Perfect Engineering Works vs Harish Chauhan
1996 Latest Caselaw 92 Del

JUDGMENT

Devinder Gupta, J.

(1) The first application (IA 10778/94) by the plaintiff is under Order 39 Rules 1 & 2 of the Code of Civil Procedure praying that during pendency of the suit the defendant be restrained from digging, pilfering or mutilating or erecting any other machinery in the suit premises bearing No. C-18/ 4, Wazirpur Industrial Area, Delhi-110 005 and restraining the defendant from starting any new business from the suit premises. Further injunction prayed for its to restrain the defendant from erecting and operating any furnace necessary for establishing or developing any new business. This application was moved on 25.11.1994. There is another application, Ia 1234/94 also which is pending and was presented by the plaintiff along with the suit under Order 39 Rules 1 & 2 of the Code seeking order of injunction restraining the defendant from digging, pilfering or mutilating premises, erecting any structure, storing any acids, including Hydrochloric Acid and using the same for any industrial purpose, including cleaning of steel or erecting and operating any furnace. In another application, namely, Ia 10779 / 94 prayer made is to appoint a local Commissioner to visit the premises with a view to ascertain certain factual position. These three applications are being disposed of by this common order.

(2) Plaintiff claims that on leasehold plot No. 3/16, Wazirpur Industrial Area, a building was constructed by him, out of which one portion, comprising one hall measuring 750 sq. ft. and back side open area measuring 840 sq. ft. on the ground floor with entrance from back gate was let out by the plaintiff to M/s. D. Bhawani Stainless Steel with partners Amrit Lal Aggarwal and Prem Narayan Sharma on 16.4.1980. The tenant sub-let the premises to Harish Chauhan, defendant, a supervisor in the said partnership-firm, of which the plaintiff came to know only in 1993, when electricity supply was discontinued to the premises by Desu and when the defendant tried his utmost to get the electricity restored by filing various cases in this Court. It is alleged that the main effort of the defendant has been to have a legal title or otherwise grab the suit property thereby depriving the plaintiff of ownership and possession. According to the plaintiff, the defendant has no right, title or interest in the premises. The plaintiff has also alleged that the defendant is carrying on the work of fabrication of steel re-rolling mill. With a view to expand the business the defendant had intention to carry out digging operations and instaled new machinery. He has also been using all sort of acids for cleaning of the steel. In this background decree has been prayed against the defendant restraining him from carrying out any diggging, pilfering or mutilating of the premises, erecting any structure, including installation of new machinery, storage of acids and from erecting and operating furnaces.

(3) Defendant has hotly contested the suit alleging that there is no basis of filing of the suit. The entire effort of the plaintiff is to harass the defendant. According to the defendant he is in lawful occupation of the premises in question as a tenant under the plaintiff since 1980 on payment of Rs. 3,000.00 p.m. as rent. Premises measuring 2500 sq. ft. comprising of one hall, one office room along with a wooden temporary cabin for workshop, two temporary tin sheds, toilet, bath room etc. were rented out by the plaintiff to the defendant in 1980 and ever since the defendant has been in occupation of the premises and enjoying the facilities of electricity and water. The defendant denied that the premises were ever let out to M/s. D. Bhawani Stainless Steel or that the same were sub-let by M/s. D. Bhawani Stainless Steel to him. According to the defendant, the plaintiff is trying to create numerous hurdles in peaceful enjoyment of the premises by the defendant by approaching the local authorities. The defendant has denied that any illegal activity was being carried out. The defendant claims that he is engaged in re-rolling of stainless steel as his business activity. Even since the premises were taken on rent, the defendant has been running his re-rolling unit of stainless steel in the premises. Certain machines are required to be set up indigenously in the unit which was set up in 1980. At no point of time the defendant dug up the premises. Re-rolling is a heavy machine. It is fastened to the earth with the help of bolts and nuts so that it docs not move on account of vibrations caused during the washing of the machine. Since it is fastened to the earth, it usually misses its place and also some time it breaks the foundation on which it has been fastened. Therefore, necessity always arise for replacing the foundation in fastening the machine once again to its proper place so that machine can work properly. Such operation of re-fastening of the machine is prevalent in every unit of re-rolling. This work is not carried out by the defendant with any ulterior motive, as alleged, but with a view to smoothly carry on his business. According to the defendant, no permission is required to set up re-rolling mill since the premises were taken on rent for the said purpose and unit falls within the industrial area only where there are more than 1000 units working in the vicinity.

(4) It will be noticed from the pleadings of the parties that the occupation of the defendant is not disputed. The nature of occupation is in dispute. The plaintiff appears to have deliberately avoided to furnish the date of the alleged sub-letting. It is alleged by him that he came to know of sub-letting only in 1993. The plaintiff has also alleged that he had come to know of various suits filed by the defendant against the local authorities but it is very strange that till date the plaintiff has not filed any proceedings for ejectment against the defendant. This suit also the plaintiff has filed for grant of a decree injunction. In case, according to the plaintiff, the defendant is a sub-tenant or in any case has no authority to remain in occupation, nothing prevented the plaintiff from initiating appropriate proceedings for ejectment against the main tenant or taking out such proceedings against the defendant for obtaining possession as he might have been advised. Filing of the suit for injunction only appears to be with an ulterior motive.

(5) Prima facie, it appears that the defendant is in occupation of the premises and has been carrying on his business of re-rolling stainless steel mill and as the nature of premises would suggest, which is apparent from the bare perusal of the photograph, machinery was installed with the help of bolts embedded to the earth. Defendant cannot be prevented from carrying on the said business. In case some necessary repairs are to be carried out to the machine or re-plastering to the foundation, defendant cannot be prevented from doing so. Of course, the defendant can be prevented from making any structural change to the premises in question and/or from carrying out any digging operation in the premises.

(6) There is absolutely no prima-facie case made out by the plaintiff for grant of injunction as prayed for against defendant. No case is made out on the averments made in the plaint of nuisance on which decree could be claimed by the plaintiff. Premises fall within the industrial area and it is not disputed that there are various industrial units functioning in and around the area. Otherwise also it is to be presumed that the premises are meant for carrying out industrial activity, since, according to the plaintiff also, the premises were let out to the so-called tenant M/s D. Bhawani Stainless Steel for carrying out industrial activity. There is also no question of any irreparable loss or injury. In the event of plaintiff succeeding he would be entitled to claim damages etc. or in other words injunction, if refused will not cause any irreparable loss or injury to the plaintiff which cannot be compensated in money. Balance of convenience also does not lie in the grant of injunction against a person who is carrying on his business in the premises. Plaintiff at the most is entitled to an order of injunction during pendency of the suit against the defendant from carrying out any structural alteration to the premises and not beyond that. There is also no case made out appointment of a Commissioner to carry out spot inspection. Applications are accordingly disposed of. Interim order passed stands discharged. Instead the defendant shall stand restrained from carrying out any digging operations or causing structural change to the premises in question. Crl. M.540/94 To be taken up at the time of final decision f the suit. Suit 308194 List for admission/denial of documents before the Jt. Registrar on February 15,1996 and in Court on March 15, 1996 for framing of issues.