Delhi High Court
Delhi Automobiles Ltd. vs Economy Sales on 27 May, 1994
Equivalent citations: 1994IIIAD(DELHI)658, 55(1994)DLT39, 1994(29)DRJ548, (1994)108PLR51
JUDGMENT V.B. Bansal, J.
(1) Delhi Automobiles limited has filed this revision petition against the order dated 17/2/1993 of Shri S.M. Chopra, Additional Senior Sub-Judge, Delhi, dismissing the appeal of the petitioner and confirming C.R.201 /93 the order dated 1/12/1992 of Shri K.S. Pal, Sub-Judge, 1st Class, Delhi, vide which an application under order 39 Rules 1 & 2 read with Section 151, Cpc, moved by the defendant/ petitioner was dismissed while the application under Order Xxxix Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, moved by the plaintiff/ respondent was .allowed and the petitioner was restrained from dispossessing the respondent/petitioner forcibly, except with the process of law.
(2) It would be necessary to state in brief the facts leading to thr filing of this petition, M/s. Economy Sales, respondent, filed a suit for declaration in which the following reliefs were claimed: (A)Declare that plaintiff firm is a tenant in the suit property, namely front portion of 1, Sikandra Road, New Delhi together with a room as per site plan and that plaintiff's tenancy rights in the suit property are not in any manner affected by the compromise decree passed in Suit No-667/79 styled as M/s. Delhi Automobiles Ltd. Vs. Maharaja Satbir Singh and others. (b) A decree for Permanent Injunct officers, agents, employees, contractors etc. from dispossessing the plaintiff firm from the suit premises, namely 1, Sikandra Road, New Delhi referrable to the front portion and room marked A in the site plan. (c) Cost to the suit be also awarded in favor of the plaintiff. (d)Any other relief deemed fit and proper under the facts and circumstances of the case be also awarded in favor of the plaintiff.
(3) It was inter alia pleaded by the plaintiff/ respondent that it was a partnership firm duly registered under the Indian Partnership Act having Smt.Shashi Choudhury and Ravi Kamal as partners. It was also pleaded that the premises known as 1, Sikandra Road,ew Delhi were jointly owned by S/s.Majaraj Dalbir Singh, Maharaj Kumar Gajbir Singh and late His Highness Maharaj Kumar Mahabir Singh as co-heirs having I/3rd share each and there has never been any partition amongst the owners. It was also claimed that Shri Ravinder Kumar Singh as a co-owner was competent to create tenancy in respect of his share and that the plaintiff was inducted as a tenant through its partner Ravi Kamal at a monthly rent of Rs.1,500.00in December 1983 and a letter dated 6/1/1984 was written by the aforesaid late Shri Ravinderbir Singh demanding a sum of Rs.6,000.00 on account of rent from December 1983 to March 1984. It was also pleaded that the plaintiff firm had been enjoying the said property as a tenant ever since it was let out for commercial purpose to the knowledge of all the co-owners without there being any objection to the aforesaid letting. It has also been pleaded that on 14/3/1992 the defendant/petitioner herein had fraudulently represented that they had purchased the entire building known as I, Sikandra Road, New Delhi and threatened the plaintiff to be dispossessed from the portion in their possession as a tenant and believing this claim to be correct the plaintiff instituted a suit being Suit No.130/ 92 on 16/3/1992 with a prayer that M/s.Delhi Automobiles Limited be restrained from dispossessing the plaintiff from the front portion without due process of law in which an ad-interim injunction was issued directing the parties to maintain status quo about the existing position and possession of the suit property which was extended from time to time. The said suit was, however, withdrawn with permission to file another suit since the plaintiff firm was not registered at the time of the filing of the said suit.
(4) It has also been claimed that in the said suit it was pleaded by the Delhi Automobiles Ltd., defendant/petitioner that it is a law abiding person and that the plaintiff would be evicted from the premises according to law. It has also been claimed that in the said suit the defendant had also made averment about an Agreement to Sell dated 4/6/76 between M/S.Delhi Automobiles Ltd. and the co-owners and about the filing of the suit for specific performance against the co-owners which was registered as Suit No-667/79, pending in the High Court. It has also been pleaded that the plaintiff was in continuous settled possession since the tenancy was created in its favor in December 1983 and, thus, they cannot be evicted.
(5) An application under0rder39 Rules 1 &2 read with Section 151 of the Code of Civil Procedure was also filed by the plaintiff with a prayer that the defendants, its officers, agents and employees be restrained from dispossessing the plaintiff from the suit premises, viz. the front portion of property bearing No.1, Sikandra Road, New Delhi, together with the passage leading to one room in the main building till the final decision of the suit on merits.
