Oriental Insurance vs Lakhan Pal Pvt. Ltd. And Anr.
2000 Latest Caselaw 1302 Del

JUDGMENT

Devinder Gupta, J.

1. Defendant has challenged the order passed on 4.9.2000 by learned Single Judge deciding two applications (I.A. 3934/2000 & I.A. 7941/2000).

2. The facts in brief are that on 3.5.2000 S. No. 834/2000 was filed by the plaintiff/respondent against the defendant/appellant in original side of this Court wherein plaintiff has claimed a decree of specific performance directing the defendant; to renew the lease of the premises, on the ground floor of Oriental House situated at 4/24, Asaf Ali Road, New Delhi initially for a period of 5 years from 1.4.99 at a monthly rent of Rs. 35,406,25; to execute a lease deed containing all relevant clauses as agreed upon between the parties in lease deed dated 15.9.94 and cause it to be registered; and a decree for permanent injunction restraining the defendant permanently from dispossessing the plaintiff from suit premises except in case of breach of the terms of lease dated 15.9.94 or such renewed lease, as may be executed between the parties.

3. The aforementioned suit was filed, inter alia, alleging that after the lease had been granted in the year 1967 firstly by Life Insurance Corporation of India and there after by the defendant in 1976 the lease was renewed with marginal increase in rent.At the beginning of 1994 plaintiff was paying a sum of Rs. 3,043.53 towards monthly rent. After much deliberations rent was increased to Rs. 28,325/- per month. Plaintiff agreed for such high rate of rent because of an understanding that the lease would berenewed for a period of five years subject to an increase in rent by 25% with no right to terminate the lease by the defendant except in case of violation of the terms of the lease deed. Lease deed accordingly was executed on 15.9.94. Before expiry of period of lease the plaintiff sought renewal for a further period of five years through letter dated 12.1.99 but no steps were taken by the defendant in renewing the lease. Instead of the defendant, in breach of the terms served a notice dated 24.11.99 terminating plaintiffs tenancy w.e.f. 31.12.99 and later took out proceedings for plaintiffs eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the Act'). The plaintiff alleged that as it was ready and willing to perform its part and has alwys been ready to do the same, it was entitled to a decree as prayed for. The suit is being contested by the defendant denying the plaintiffs right to claim the decree. Alongwith the suit plaintiff filed an application under Order 39 Rules 1 & 2 CPC. Ex parte ad interim order of injunction was granted on 4.5.2000. Defendant applied for vocation of the stay order and by the impugned order both application were disposed of by learned Single Judge holding that there was a prima facie case made out for issuance of injunction, balance of convenience was in favour of plaintiff who would suffer irreparable loss if evicted from the premises during pendency of the suit.

4. We have heard learned counsel for the parties and were taken through the record. Learned counsel for the defendant/appellant vehemently contended that the learned Single Judge acted with material irregularity in exercise of his jurisdiction in granting the injunction against the defendant/appellant restraining it from exercising its lawful right to evict the plaintiff/respondent in accordance with the provisions of law. No order of restraint could have been imposed upon the appellant not to seek eviction of the defendant in accordance with law. Learned counsel for the plaintiff/respondent on the other hand has tried to support the impugned order contending that the parties are bound by the terms of lease. In terms of the same the plaintiff did exercise its option to have the leave reserved before expiry of the lease by sending at least six letters. The plaintiff has been ready and willing to perform its part of the contract. It was within the right of the plaintiff to claim a decree for specific performance of the agreement since the defendant had failed to perform its part of the contract. The plaintiff has resorted to a legal remedy to enforce its right which is available in law. In case ultimately the suit is decree and injunction is not granted as prayed the entire purpose of filing of the suit will be frustrated thereby depriving the plaintiff of the benefit of the decree.

