Smt. Urmila Devi Jain vs Sh. Shorey Lal And Anr.
2002 Latest Caselaw 530 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This petition filed under Article 227 of the Constitution of India has challenged the order of an Additional Senior Civil Judge dated 22.1.1996 by which he has partially allowed the interlocutory injunction application of the respondents (plaintiffs) and has restrained the petitioner from using the disputed latrine and bathroom on the second floor of the premises except by herself and he members of her family during the pendency of the suit.

2. Briefly, the facts are that the two respondents have filed a civil suit for permanent injunction against their landlady, the petitioner for restraining her, her agents and servants from using the latrine and bathroom, shown in the site plan, annexed to the petition situated (SIC) the second floor of property No. 105, Darya Ganj, Delhi. Their allegation is that plaintiff No. 1 is a tenant in a portion of the second floor since 1943 and plaintiff No. 2 became the tenant in another portion at the same flor in 1947 and that both of them are using the common amenity of latrine and bathroom existed there from the inception of their tenancy. There is another room on the second floor used as barsati/store which was in occupation of the owners and was used only occasionally otherwise it remained closed. The petitioner filed eviction cases against the plaintiffs which are pending. She had five latrines and five bathrooms on the ground floor and first floor of this building which is in her possession. In order to cause harassment to the respondents and compel them to vacate, she has lodged four servants in the room on the second floor, who have started using the common latrine and bathroom which was in the exclusive use of the plaintiffs for the last ten days (suit was filed in 1989). Respondent No. 1 is living in the tenanted premises with his family and respondent No. 2, who is advocate, is residing in his accommodation and is also having his professional office there.

3. Along with the suit, an application for ad interim injunction is filed in which allegations, more or less, similar to the main suit were made. It was prayed that by ad interim injunction the petitioner and her servants may be restrained from using the common latrines and bathroom situated at the second floor.

4. Both the suits and the application were resisted by the petitioner. In the written statement it was contended that the property in question was purchased by the petitioner in 1974 and since then the petitioner and her family have been residing on the ground floor and the first floor and that they are also in possession of a room on the second floor. It is averred that the latrine and the bathroom on the second floor is for common use of all the persons residing on the second floor including the servants of the petitioner who were living in the room which is with the petitioner. She also stated that there were three combined latrines and bathrooms on the ground floor and one separate latrine and one bathroom on the first floor but the petitioner belonged to a family of status and it will not be possible for her to allow her servants to use any latrine/bathroom on the ground floor and the first floor. It is prayed that the suit should be dismissed. The application was contested on similar grounds.

5. The learned Civil Judge dismissed the application holding that there was no prima facie case in favor of the petitioner and the balance of convenience was also not in favor of the grant of injunction and they were also not going to suffer irreparable injury if the injunction was refused. The respondents assailed the order in appeal before the learned Additional Senior Civil Judge. The learned Additional Senior Civil Judge in the impugned order was of the view that the respondents were tenant on the second floor right from 1943/1947, much prior to 1974 when the property was purchased by the petitioner and that the petitioner had latrines and bathrooms on the ground floor and the first floor in their occupation. He also held that the respondents were living on the second floor with the members of their family and that a good prima facie case was made out in favor of the grant of interlocutory order of injunction in favor of the respondents and the balance of convenience was also in favor of the respondents and the respondents would suffer irreparable loss in case the servants of the petitioner were allowed to use the latrine and the bathroom to the annoyance of the respondents and the members of their family. He, accordingly, set aside the order of the learned Civil Judge. But on the concession mae by the counsel for the respondents that the respondents had no objection if the petitioner and the members of her family used the common latrine and the bathroom on the second floor, he restrained the petitioner from using the disputed latrine and the bathroom on the second floor excepting by herself and the members of her family, during the pendency of the proceeding.

6. The petitioner is aggrieved and has filed the present petition.

Counsel for the petitioner has argued that there is only one latrine and one bathroom on the second floor which is in use of all the persons residing on that floor. It is submitted that respondent No. 1 is in possession of a portion of the second floor and respondent No. 2 is occupying another portion of the second floor as tenant. One room on the second floor is in possession of the petitioner right from the date this property was purchased by her in 1974. Ever since she purchased the property, her servants had been using the common bathroom and latrine on the second floor along with the respondents and the members of their family etc. Counsel for petitioner also submitted that although the respondents raised objection to the use of the common latrine and bathroom on the second floor by the servants of the plaintiff, who are residing in the room at that floor, but no objection has been made by them to similar use of this amenity by the servant of respondent No. 2. It is contended that no prima facie case is made out nor is there the balance of convenience in favor of the grant of ad interim injunction and that the respondents will also no suffer irreparable injury if the ad interim injunction is refused in this case.