(6) The defendant contested the suit as also the application by filing written statement and reply to the application. It was inter alia pleaded by the defendant that the suit filed by the plaintiff was misconceived and riot maintainable in law. It was further pleaded that the property known as 1, Sikandra Road, New Delhi was owned by three brothers, viz. Satbir Singh, Gajbir Singh and Ravinderbir Singh, each having 1/3rd share and all the three brothers entered into an Agreement dated 4/6/76 to sell this property to the defendant for a consideration ofRs.15,00,000.00 and that since the owners did not honour the Agreement to Sell, Suit for Specific Performance viz. Suit No.667/79 was filed by the plaintiff against the owners in which an application under Order 39 Rules 1 & 2 was also moved and that there wasarestraintorderdated5/1/1981 on account of which the co-owners were restrained from alienating, mortgaging or creating any encumbrance or parting with the possession of the property to any other person, and ultimately the application was disposed of on 19/1/1983 on the basis of an undertaking given by the defendant/owners that they would not sell or dispose of or part with the possession of the property in question till the disposal of the suit. It had further been pleaded that the possession of the front portion was given to the plaintiff in violation of the undertaking given by the owners in the High Court and that it did not confer any valid title in the plaintiff. It has also been pleaded that the premises could be used only for residential purposes, as is clear from the lease between the government and the previous owners and that the plaintiff has been using the same for commercial purposes in violation of the terms and conditions of the lease deed executed under the Government Grants Act, 1895. It was further pleaded that on account of the misuse of the property by the plaintiff, re-entry proceedings had been initiated by the Land & Development Office, which has also been claiming huge amounts as penalty. A prayer was, thus, made that the suit may be dismissed. Reply to the application was also filed praying that the same may be dismissed.
(7) An application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure was moved by the defendant praying that the plaintiff be restrained from using the portion of the premises in their possession for commercial purpose till the disposal of the suit.
(8) The learned Trial Court after hearing arguments allowed the application, of the plaintiff and restrained the defendant from dispossessing the plaintiff forcibly from the suit property while the application of the defendant was dismissed. Feeling aggrieved the defendant filed an appeal before the Senior Sub-Judge, which was dismissed on 17/12/1993 and, thus, this revision petition.
(9) I have heard Shri L.R. Gupta, learned senior counsel for the petitioner and Shri D.D. Thakur, learned senior counsel for the respondents. I have also gone through the record.
(10) Learned counsel for the petitioner has submitted that the Court could not put premium on the illegality committed by the respondent and it is against the public policy to use the property in question for commercial purposes in violation of the terms of the grants under the Government Grants Act. He has further submitted that no decree can be passed which would be penal or in contravention of the law and violative of the public policy and it would not permit a person to ask for injunction who has violated the terms of the grants in favor of the original lessee. It has also been submitted that grant of injunction is an equitable relief and while granting so condition could be imposed and the learned courts below have erred in making an observation that no such prayer for the grant of injunction against the respondent restraining it from using the premises for commercial purpose was made since it is an equitable relief which could be granted by way of imposing conditions at the time of allowing the application under Order Xxxix Rules 1 & 2, moved by the plaintiff/respondent.
(11) Learned counsel for the respondent has, on the other hand, submitted that the plaintiff is not the owner of the property and merely because a suit for specific performance filed by the plaintiff has been decreed does not confer any title in their favor and they are not entitled to claim the relief of injunction in the suit filed by the respondent/plaintiff. It has, thus, been submitted that a relief which they can claim by way of filing a separate suit cannot be granted in the suit filed by the respondent. It has also been submitted that the relief claimed by the petitioner is barred under Section 41(e) of the Specific Relief Act since the relief of injunction cannot be allowed which cannot be specifically enforced in the suit of the plaintiff. A prayer has, therefore, been made that the revision petition may be dismissed being devoid of any force and the learned courts below have correctly decided the application by not issuing the prayed injunction in favor of the petitioner.
(12) It is not disputed that the defendant/petitioner has not obtained Sale Deed in respect of the disputed premises so far and, as such, they have not become the owner. It has clearly been held in Babu Lal Vs. M/s. Hazari Lal Kishori Lal and others that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree holder. It has also been held that the right and title passes to him only on the execution of a Deed of Sale either by the judgment debtor himself or by the Court itself in case ho fails to execute the Sale Deed and that it is idle to contend that appealable right had accrued to the petitioner merely because a decree had been passed for the specific performance of the Contract. In this regard a rcfcrcncL' can be made to the case Hakim Enayat Ullah Vs. Khulil Ullaah Khan and another (AIR 1938 Allahabad 432).
