Himachal Pradesh High Court
Lrs. Rajeev Aggarwal And Another vs Sh. Ankush Sood on 19 August, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 164 of 2018
Reserved on: 08.07.2019
.
Date of decision: 19.08.2019
______________________________________________________________________
Vijay Kumar Aggarwal (deceased) through his
LRs. Rajeev Aggarwal and another ....Petitioners.
Vs.
Sh. Ankush Sood .....Respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioners: Mr. Arjun K. Lall, Advocate.
For the respondent: Mr. R.K. Bawa, Senior Advocate, with Mr.
Prashant Sharma, Advocate.
Ajay Mohan Goel, Judge:
By way of this petition filed under Article 227 of the Constitution of India, the petitioners have prayed for the following relief:
"It is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present petition and to set aside the impugned order Annexure PJ, dated 07.05.2018, passed by the Ld. Additional District Judge (I) in Civil Appeal No. 1 of 2018, whereby the Ld. Trial Court's order dated 18.11.2017 has been partly modified and to pass such further and other orders as may be deemed fit in the interest of law and justice."
1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 22. Petitioner No. 2 and predecessorininterest of petitioner No. 1 have filed a suit against the respondent herein in the Court of learned Civil Judge (Senior Division), Shimla praying for a decree .
of permanent perpetual prohibitory injunction against the defendant for restraining him from constructing/reconstructing/restoring or repairing the suit premises known as 'Tara Bhojnalya', The Mall Shimla.
3. The case of the petitionersplaintiffs (hereinafter referred to as 'the plaintiffs') is that they are exclusive owners of the suit property measuring 24' x 24' known as 'Tara Bhojnalya' at the Mall Road Level. A room and a toilet measuring approximately 21' x 8.2' are situated on the second storey of the aforementioned four storeyed building. The Mall Road Level constitutes the third storey alongwith an attic. The premises were rented out by the plaintiffs to the defendant vide lease agreement dated 01.04.2017. Defendant was running a restaurant in the tenanted premises, which restaurant abuts and is situate on The Mall Road Shimla. On 17th October, 2017, at around 8:15 p.m., a fire broke out in the tenanted premises known as 'Tara Bhojnalya' and the entire tenanted premises were engulfed in a devastating fire and were destroyed.
The attic floor was completely burnt and razed. The tenanted premises at the Mall Road Level wherein restaurant was run by the defendant, was destroyed in fire and in effect, the tenanted premises ceased to exist in the manner that the same could constitute to be 'tenanted premises', which could be legally used and occupied by the tenant. According to the plaintiffs, with the destruction of the tenanted premises in fire, defendant ceased to be in possession of the original tenanted premises and he also ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 3 ceased to have any right over the same as a tenant. His tenancy rights over the suit premises were literally extinguished by the fire. As per the plaintiffs, after destruction of the suit premises in fire, they were again in .
exclusive possession of the same as also the owners/landlords of the suit property. However, defendant was openly threatening the plaintiffs that he shall interfere in their aforesaid possession of the suit property.
Defendant had further threatened to reconstruct, restore and repair the premises in question, though he had no legal right to do so. As per the plaintiffs, the right to reconstruct, restore or repair the suit premises was exclusively vested in plaintiffs as owners of the suit property and re construction/restoration work could not be carried out by anyone much less the defendant. It is primarily on these grounds that the suit has been filed by the plaintiffs against the defendant, which is pending adjudication.
4. Alongwith with the suit, plaintiffs also filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying for a temporary injunction against the defendant for restraining him from constructing/reconstructing/restoring or repairing the suit premises either himself or through any other person and from interfering in the possession of the plaintiffs over the suit land.
5. The suit has been contested by the defendant, who by way of his written statementcumcounter claim has denied the allegation that as a result of the suit premises having been burnt in a fire, his tenancy has come to an end. According to the defendant, the fire had caused some damage to the premises in question, particularly to the ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 4 wooden furniture and fixtures etc. The premises situated adjoining and below the premises in question were perfectly in good condition and it was incorrect that tenanted premises were completely destroyed or that .
attic floor had been completely burnt and razed. Defendant denied that he had no right to reconstruct, restore or repair the premises or to occupy or possess the same. As per the defendant, he was in possession of and carrying on business in the suit premises and had right to repair doors, windows, toilets and roofs etc. without causing any damage or disturbing structure of the building and he was also entitled to carryout internal repairs necessary for carrying on his business. By way of counterclaim, defendant sought a decree of injunction against the non claimants/plaintiffs for restraining them from interfering in any manner with the possession of the counterclaimant/defendant over the suit premises or with the internal repair work necessary for carrying on business therein in accordance with the terms of lease agreement, dated 01.04.2017. Alongwith the counterclaim, the defendant also filed an application under order 39, Rules 1 and 2 of the Code of Civil Procedure praying for an interim injunction against the plaintiffs for restraining them from interfering with his possession over the suit premises or carrying out of internal repairs necessary for carrying on business therein as per lease agreement, dated 01.04.2017.