5. We have given due consideration to the submissions made at the bar.

6. Learned Single Judge while granting injunction against the defendant/appellant proceeded to observe that at this stage only a prima facie view has to be taken. The provision of the Act which creates a bar in a Civil Court entertaining any suit or proceedings of the nature, as envisaged therein come into play if the eviction of any person in unauthorised occupation is sought for. Learned Single Judge proceeded to observe that in the instant case because of the renewal clause in the lease deed under which there would be a renewal for a further period of five years on an increase of rent at a minimum of 25% plaintiff would entitle the plaintiff to continue occupying the premises and in case rent so increased was not acceptable the defendants were free to claim any reasonable rate at which rent was to be paid for the renewal period, which the defendant had not done so far and since it was the plaintiff who had to exercise his right to claim renewal which had been so exercised there was prima facie case for restraining the defendant from dispossessing the plaintiff.

7. There is no manner of doubt, as was urged by learned counsel for the plaintiff/respondent that the suit of plaintiff/respondent for a decree for specific performance prima facie would be maintainable and plaintiff might be entitled to file such a suit but the said question alone would not be sufficient to grant injunction prayed for. Question before the Court was whether the plaintiff was entitled to seek an order of injunction against the defendant restraining it from seeking plaintiffs eviction in accordance with law. In order to answer that question reference deserves to be made by us to a decision of Supreme Court in Life Insurance Corporation of India v. Shiva Prasad Tripathi and Ors. 1996(1) UJ (SC) 231. Shiva Tripathi was an employee of Life Insurance Corporation of India and in that capacity was allotted premises owned by Life Insurance Corporation. On expiry of the tenure of service Tripathi was required to vacate the premises. On failure to do so the Estate Officer of the Corporation took out proceedings under the provisions of the Act. Ultimately an order of eviction was passed by the Estate Officer which was challenged in appeal by Tripathi which failed. A plea was raised by Tripathi before the Appellate Court that he was a tenant in the disputed premises, having security of tenure. Said plea was not entertained and the matter was left at large. Tripathi challenged the order by filing writ petition in Bombay High Court which granted relief to Tripathi taking the view that the question of tenancy pertains to property which plea was adjudicable before a court or a competent authority and that court or authority could issue an injunction or an interim direction and no bar could be erected to stop it towards the grant thereof. In these circumstances, the High Court directed that the Judge, Small Causes Court shall adjudicate on the question of tenancy, when raised by Tripathi in the suit and such court in that event would be able to issue any interim order of injunction which Tripathi may be found entitled to. In that view of the matter the eviction order passed by the Estate Officer and the order of dismissal of appeal by the appellate authority were directed to remain under suspension till decision of the application for an interim relief was filed before the Judge, Small Causes Court. This decision of Bombay High Court was challenged in the Supreme Court. Supreme Court set aside the order of Bombay High Court holding that a suit for injunction to negate the orders of the two authorities stood barred under the provisions of the Act. The legislative mandate was that the court by order cannot obstruct the execution of the orders passed by the Estate Officer and the appellate authority. The court's power, otherwise to adjudicate on the question whether a person was a tenant or riot in no way has been taken away. Such adjudication, however, would be declaratory in nature and may sequally end up in a consequence but nothing interim is obtainable.

8. In the instant case the effect of the impugned order of restraint is and would be that the defendant/appellant is debarred from enforcing the order of Estate Officer passed under the provisions of the Act which we are informed is under challenge before the appellate authority. This precisely has been prohibited in the decision of the Supreme Court aforementioned. No such restraint could have been put on the defendant/appellant not to dispossess the plaintiff/respondent. The only restraint which could have been put on the defendant/appellant would have been not to dispossess the plaintiff/respondent otherwise then in due course of law. While granting, injunction interest of both the parties has to be properly weighed. In case the plaintiff has a right to maintain an action against the defendant so would the defendant be entitled to maintain a lawful action against the plaintiff. In case the defendant in a lawful action would be in a position to seek eviction of the plaintiff/respondent there will be no balance of convenience for grant of injunction, as prayed for. Learned Single Judge did not consider this aspect of the case and for that reason the impugned order is liable to be modified.

9. Consequently the appeal is allowed. The impugned order passed on 4.9.2000 & 4.5.2000 by learned Single Judge is modified to the effect that the defendant/appellant shall stand restrained from dispossessing the plaintiff/respondent otherwise then in due course of law.