Bhal Singh Malik vs Dr. Nazar singh and another

Muni Lal Verma, J.—The lis pertains to House No. 29 located in Sector 2-A at Chandigarh (hereinafter called the House) which is in possession of Mr. Bhal Singh Petitioner. Or. Nazar Singh (Respondent No. 1) is its owner and Mrs. Dr. Nazar Singh is his wife. According to the Petitioner, the house was lei out to him in the year 1972 at monthly rental of Rs. 515/- by Dr. Nazar Singh and he had been in its possession as tenant under him since then. It was on April 24, 1975 that the Respondents along with their associates entered the house in absence of the Petitioner and made an attempt to raise construction (of the second storey) on the roof of the house. The wife of the Petitioner objected and she made report to the police, on whose intervention the Respondents and their associates retired. Once again on May 8, 1975 the Respondents and their associates dismantled the water tank existing on the roof of the house and inter-mendled with the other amenities available to him (the Petitioner). Dr. Nazar Singh then wrote to him (the Petitioner) that he would be commencing the construction of the second storey on May 16, 1975-). Therefore, on May 16, 1975 the Petitioner brought the suit for perpetual injunction restraining the Respondents from illegally dispossessing or interfering with his possession of the house and from starting the construction of the second storey. It was averred that the (the Petitioner was in lawful possession of the entire house including the roof of the ground floor and the stair-case as a tenant under Dr. Nazar Singh and the Respondents bad no right to interfere with the possession or to construct the second storey. Along with the suit the Petitioner moved an application under Order XXXIX, rules 1 and 2 read with Section 151 of the CPC (hereinafter referred to as the Code) for ad interim injunction restraining the Respondents from dispossessing him or interfering with his possession of the house and from raising any construction on the roof of the house. The averments made in the said application were identical with the allegations stated in the plaint. An ex parte ad intarim injunction to that effect was granted but on an application moved Dr. Nazar Singh the same was vacated and the ad interim injunction was declined and the aforesaid application under Order XXXIX, rules 1 and 2 read with Section 151 of the Code was dismissed. Dissatisfied with the said result, the petitions carried appeal which was dismissed by the learned Senior Subordinate Judge. Chandigarh (exercising enhanced Appellate Powers). Hence, the Petitioner filed this revision petition in this Court.

The facts, that Dr. Nazar Singh is owner of the house and its construction had been completed in or about the year 1964 when he took up an appointment with the Punjabi University, Patiala, as Professor and Head of the Department of Chemistry and he retired on March 5, 1974 ; that it was in the year 1972 when he had let out the house to the Petitioner at a monthly rental of Rs. 515/- and since then he (the Petitioner) had been in its possession and earlier to the year 1972 it had also been let out, to tenants including Miss Chand, are admitted. It is not disputed that the stair-case has not been constructed inside the house and is so built in between the garage and kitchen that one can ascend on the roof of the ground floor without entering into the built portion of the house. The real controversy between the parties is as to whether or not the said stair-case and the roof of the house formed part of the demised premises. According to the Petitioner, the said stair-case and the roof of the house were included in the dmised premises. Dr. Nazar Singh pleaded that the said stair-case and the roof of the house had not been let out to the Petitioner. Both the Courts below finding force in the plea raised by Dr. Nazar Singh, felt that the Petitioner had failed to make out a prima facie case and were of the opinion that he would not suffer any injury, much less irreparable, by non-grant of the ad interim injunction and the balance of convenience too weighed against him (the Petitioner) and, therefore, declined the ad-interim injunction to him. Undoubtedly, both the Courts below had the jurisdiction to record the orders passed by them. Therefore, the impugned order is unassailable on the point of jurisdiction.