6. The Court of learned Civil Judge, Court No. 3, Shimla vide order, dated 18.11.2017, allowed the application of the plaintiffs/landlords filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure and restrained the defendant/tenant from constructing, ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 5 reconstructing, restoring or repairing in any manner whatsoever suit premises known as 'Tara Bhojanalya', directly or through his agents, servants etc. and partly allowed the application filed by the defendant .
under Order 39, Rules 1 and 2 by restraining the landlords/plaintiffs from interfering in possession of the tenant/defendant in the suit premises, however, learned Court declined the prayer of the tenant/defendant for injunction to restrain the landlord from interfering in internal repairs necessary for carrying on business in the suit premises.
7. to Feeling aggrieved, the tenant/landlord filed an appeal under Order 43, Rule 1(r) of the Code of Civil Procedure against order, dated 18.11.2017, passed by the Court of learned Civil Judge, Court No. 3, Shimla.
8. Learned Appellate Court vide judgment dated 07.05.2018 has partly allowed the appeal so filed by the tenant/defendant and has modified the order passed by the learned Trial Court to the extent that defendant/tenant has been held to have right to repair window and door as per rent agreement, dated 01.04.2017.
9. While arriving at the said conclusion, learned Appellate Court held that it was a question of ordinary prudence that after fire took place in Tara Bhojnalya, some damage might have been caused to the window panes, doors and other fixtures. It further held that perusal of Clause4 of the Agreement entered into between the plaintiffs and defendant demonstrated that tenant was entitled to carry out internal repairs necessary for carrying out the business without damaging or ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 6 disturbing the structure of the premises leased out. Learned Appellate Court held that it was provided in the agreement that tenant can repair doors, windows, roof and toilet without causing any substantial damage .
to the structure at his own expenses, meaning thereby, the right was provided to the tenant to do internal repairs as per the terms of Clause4 of the rent agreement. Learned Appellate Court thereafter, while distinguishing the case law relied upon before it by the plaintiffs, held that in the case in hand, it was the pleaded case of the defendant that he was not doing any reconstruction and was only repairing internal structure, i.e., doors and window panes etc. and in view of the same, order passed by the learned Trial Court required to be modified to the extent that tenant can do internal repairs necessary for carrying out the business as per agreement dated 01.04.2017. Learned Appellate Court also held that said right of the tenant demonstrated that he was having prima facie case in his favour and he could not be deprived of his valuable right which was recognized by the landlord in the agreement.
10. Feeling aggrieved by the findings returned by the learned Appellate Court, the landlords have preferred the present petition.
11. I have heard learned counsel for the parties and have also gone through the order passed by the learned Trial Court as also the judgment passed by the learned Appellate Court as well as other documents appended with the petition.
12. It is settled principle of law that in order to see as to whether a party is entitled for an interim relief in terms of Order 39, ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 7 Rules 1 and 2 of the Code of Civil Procedure, all that the Court has to see is whether the party concerned is able to meet the requirements of tripple test of having a prima facie case in its favour, having balance of .
convenience also in its favour and demonstrating that in the event of interim relief being denied to the party, it shall suffer from irreparable loss.
13. Coming to the facts of the present case, it is not in dispute that the defendant was running a restaurant in the name and style of 'Tara Bhojanalya' in the suit premises as a tenant, which suit premises are owned by the petitioners. The factum of the premises being held by the defendant in terms of lease agreement, dated 01.04.2017, is also not in dispute. Clause4 of the said agreement, which has been relied upon by the learned Appellate Court while partly allowing the application filed by the defendant/tenant before it reads as under:
"4. That the tenant shall not carry out any structural changes in the premises leased out so as to impair or deminish the value and utility of the premises. However, the tenant shall be entitled to carry out internal repairs necessary for carrying out the business without damaging or disturbing the structure of the premises leased out. However, the tenant can repair doors, windows, roof, toilet without causing any substantial damage to the structure at his own expenses."::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 8
14. It is not in dispute that the suit premises were gutted in fire on 17th October, 2017. Whereas the plaintiffs claim that as a result of the suit premises having been destroyed in fire, the tenancy of .
defendant has come to an end, as no such premises exist at the spot which were contemplated while executing the lease agreement, dated 01.04.2017, the case of the defendant is that the suit premises were only partly destroyed and the same does exists and it cannot be said that tenancy of the defendant has come to an end.
