement in the suit. The learned Counsel for the respondent submits that he makes this prayer without prejudice to his client's right and contentions.
96. Prayer for stay has been made by the learned Counsel for the respondent. The same is considered and declined.
97. If applied for, the parties will be entitled to get the Xeroxed certified copy of this judgment and order expeditiously.