Goverdhan Singh vs Mulkh Raj and another

Mian Jalal-ud-din, J.—This revision is directed against the order of the learned District Judge Jammu. dated 25-4-1972 confirming on

appeal the order of the Sub Judge (C. J. M.) Jammu granting temporary injunction in mandatory form permitting the plaintiff to reconstruct the

dismantled walls and doors of the shop in dispute.

A suit for permanent injunction brought by Mulkh Raj and others against Goverdhan Singh is pending in the court of Sub Judge (C. J. M.)

Jammu. The plaintiffs' case is that they are in possession of the shop held by them as tenants. The defendants are interfering with their possession

and in the peaceful enjoyment of the shop. They filed an interim application for grant of temporary injunction restraining the defendants from

interfering with the peaceful enjoyment of the property. A temporary injunction was issued subject to objections of the defendants. The defendants

filed an application for vacating the said temporary injunction. as according to them, the Government sought demolition of a portion of the shop

acquired by the Collector Jammu for public purposes. They also objected to the grant of temporary injunction on merits. The Court of Sub-Judge

after hearing the arguments in the application observed that it was evident as also from the order of the High Court that a portion of the shop in

question was to be demolished under the orders of the Collector Jammu. The plaintiffs are prepared for the demolition of this portion of the shop

but their fear is that in the garb of this demolition the defendants might not dispossess them from the shop in question. Considering this

apprehension of the defendants as genuine which was reinforced by certain facts raised in the objections filed by the defendants the trial court

ordered the demolition of a portion of the shop. The court further ordered that after the demolition the shop shall be made habitable so as to make

it safe for carrying on the business for which it has been held by the plaintiff applicants. The court further ordered that in case the defendants did

not reconstruct the wall and doors or pay the necessary amount for its construction the plaintiffs could do so at their own cost. With these

observations the temporary injunction was made absolute. On appeal before the District Judge, the order of the trial court was affirmed. The

learned District Judge observed that there was nothing wrong in the order under appeal as to call for any interference. The learned counsel for the

appellant could not make any alternate suggestion before him as to what order other than the one passed by the trial court could in the

circumstances of the case be passed.

Before me it has been contended on behalf of the defendants petitioners that the order of the trial court is without jurisdiction in as much as no

such order could be passed in the mandatory form in a suit for permanent injunction. It is. however, conceded before me that notwithstanding the

fact that a portion of area under the shop has been acquired by the Collector for public purposes the defendants would not disturb the possession

of the plaintiffs who are the tenants of the shop. The plaintiffs have no objection to the retention of possession by the tenants but they could not be

compelled to reconstruct the wall or to re-roof the shop in question: The order was beyond the scope of the suit. Reliance is placed upon Sharma

Electric Engineering Works Vs. Sm. Radha Debi, and page 187 and also on AIR 1963 Gui 160.

On the other hand it is sought to be established by the learned Counsel for the respondents that this was the only appropriate interim order that

could be passed by the court below in the circumstances of the case. After all it is the responsibility of the landlord to make the premises held by a

tenant habitable. He is under an obligation to provide accommodation convenient to the tenant so that his person and property are protected in the

premises. Interim injunction in the mandatory form can be issued by Court in order to maintain status quo that is what is exactly is sought by the

impugned order. Reliance is placed on Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, . AIR 1957 Trav. Co.286, R.K. Biswas Vs. The

Union of India (UOI) and Others, . AIR 1926 Sind 201 and on the provisions of Section 108 of the Transfer of Property Act and Section 27 of

the Jammu and Kashmir Rent Control Act.

The most important question that calls for decision in the case is as to whether the trial court was competent to issue interim mandatory

injunction asking the defendants to rebuild the wall and re-roof the house. In order to appreciate the position it is necessary to examine the

pleadings of the parties. The plaintiffs' suit originally was for grant of permanent injunction restraining the defendants from interfering with the

possession and peaceful enjoyment of the shop held by the plaintiffs as tenants. The averment made was that the plaintiffs are the tenants of the

defendants and that the latter with mala fide intention threatened to demolish the walls and dismantle the roof of the shop so that the plaintiffs may

be forced to hand over its possession to the defendants. The defendants were interfering with the peaceful enjoyment of the premises held by the

plaintiffs. An interim application was moved alone with the plaint. The trial Court ordered interim injunction directing the defendants not to interfere

with the peaceful possession of the property held by the plaintiffs. Later on in pursuance of the order of High Court that a portion of the land under

the shop was to be acquired by the Collector the order was modified. The High Court file reveals that in a suit for partition (pending in this very

Bench) an application was moved by the tenants before Hon'ble Jaswant Singh. J. with the twin prayer (i) that they may be impleaded as parties to

the suit for partition and (ii) that implementation of the High Court order dated 29-12-1971 permitting the defendants to demolish the building in

question. be stayed. The Hon'ble Judge vide his order dated 29-4-1972 observed that the plaintiffs could not be made parties to the suit, their only

interest could be that their tenancy is protected. This they could not achieve by becoming a party in the suit and they were asked to seek some

other remedy available to them under law. It was further observed in the said order that the earlier order of this Court was never intended to permit

the parties to extend the demolition to any portion not required by the Collector so as to make it impossible for the tenants to remain in occupation

of the portion other than that required for road widening. Consequent upon this order of the High Court the trial Court of Sub Judge (C. J. M.) on

the application of the tenants modified its earlier order of interim injunction. In partial modification of its earlier order the trial Court passed a

mandatory interim order asking the defendants landlords to make the shop habitable and reconstruct the wall after it was partially demolished as

required by the Collector for the purpose of widening of road. The Court further directed that in case the defendants non-applicants did not

reconstruct the wall and doors the plaintiffs could do it at their own costs. It is to be seen if the civil Court is vested with such a power.