15. Be that as it may, whereas the plaintiffs contend that the suit premises cannot be utilized for the purpose for which lease agreement was entered into between the plaintiffs and defendant, however, as per the defendant, said premises can be used for the said purpose.
16. The application which was filed by the defendant alongwith the counterclaim preferred by him was inter alia with the prayer that during the pendency of the suit and the adjudication of the counterclaim filed by him, plaintiffs be restrained from interfering with the possession of the defendant over the suit premises or with the internal repair work necessary for carrying on business therein in terms of lease agreement, dated 01.04.2017.
17. A perusal of the averments made in the application filed by the defendant under Order 39, Rules 1 and 2 alongwith the counterclaim demonstrates that it was mentioned therein that in terms of agreement, dated 01.04.2017, the defendant was not only entitled to run his business, but he was also entitled to carry out internal repairs ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 9 necessary for running the business, particularly the internal repair work/renovation. The tone and tenor of the averments made in the application fully demonstrate that the restraint order which was being .
prayed for by the defendant against the landlords was for restraining the landlords from interfering in the work of repair etc., which the tenant either was carrying out or was intending to carry out to make the suit premises business worthy. In other words, it was not the case of the tenant either before the learned Trial Court or before the learned running business of a Appellate Court that the fire had not destroyed the suit premises to such an extent that the same had been rendered unfit for the purpose of restaurant without carrying out some repair/renovation work.
18. In this background, when one peruses the order passed by the learned Appellate Court, the same demonstrates that learned Appellate Court on the basis of Clause4 of Agreement, dated 01.04.2017 held that there was a prima facie case in favour of the tenant as said Clause conferred upon him the right to carry out internal repairs necessary for carrying on business over the same. On these basis, learned Appellate Court while modifying the order passed by the learned Trial Court, allowed the tenant the right to repair windows and doors of the suit premises as per agreement, dated 01.04.2017.
19. In my considered view, said order passed by the learned Appellate Court is not sustainable in the eyes of law. Learned Appellate Court has erred in not appreciating that Clause4 of the agreement, dated 01.04.2017, did not contemplate a situation wherein on ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 10 account of some act of omission and commission of either of the parties or due to an act of God, the premises were rendered unfit for carrying out the business. Clause4 was inserted in agreement, dated 01.04.2017, .
envisaging a factual position as it was of the demised premises at the time when they were let out to the tenant, so that the tenant could make them business worthy. This important aspect of the matter has not been appreciated by the learned Appellate Court while passing the impugned order. Today, the factual position is that the suit premises have been damaged in fire. Whether even after damage, the suit premises are in the same position in which they were let out to the defendant, is a fact/an issue which shall be decided by the learned Trial Court on the basis of evidence which shall be led before it by the parties. Therefore, no order could have been passed by the learned Appellate Court permitting the tenant to carry out repair work of windows and doors etc. In fact, order passed by the learned Trial Court in the applications which were filed before it under Order 39, Rules 1 and 2 of the Code of Civil Procedure by the plaintiffs as also the defendant was a prudent and just order and the same did not warrant any interference. By modifying the same and by passing the impugned judgment, learned Appellate Court has exercised jurisdiction vested in it with material irregularity, as it has erred in not appreciating that by granting permission to the tenant to carry out repair work of doors and windows in the premises, which have been engulfed in fire, the same would complicate the adjudication of the lis between the parties.
::: Downloaded on - 29/09/2019 02:15:57 :::HCHP 1120. Accordingly, this petition is allowed. Judgment, dated 07.05.2018, passed by the learned Appellate Court in Civil Miscellaneous Appeal No. 2S/14 of 2018 is set aside, with the direction that the .
defendant shall not be entitled to carryout any repair work, including that of doors and windows in the demised premises during the pendency of the suit. However, it is clarified that the protection granted to the parties vide order dated 18.11.2017, passed by the learned Trial Court in CMA No. 266 of 2017 in Civil Suit No. 461 of 2017 & CMA No. 286 of 2017 in Counter Claim No. 511 of 2017 shall remain in force during the pendency of the suit. Petition stands disposed of, so also pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge August 19, 2019 (bhupender) ::: Downloaded on - 29/09/2019 02:15:57 :::HCHP