Amar Singh and others vs Amrit Lal

M.S. Liberhan, J.—The short question (sic) in this appeal it whether a suit for injunction is maintainable in view of section 10 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ''the Act'') conferring a right on the tenants to seek restoration of amenities enjoyed by him, if the same are cut off or withheld by the landlord.

The factual matrix is that the plaintiff filed a suit for permanent injunction against the defendants restraining them from obstructing the passage of the plaintiff and his sweeperess through the main street and the common passage shown as point ''A'' in the site plan annexed with the plaint. The plaintiff claimed to be a tenant under Smt. Daljit Kaur widow of Shiv Singh. The house was alleged to be tacitly demarcated by way of a partition between defendant Amar Singh and the landlord Smt. Daljit Kaur. The plaintiff''s predecessor was inducted as a tenant by Smt. Daljit Kaur in the premises in dispute and the plaintiff continued to be the tenant after the death of his predecessor in respect of the portion marked blue in the site plan. The tenanted premises were of four rooms and one kitchen with court yard. The common passage to the courtyard was through the door at point ''A'' from the main street. It was jointly used by the plaintiff, his sweeperess as well as the defendants. The sweeperess used to pass through the said passage after cleaning the latrine on the first floor in occupation of the plaintiff. There was a wooden staircase placed in the courtyard for going to the first floor near the door of the southern room in occupation of the plaintiff. This was the only passage available to the sweeperess to go and come for cleaning the latrine on the first floor of tenanted premises. The plaintiff claimed the acquisition of a right of easement by prescription.

The defendants controverted the allegations. Plaintiff''s tenancy under Daljit Kaur was only admitted. It was averred, except for four rooms and one kitchen, another portion of the house was let out to the plaintiff; the premises in possession of the plaintiff abutted on the main road; the plaintiff had been using the doors of the portion which abutted on the main road for his sweeperess''s ingress and outgress. The plaintiff''s right to use the door in dispute was denied. The suit was alleged to be bad for non-joinder of necessary parties. The following issues were framed:-

Whether the site in dispute is a passage and the plaintiff has a right to use the same? OPP

Whether the plaintiff is entitled to the relief of injunction as prayed? OPP

2-A. Whether the plaintiff has acquired right of easement by prescription as alleged, if so, its effect? OPP

Relief.

The courts below came to the conclusion that the site in dispute was a passage and the plaintiff had right to use the same, though no right of easement by prescription vested in the plaintiff. The plaintiff was found to be entitled to the relief of injunction.

The only contention raised by the learned counsel for the appellants is that suit for injunction in the civil court is not maintainable inasmuch as the plaintiff could maintain an application u/s 10 of the Act. The provisions of section 10 of the Act read as under:-

Section 10(1): No landlord shall, without just or sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant.

(2) A tenant in occupation of a building or rented land may, if the landlord has contravened the provisions of this section make an application to the Controller complaining of such contravention.

(3) If the Controller on enquiry finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without just or sufficient cause, he shall make an order directing the landlord to restore such amenities.

It is contended that the right to passage going to latrine on the first floor of the demised premises is an amenity under the Act and the only remedy to enforce the right to the said amenity is by approaching the Rent Controller under the provisions of the Act. The learned counsel for the appellants has relied upon Jiwan Dass v. O.P. Josh 1977 (2) R.L.R. 648. Sri Ram Pasricha v. Jagannath and others AIR 1976 S.C. 2235, Smt. Bal Kaur and others v. Chander Parkash 1979 (2) C.J. 523, and Mathura Dass v. Smt. Ram Piari 1982 (1) R.L.R. 222.

Admittedly, the defendants have neither claimed in written statement nor in evidence, that there is relationship of landlord and tenant between the plaintiff and the defendants. Rather it is specifically admitted that the relationship of landlord and tenant exists between Baljit Kaur and the plaintiff. The counsel has submitted during arguments, defendants being co-owners, there being no express partition of the property in dispute, defendants shall be deemed to be landlords.

The Act defines a landlord as under:-

landlord means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit, of any other person or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and every person from time to time deriving title under a landlord.

It is admitted, the plaintiff is not liable to pay rent to the defendants nor the defendants are entitled to receive any rent. No privity of contract has been established between the plaintiff and the defendants. Nothing has been pointed out that any relationship of landlord and tenant has been created by operation of any statute between the plaintiff and the defendants. No plea was raised by the defendants accepting the plaintiff to be tenant under them. The plaintiff never went to trial accepting the relationship of landlord and tenant amongst themselves. There cannot be any relationship of landlord and tenant between plaintiff and defendants.

So far as Jiwan Dass''s case (supra) is concerned, this is a case of co-landlord seeking ejectment on the ground of non-payment of rent. There was no dispute that the ejectment could be sought by the co landlord and the liability to pay rent to one of the co landlords was the controversy settled.

Sri Ram Paricha''s case (supra) was again a case of its own facts and it does not lay down the proposition convessed by the appellants that a co-owner shall be a landlord solely on the basis of his title. The only question decided in the judgment was that the tenant could not deny the title of a co-owner who had created tenancy or had inducted him as tenant. It is necessity of the co-owners for which the ejectment can be sought. The law laid down in the judgment is not in dispute here.

In Mathura Dass''s case (supra), again the controversy was only to the effect whether one of the many co landlords alone could maintain the ejectment application without impleading the other co-landlords as party. So there was no dispute with respect to the relationship of landlord and tenant nor it was so determined.

In the absence of factual plea that there was relationship of landlord and tenant between the plaintiff and the defendants, the controversy cannot be determined.

Even otherwise, prima facie a co-owner cannot create tenancy on the premises on behalf of other co-owners without their consent. No relationship of landlord and tenant can be created except when the parties are ad idem or by operation of law. Here, admittedly neither of the modes for creating tenancy has been pleaded or proved. The remedy u/s 10 of the Act is only available to a tenant against the landlord. The plaintiff cannot seek the remedy before the. Rent Controller having exclusive jurisdiction with respect to the right and liabilties of the landlord and tenant, against a third person.

Section 10 envisages the restoration of amenities which have been cut off or withheld. It does not provide any remedy of injunction by way of restraining a person from interfering in amenities.

The learned counsel for the appellants contends that in view of specific provisions of section 10 of the Act, the remedy of a suit by way of injunction is barred and drew my attention towards Smt. Bal Kaur''s case (supra). In my view the judgment cited, does not lend any support to the contention raised by the appellants inasmuch as u/s 12 of the Act, a specific right has been conferred on the tenant to get the premises repaired and the provisions of section 108(f) of the Transfer of Property Act were found to be not applicable to the State of Punjab. Here, in view of my above observations, there was no relationship of landlord between plaintiff and the defendants and the injunction is being sought against a third person. There was no bar under the Act for maintaining the suit.

Even otherwise, the civil court''s jurisdiction cannot be presumed to be barred unless and until it is either expressly or impliedly barred. Nothing has been pointed out to me that the civil court jurisdiction is either impliedly or expressly barred by the Act in granting injunction even against the landlord. The civil court has jurisdiction to restrain the defendants from interfering in enjoyment of the amenities by the plaintiff.

However, the learned counsel for the appellants contends that the observations made in this judgment may not adversely affect the rights of the appellants in seeking partition. Since the co-owner is not a party to the suit, the observations made in this judgment shall not affect the right of the appellants qua the co-owner in any other proceedings.

In view of my foregoing observations, the answer to the question raised in this appeal is in the affirmative. The appeals fails and is dismissed. No order as to costs.