7. On the contrary argument of counsel for two respondents is that the room which is in possession of the owner of the property used to remain locked or only used occasionally by the owners ever since the respondents became tenant in 1943 and 1947 respectively. It is submitted that the servants of the petitioner started using the latrine and bathroom on the second floor only 10 days before the instant suit was filed in 1989. It is submitted that the petitioner has kept four servants in the room on the second floor who are not properly dressed and are the source of embarrassment and annoyance to the respondents and women of their family. He pointed out that respondent No. 1 is living with his daughter-in-law and the grant-daughter whereas respondent No. 2 is an advocate and has his office also in this premises. It is further submitted that the electricity meter of respondent No. 2. He urged that the petitioner/owner had five latrines and five bathrooms at the ground floor and the first floor and that her servants could conveniently use any of those bathrooms and latrines there. He justified the order of the learned Additional Senior Civil Judge, impugned on this petition.

8. I have given anxious and careful consideration to the submissions made by the parties at the bar. The petitioner is the owner and in possession of the ground floor and the first floor of the property. On the second floor the two respondents resided the tenant. Besides a room there is in the possession of the petitioner. There is one latrine and one bathroom. It is admitted case of the respondents that the latrine and bathroom are used as common amenity by the two respondents. In fact, it has not been specifically stated that the petitioner/owner, if she herself or any member of her family resided in the room on the second floor, were not entitled to use the common latrine and bathroom. On the other hand at the hearing counsel for respondents agreed that he petitioner and the members of her family may use the common latrine and the bathroom on the second floor. It is anomalous to argue then that while the petitioner and the members of her family could be allowed to use the latrine and bathroom on the second floor any other person like guests or servants of the petitioner who lived in that room would not be entitled to enjoy that amenity. The respondents have agreed to the user of the latrine and bathroom by the family of the petitioner. They cannot object to the user of the common bathroom and latrine by other legal occupants at the second floor. May be the way the servants of the petitioner, who live in that room, cause some inconvenience and embarrassment to the two respondents as respondent No. 1 lives with his daughter-in-law and grand-daughter. But if it is so, it is the obligation of the petitioner to ensure that no such inconvenience or annoyance is caused to the tenants by her servants.

9. Grant of an interlocutory injunction during the pendency of the suit is a matter requiring the exercise of the discretion of the court. The consideration which should weigh with eh court in deciding the application for grant of ad interim injunction are well settled now. They are (1) whether the petitioner has made out a prima facie case meaning thereby that there is a bonafide contention between the parties or a serious question to be tried; (2) whether the balance of convenience is in favor of the petitioner, that is to say, whether it would cause greater inconvenience to the petitioner if the ad interim injunction is not granted than the inconvenience to which the affected party will be subjected if it is granted; and (30 whether the petitioner would suffer irreparable loss and injury if the prayer for grant of temporary injunction is refused. All these three considerations must be conjointly satisfied before the order of an ad interim is passed by the court. Testing the above propositions of law on the fact of this case it can indeed be stated on prima facie view of the matter that there is a bonafide contention to the tried in this case. But it is difficult to say that the respondents will be put to greater inconvenience if the ad interim injunction prayed for is declined than to the inconvenience to which the petitioner in this case would be subjected to if the interlocutory order of injunction was granted. Furthermore, it can also not be stated that the respondents would suffer irreparable loss or injury if the temporary injunction prayed for was not granted at this stage. The servants of the petitioner are living at the second floor in the room which had always been in possession of the owner. There is only one latrine and bathroom which is being used as a common amenity by the tenants, respondents No. 1 & 2, including the servant of respondent No. 2. The respondents dispute the rights of only servants to use the latrine / bathroom in dispute. Allowing the servants of the petitioner to use this amenity till the dispute between the parties is settled would not cause greater inconvenience to the respondents or cause irreparable loss or injury to the respondents for which interlocutory injunction is necessary. Simply because the petitioner had three latrines-cum-bathrooms at the ground floor and one latrine and one bathroom on the second floor, it cannot be stated that the should be asked to allow her servants to use one of the latrines and bathroom which are under the use of her family on the first floor and on the ground floor.

10. For the reasons stated above, I find that the learned Additional Senior Civil Judge exceeded his jurisdiction and exercised it erroneously. His order suffers from illegality and material irregularity in the exercise of the jurisdiction while granting the injunction. Therefore, it will be appropriate for this court to intervene in this order in exercise of its power of superintendence over the Subordinate Courts vested by Article 227 of the Constitution of India.

11. For the reasons stated above, the impugned order dated 22.1.19963 of the learned Additional Senior Civil Judge is set aside and the application of ad interim injunction submitted by the respondent is dismissed.

The trial court record be sent back immediately. Parties shall appear before trial court on 22.5.2002.

However, it is made clear that none of the observations in this case shall be construed to be an expression of the opinion of this court on any of the matter in controversy between the parties at the trial or final disposal of the case. In the peculiar facts and circumstances of the case, the parties shall bear their own costs.