Shri Gokal Chand, Learned Counsel for the Petitioner, contended that both the Courts below had acted with illegality or at least with material irregularity in the exercise of the jurisdiction vested in them in declining the ad interim injunction. Therefore, he attacked the same under Clause (c) of Section 115 of the Code On the other hand, Mr. R. S. Bindra, Learned Counsel for the Respondents relying on AIR 1949 156 (Privy Council) Keshardeo Chamria v. Radha Kissen Chamria AIR 1953 SC 22 and D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, argued that Clause (c) of Section 115 of the Code, does not extend to correction or errors of fact or of law. There can be no quarrel with the proposition enunciated by Mr R. S. Bindra. and it cannot be gainsaid, that while exercising jurisdiction under Clause (c) of Section 115 of the Code, it is not open to this Court to correct errors of fact, however gross or even errors of law. But, when the errors committed by the Courts below relate to breach of any rule of law or any established principle which affects the ultimate decision, it would tantamount illegality or at least material irregularity as contemplated by Clause (c) of Section 115 of the Code, ar,d this Court will not hesitate to correct the same. The grant of ad interim injunction is guided by three considerations, firstly, that the Plaintiff has a prima facie case ; secondly, that he would suffer irreparable injury if ad interim injunction is declined ; and thirdly, that the balance of convenience weighs in his favour. True, it is a discretionary relief and the Appellate Court or the Revisional Court would be slow to interfere with the order respecting the grant or non-grant of the ad interim injunction if the aforesaid discretion had been exercised judiciously, hut, when the said discretion has not been exercised by the Courts below in accordance with the principles governing the grant of ad interim injunction, it cannot be maintained that the aforesaid discretion had been exercised in a judicial manner and in such a case, this Court is competent to interfere. ''Prima facie case'' would imply the probability of the Plaintiff obtaining the relief sought for in the suit.

The case as put forth by the Petitioner, was that whole of the house including the roof and the stair-case which is between the garage and the kitchen alongwith the open space surrounding it had been let out to him and he had been in possession thereof since 1972. The plea of defence raised by the Respondent was that the roof of the house and stair-case were not included in the demised premises which had been let out to the petitoner. The Petitioner and Dr. Nazar Singh had sworn affidavit in support of their respective pleas. No rent deed was produced by either side. So, the question as to whether the stair case and the roof of the house are or not included in the demised premises is vital which can only be tried in the suit. It is the probability of a right which sustains an ad interim injunction and the Plaintiff cannot be called upon to produce evidence to establish his right to such an extent as to entitle him (the Plaintiff) to the relief sought for in the suit because that would amount to the decision of the suit itself. Roof is a part of a building especially when it is one storeyed and in absence of any contract to the contrary the initial presumption is that it (the roof) is let out alongwith the building Similarly, the said presumption extends to the stair-case of a one-storeyed building. Therefore, neither the trial Court nor the Appellate Court has given attention to these circumstances Toe circumstances and the material do not suggest that the claim put forth by the Petitioner is hollow and the probability of his right to claim an ad interim injunction is unjustified. At least, the pleadings of the parties and the affidavits swern to by the Petitioner and Dr Nazar Singh make out a case for maintaining the status quo till the decision of the suit. The structural design in ficating that the Respondent initially intended to erect two storeys when he constructed the house in the year 1953 or that he had now obtained sanction from the Estate Office to construct the second storey which baa weighed with the Courts below, not appear to have any relevancy respecting the extent of the demised premises which had been Jet out. The writing of the later by the Respondent on July 8, 1974 indicating his intention to construct the second storey to the Petitioner too cannot, in the absence of rent deed, be treated as a term of the tenancy. There fore, the approach of the Courts below in corning to the conclusion that the Petitioner was unable to make out a prima facie case was not in accordance with the established principles and is errone us too. Rather, the pleadings and the affidavit sworn to by the Petitioner go a long way to show that he has a prime facie case.