That the Court in order to maintain status quo is competent to pass even a mandatory form of order at interim stage is well recognized. This

power can be exercised by the Court both under Order 39. R. 2 of C. P. C. and u/s 151. C. P. C. in order to advance the cause of justice.

Labu, A. C. J. in AIR 1926 Sindh 201 has held that the Court has power to grant an interim mandatory injunction under O. 39, Rr. 1 and 2 but

this power is to be used sparingly and each case should be decided on its own merit for this purpose.

In AIR 1957 Trav Co. 286 the view adopted is that the Courts have power to grant mandatory injunction on interlocutory applications. That

was a case for permanent injunction restraining the defendant tenant from using a room which had been let to him by the plaintiff as kitchen and

was causing nuisance to the tenants of the adjoining rooms. The defendant was sought to be restrained from using second room as verandah and

courtyard for stacking firewood. Pending suit the plaintiff moved for temporary injunction in aid of the permanent injunction relief which was

granted. During the pendency of the suit the door of room No. 1 was removed and also smoke tiles as this caused blockage in the passage. An

application was thereupon moved to the Court to compel the plaintiff to remove the blockage. The plaintiff in his objections submitted that the

Court had no jurisdiction to issue a mandatory injunction in the matter as prayed for. The trial Court granted the mandatory injunction. In the

revision before the High Court the jurisdiction of the trial Court and the impugned order was challenged but the High Court held that the plaintiff's

interference with due passage and smoke tiles in the roof, tended to discredit the temporary injunction order as it made the premises not habitable.

The Court below could under its powers grant mandatory order on the interim application.

Again in R.K. Biswas Vs. The Union of India (UOI) and Others, a Division Bench of the Court affirmed the order of interim mandatory

injunction passed in a suit for declaration. The trial Court had earlier passed an order of ad interim injunction but later on, on the application of the

plaintiff issued a mandatory injunction directing the defendants to do a particular thing as required by the order.

Again in Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, relied upon by the petitioner's counsel it has been conceded therein that a

mandatory injunction is granted only to restore status quo and not granted to establish a new state of things differing from stage which existed at the

date when the suit was instituted. Injunctions are a form of equitable reliefs and they have to be used in aid of equity and justice according to the

facts of each particular case.

Therefore it cannot be said that a Court has got no power to pass a mandatory injunction on an interim application should the circumstances of

the case warrant the adoption of such a course and this becomes necessary to preserve the suit property from being dissipated or destroyed or the

order is required to maintain status quo between the parties.

Sharma Electric Engineering Works Vs. Sm. Radha Debi, and AIR 1963 Gui 160 relied upon by the petitioners are distinguishable inasmuch

as in the first mentioned authority the question was decided with reference to Section 38 of the Houses and Rent Control Act of West Bengal

(which corresponds to Section 27 of our Act). The principle enunciated is that the landlord could not be compelled to undertake an

unremunerative repair works which may ultimately prove useless, and he cannot also be reasonably expected to undertake them to his own

prejudice.

AIR 1963 Gui 160 (Supra) was a suit for permanent injunction in which mandatory injunction was refused. But the facts of this authority are

different from the one which is before us.

In the instant case the plaintiffs after they filed suit for permanent injunction prayed that they be permitted to amend the plaint so that they could

bring a suit for mandatory injunction. This the plaintiffs stated, was necessitated because of changed circumstances. The Court invited objections

from the defendants. They agreed to the amendment. The Court therefore recorded an order on 17-2-1972 that as the defendants had no

objection in granting permission by the Court for filing amended plaint so permission was granted. On 23-2-1972 amended suit for mandatory

injunction was presented. During this interval the portion of the shop was dismantled because of widening of the road. This necessitated the re-

erection of wall and repairing of the roof in order to make the shop habitable, as the defendants were ordered to undertake the repair work but as

they refused to rebuild the wall and repair the roof and challenged the order of the trial Court the plaintiffs did it at their own costs.

The defendants' contention is that there is no obligation cast on them to rebuild the shop and in this context the order of the trial Court is

invalid. In my opinion this important question cannot be decided off hand without reference to the material which has yet to come on record. This is

also to be decided with reference to the covenants made in the rent note and in the absence of any such covenant with reference to the ordinary

law applicable to the case. In this case reference may be made to Section 108 of the Transfer of Property Act which lays down law regarding the

rights and obligations of the lessor and the lessee, and also Section 27 of the Jammu and Kashmir Houses and Shops Rent Control Act of 1966.

Now that a suit for mandatory injunction is awaiting trial in the Court below and the plaintiffs have executed the necessary repairs in the shop

and have made it habitable, therefore it would not be conducive to the advancement of justice to order the vacation of the impugned order as it is

likely to cause great hardship to the tenants in occupation of the premises. If the walls are ordered to be demolished and roof is dismantled it would

expose all the goods of the tenants in the shop to peril and put their business in jeopardy and disturb status quo. Moreover it is to be borne in mind

that the defendants are not against the holding of shops by the tenants in their possession. It has been unequivocally stated on their behalf at the Bar

that their possession would not be disturbed and that they could retain the possession of the shops as before. But how can the plaintiff tenants

retain possession of the shops if they have got no roof and no walls and are rendered uninhabitable? In view of this and in view of the fact that the

two courts below have exercised their discretion in favour of granting the mandatory injunction, it would be quite appropriate to let the order

remain in tact till the mutual rights and obligations of the parties are finally decided by the trial Court. The court below will also see whether the

plaintiffs have not under the cover of the court order made any encroachment on the landlords' rights and if this has been done it will afford

necessary relief to the landlords.

With these observations the revision petition is therefore, dismissed. I however make no order as to costs.