Gujarat High Court
Selsites vs Antrix Shops Owners Association on 7 June, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/1569/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1569 of 2017
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SELSITES
Versus
ANTRIX SHOPS OWNERS ASSOCIATION
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Appearance:
RUTVIK H MODI, ADVOCATE for the Petitioner(s) No. 1
TIRTH NAYAK, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 07/06/2017
ORAL ORDER
[1] The petitioner, who is the original plaintiff, has filed Civil Suit No.2608 of 2013 with the following reliefs in paragraph no.15 of the plaint.
a. The Hon'ble Court be pleased to declare that the defendant, his servants, agents or anybody claiming through the defendant are not entitled to enter into agreement with any third party and are not entitled to implement any agreement with any third party and are not entitled to obstruct and/or disturb the plaintiff peaceful occupation and enjoyment of suit premises i.e. the hoarding for placing its advertisement and his clients advertisement.
b. The Hon'ble Court may be pleased to grant permanent injunction restraining the defendant, his servants, agents, or anybody claiming through the defendant from disturbing or obstructing the plaintiff in peaceful occupation and enjoyment of the suit property i.e. the suit hoarding for placing its Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 13 17:51:53 IST 2017 C/SCA/1569/2017 ORDER advertisement and be further restrain the defendant from executing an implement any agreement with any third party for placing advertisement on the suit premises.
c. Such other and further reliefs as may be found just and proper in the facts and circumstances of the case may also please to granted in favour of the plaintiff and against the defendant.
[2] In such suit, the petitioner preferred application exhibit 7 for interim injunction. The Court below, initially, granted ex-parte injunction and then confirmed such interim injunction by order dated 01.09.2014 whereunder the respondent - defendant is restrained from causing disturbance or obstruction in peaceful occupation and enjoyment of the suit property i.e. for placing hoarding of advertisement and further restrained the respondent from executing and implementing any agreement with any third party for placing advertisement on the suit premises.
[3] After the aforesaid interim injunction was granted, respondent preferred application exhibit 32 and took out chamber summons. The respondent has stated in the application exhibit 32 that as per the agreement with the petitioner, the petitioner has not paid or deposited the amount of rent at the rate of Rs.11,000/- per month after the interim injunction is granted and arrears of rent of 28 months for the period from June 2013 to September 2015 is due and payable by the petitioner which amount comes to Rs.3,08,000/-. The respondent, therefore, prayed to order the petitioner either to pay or deposit Rs.3,08,000/- in the Court.
[4] Learned Chamber Judge, City Civil Court, Court No.21, Ahmedabad by order dated 15.12.2016 allowed the chamber Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 13 17:51:53 IST 2017 C/SCA/1569/2017 ORDER summons and ordered the petitioner to deposit the amount of Rs.3,08,000/- in the Court within a period of two months from the date of the order which is impugned in the present petition filed under Article 226 of the Constitution. In the petition, the Court made the following order on 17.02.2017.
"As on today , total rent due and payable by the petitioner comes to about Rs.4,84,000/-. Learned advocate for the petitioner states at bar that petitioner has deposited Rs.1 Lakh with the trial court. Meanwhile, learned advocate for the petitioner states at bar that petitioner would be able to pay balance amount after three months.
Registry is directed to list this matter after three months."
[5] Learned advocate Mr.Nayak for the petitioner stated that the petitioner has already deposited Rs.2,00,000/-. He stated that the petitioner could not arrange for the remaining amount and, therefore, the remaining amount is not deposited. Mr.Nayak submitted that in the suit filed by the petitioner, the respondent was not entitled to any equitable relief as respondent himself is responsible for disconnection of electricity supply to the petitioner. He submitted that the respondent was under obligation to continue the electricity supply and only then it was possible for the petitioner to enjoy the suit property for placing the hoarding as per the agreement. He submitted that since the respondent cut electricity supply, it cannot demand payment of rent. Mr.Nayak submitted that the relief in the nature of mandatory injunction could not have been granted in favour of the respondent, on account of its conduct. He, therefore, submitted that the impugned order may be set aside and the respondent may be directed to restore the electricity supply and then the petitioner be given sometime to pay the remaining amount.
[6] The Court having heard learned advocate for the petitioner and having perused the impugned order, finds that the petitioner has not disputed that under the agreement, it was to pay Rs.11,000/- as Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 17:51:53 IST 2017 C/SCA/1569/2017 ORDER monthly rent to the respondent. It is also not disputed that Rs.3,08,000/- was due and payable by the petitioner as arrears of rent for the period from June 2013 to September 2015 and by the time, the present petition was moved, Rs.4,84,000/- were due and payable towards arrears of rent. When the petitioner was granted interim injunction, the arrears of rent were already outstanding against the petitioner and the petitioner did not pay or deposit the arrears of rent. By injunction granted by the Court, the petitioner has become entitled to continue to occupy and enjoy the suit property for placing hoarding for advertisement without any disturbance or obstruction from the respondent. When the petitioner has got such interim injunction from the Court, the petitioner could be made to pay or deposit the arrears of rent by further order of the Court pending the proceedings of the suit to continue interim protection granted by the Court. The Court below therefore, in its discretion passed the order for payment of Rs.,3,08,000/- being arrears of rent for 28 months by the petitioner. Mr.Nayak, however, submitted that the respondent was not entitled to such equitable relief from the Court as he has cut electricity connection and caused damage to the petitioner. The Court below in its impugned order has observed that at this stage, no evidence is produced by the petitioner to show that the petitioner has suffered what damage on account of cutting of electricity connection allegedly by the respondent nor even the petitioner has produced any evidence as to for what time his electricity connection remained disconnected. Therefore, simply because the petitioner has alleged that he has suffered damage on account of cutting of electricity connection by the respondent that by itself is no ground to deny the payment of rent amounts by the petitioner to the respondent when under the agreement the petitioner is otherwise required to pay the rent to respondent. The Court finds that since the petitioner is granted interim protection to continue peaceful occupation and enjoyment the Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 17:51:53 IST 2017 C/SCA/1569/2017 ORDER suit property belonging to the respondent, the Court below was within its jurisdiction to pass further order to put the petitioner to condition of depositing the arrears of rent. In such discretionary order, the Court finds that no interference is required under Article 226 of the Constitution and hence, the petition is required to be rejected. It is accordingly rejected. Learned advocate for the petitioner requests to grant some reasonable time to pay or deposit the remaining amount in the Court below. Considering the request, time of two weeks is granted to the petitioner to deposit the remaining amount.
(C.L.SONI, J.) vijay Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 13 17:51:53 IST 2017