''Injury'' connotes an act contrary to law, resulting in an infringement of right vested in a person. ''Irreparable'' would mean injury which cannot be remedied by payment of money as compensation. The Petitioner is in possession of the house as a tenant since 1972 and according to him the stair-case and the roof of the house were included in the demised premises and the same have been in his possession since the the Respondent had been out of Chandigarh being employed with the Punjabi University, Patiala, and he had not been in possession, at least physical, of the roof and the stair-case of the house and he bad been letting out the house since 1964. Therefore, if the stair-case and the roof are taken to be part of the demised premises, the Petitioner had been in possession thereof as a tenant, the Respondent cannot take possession of the same i.e. the stair case and the roof of the house even for constructing the second storey, without the consent of the Petitioner or without seeking his eviction from there by having recourse to the provisions of the East Punjab Urban Rent Restriction Act, 1949. If the roof and the stair case were not included in the demised premises the Petitioner had been in its possession with at any right, then the Respondent has to evict him from there by hiving recourse to law and he canno disposses him from the roof and the stair-case by force. Therefore, interference with the Petitioner''s possession of the roof and the stair-case of the house by the Respondent without having recourse to law would tantamount to an infringement of right which to state precisely at this stags, is probable, and constitutes an injury. Now, if the Respondent is allowed to construct the second storey and the Petitioner succeeds ultimately in the suit, it would be difficult, rather impossible, to call upon the Respondent to remove the second storey and the Petitioner would lose possession of the roof as well as of the stair case for all times So, the aforesaid injury if allowed to be caused to the Petitioner at this stage, would be irreparable. It is pertinent to note that the construction of the second storey would not only deprive the Petitioner of the use of the roof and stair-case but he would also suffer the use of the passage through the open spice by the responding during the construction of the second storey and also when it is occupied by him. This would be an additional injury which would be caused to the Petitioner by denial of the ad interim injunction. The grant of ad interim injunction would delay the construction of the second storey and in the event of failure of the Petitioner in the suit it would not cause any irreparable injury to the Respondents. Mr. R S. Bindra contended that the Respondents had collected bricks at the site and also stored cement etc. and the delay in construction of the second storey would result in loss to the Respondents. The said contention is not, in my opinion, sufficient to deny the ad interim injunction because ; firstly the less, if any, caused to the Respondent due to delay in construction of the second storey would not be such an irreparable injury which would be caused to the Petitioner by refusal of ad interim injunction and secondly, the responsibility of storing the bricks at the site or storing the cement were the acts which were committed by Dr. Nazar Singh of his own accord. It may be noted that according to the Petitioner the bricks had been stored outside the house. At one stage of the arguments, Mr. Bindra had been of the view that the Respondent had taken possession of the stair-case and the roof-because he had raised construction on the roof of the house. I am unable to subscribe to that view. The Petitioner had taken objection as soon as the Respondent made an attempt to interfere with his possession of the roof and the stair case and he had instituted the suit. It was after denial of the ad interim injunction by the trial court that the Respondent appears to have raised some small walls on the roof of the house. The said act of the Respondent may amount to interference with the Petitioner''s possession of the roof and stair-case by the Respondents but would not constitute itself possession of the same by him (the Respondent).

Balance of convenience" requires that while considering the grant of ad interim injunction, it is necessary to see as to what would be the comparative mischief and inconvenience resulting from the refusal of such an injunction in relation to one and resulting to the other in the event of its being granted. It is only after a careful comparison between the inconveniences of the two sides that the Court can arrive at a judicial verdict. As discussed in the proceeding para, the non-grant of ad interim injunction would cause irreparable injury to the Petitioner if he ultimately succeeds in the suit. So, the balance of convenience favours the grant of ad interim injunction. This aspect of the case was not at all considered by the trial court or the lower Appellate Court.

Though it is difficult to define what is meant by "illegality " or "material irregularity" as mentioned in Clause (c) of Section 115 of the Code, yet I think there may be an illegality or material irregularity if the Court acts in disregard of some statutory enactment or some well-established principle. When a Court arrives at a decision contrary to the provisions of law or against the well established principles governing the matter it would be acting with illegality or material irregularity as contemplated by Clause (c) of Section 115 of the Code

It, thus, follows from the discission above, that the Courts below omitted to consider some essential aspects of the case and had arrived at the conclusion in declining the ad interim injunction to the Petitioner against the established principles governing the same. I would say that they had acted in exercise of the jurisdiction illegally or in any case with material irregularity, and the discretion vested in them had not been properly exercised by them. As to whether this Court had interfered with the orders of the Courts below in the matter of refusal of ad interim injunction in the exercise of the revisional powers suffice it to refer to Shri Ram Parkash Gupta Shri Wazir Chana 1971 R.C.R.79. In that case ad interim injunction had been declined by both the Courts below but the same was granted by this Court in the revision Petitioner.

For the reasons given above, the orders of the Courts below suffer from grave legal infirmities and the same cannot be sustained. The Petitioner is entitled to the ad interim injunction prayed for.

Consequently, I allow this revision petition, set aside the orders of the Courts below and grant ad interim injunction to the Petitioner restraining the Respondents from interfering with the Petitioner''s possession of the house and also from raising construction of the second storey on the roof of the house till the decision of the suit.

The record of the suit be at once sent back to the trial court and the parties have been directed to appear in the trial court on January 9, 1976. The trial Court will decide the case as expeditiously as possible even by giving priority over the other work. The Petitioner will produce his evidence and close his case on or before March 9, 1976. In case he fails So close his case within the said two months ending with March 9, 1976, the ad interim injunction would be deemed to be vacated If he closes his case on or before March, 9, 1976, the ad interim injunction would continue and it would be for the Respondent to produce his evidence and close his case to enable the Court to decide the suit finally. The costs of the revision will abide the result

Last there be any misunderstanding, I make it clear that whatever has been said above is limited for the disposal of the revision petition and would not be taken as expression of my views on the merits of the case I add for the sake of clarity that the trial Court would be at liberty to decide all the questions arising in the suit on the evidence and material to be produced by the parties independently of the decision of the revision petition.