(13) It is not disputed that as per the terms of the grant by the government in favor of the original lessee, the premises could be used only for residential purpose and the respondent has now been using the same for commercial purpose, which is, thus, in violation of the terms of the grant. The petitioner had moved an application for injunction thereby restraining the respondent/plaintiff from using the premises in violation of the terms of the grant in as much as the same was being used for commercial purpose and the grievance of the petitioner want that on account of the misuse the government could re-enter the premises, thereby causing an irreparable loss to the petitioner who has obtained a decree for specific performance. There can possibly be no dispute that in order to claim a right independently the only way open to the petitioner was to file a suit. However, there can be no restriction in the petitioner protecting its right while defending the suit filed by the respondent. In case Bai Dosabai Vs. Mathurdas Govinddas and others it has been held that a contract for the sale of immoveable property though does not in itself create any interest in or charge on such property, creates an obligation annexed to the ownership of the immoveable property not amounting to interest in the property to which obligation may be enforced against a transferee with notice of the contract or a gratuitous transfer of property. Here is a case where the petitioner wants to protect the property from being resumed by the Union of India on account of its misuse against the terms of the grant.
(14) In case Chand Kanwar and others Vs. Rambhajan and others it has been held that the grant of injunction is in the nature of equitable relief and conditions can be imposed so that the interest of the other party may also be safeguarded. There is no prohibition under the Code of Civil Procedure that a condition cannot be attached to an injunction. Incase Savariyayi Gnanappu Vs. Thiraviyum Pillai Subhash Pillai (AIR 1957 Travancore-Cochin 287) a suit for permanent injunction was filed by the plaintiff to restrain the defendant/tenant from Using the room as a kitchen, thereby causing nuisance to the adjoining tenants and further restraining him from using the verandah and courtyard for stacking firewood and other things, not included in the tenancy. Subsequently, the plaintiff removed the door of the room leading to the verandah and thereby blocked the passage to the verandah by raising masonary structure. Plaintiff also removed certain smoke tiles which the defendant had installed on the roof for the better escape of smoke from the kitchen. Defendant moved an application praying for a mandatory injunction, directing the plaintiff to remove the masonary structure by which the passage of the varandah was closed and with a further direction to the plaintiff to put the smoke tiles which had been removed. This application was allowed. An appeal was filed by the plaintiff claiming that no such relief could be granted to the defendant in a suit for injunction by the plaintiff. It was held that the plaintiff's interference with the door passage and the smoke tiles in thereof tended to discredit the temporary injunction order passed by the Court and that the remedy of the plaintiff was to challenge the order in appeal, but it was not open to him to take the law into his own hands and change the scope of the earlier order in the case. The Court has to ascertain whether a claim to relief by the defendant/ petitioner arises out of the plaintiff's cause of action or was incidental to it. In the instant case it is the respondent/plaintiff who came forward and filed a suit for permanent injunction restraining the defendant from dispossessing him from the property in question. It is, thus, clear that the petitioner has not come forward to claim any relief but is defending his own right in the suit filed by the respondent. Neither the rule of procedure nor technicalities of law can stand in the way to give justice. Even the law bends before justice.
(15) There is no doubt that the respondent has claimed that it has been using the premises for commercial purpose ever since these were taken from one of the co-owners but while praying for interim injunction a condition can certainly be imposed on the plaintiff not to violate the terms of the grant in favor of the original lessee by the government against whom the petitioner/defendant has obtained a decree for specific performance. It is also pertinent to note that during the pendency of this petition on an application, viz. CM.668/93 the respondent was restrained from using the premises for .commercial purpose though there was no restriction to its use for residential purpose. On 19/4/1993 this order was challenged by the respondent in the Supreme Court by way of filing Special Leave Petition No. 7066/93, which was, however, withdrawn on 12/5/1993.
(16) Merely because the petitioner had not made a prayer for this injunction in the reply, in my view, could not be a ground to decline imposing the condition of not using the premises for commercial purpose while granting injunction in favor of the respondent and against the present petitioner.
(17) In view of my aforesaid discussion, the revision petition is accepted in part. The order 1/12/1992 of Shri K.S. Pal, Sub-Judge, 1st Class, Delhi and the appellant order dated 17/2/1993 of Shri S.M.chopra, Additional Senior Sub-Judge, Delhi, are modified and the injunction granted in favor of the respondent/plaintiff is modified to the extent of imposing a condition that the grant of injunction is subject to the condition that the plaintiff would not use the premises in question for commercial purpose in violation of the terms of the government grant. Parties are, however, left to bear their own cost.