Satpal Verma vs Paramjit Kaur

Jawahar Lal Gupta, J.

The suit of the plaintiffrespondent for a permanent injunction restraining the defendant from carrying on business of running a school/college on the first and second floors of ShopcumFlat No. 35, Sector 23, Chandigarh, was decreed by the learned trial Court. The appeal filed by the defendant having been dismissed, he has approached this Court through the present second appeal. On May 18, 1994, the sole appellant passed away. C.M. No. 607C/1997 was filed on January 30, 1997, to implead his legal representatives. By a separate order of date, this application was allowed.

Mr. Gill, learned counsel for the appellants, has contended that the Courts below have erred in granting an injunction. Learned counsel has referred to the provisions of Section 41 of the Specific Relief Act, 1963, to contend that an injunction cannot be granted "to prevent a continuing breach in which the plaintiff has acquiesced". It has also been suggested that such a relief is not admissible when an equally efficacious relief can be obtained by any other mode or proceeding or when the conduct of the plaintiff has been such as to disentitle her to the assistance of the Court. Learned counsel has referred to the Full Bench decision of this Court in M/s. Ram Gopal Banarsi Dass v. Satish Kumar, (19852)88 PLR 457 (FB). The claim made on behalf of the appellants has been controverted by the learned counsel for the respondent.

The sole question that arises for consideration is did the plaintiff acquiesce in the breach committed by the appellants.

A perusal of the plaint shows that the plaintiff had prayed for the issue of an injunction on the ground that the defendant had "started using the premises for running an academy/school/college which was not permissible under the rules and the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, and the rules made thereunder. It was specifically pleaded that the premises had been let out for the purpose of residence. The defendant had filed a written statement. It was not pleaded that the plaintiff had ever become aware of the running of school/college/academy or that she had in any manner acquiesced in this breach. Even when the parties were leading evidence, the plaintiff''s mother Kamal Parkash Kaur who was also her attorney had appeared as PW1. It was not even suggested to her that there was acquiescence in the defendant''s running of an educational institution in the residential premises. The defendant did not appear as a witness before the Court. However, his son who is also his special attorney and is now one of the appellants had appeared as D.W.1. He stated that the premises in dispute had been taken on rent by his father in January, 1966. No rent note had been written. However, the building had been taken on rent for the purpose of running the National College. In his crossexamination, he admitted that in the year 1966, his father was working as a Clerk in Punjab School Education Board. He remained in service till the year 1975 when he had retired. He had not taken permission from his employer for running a college. However, Mr. Gill has not been able to refer to any suggestion in the written statement or the evidence that the plaintiffrespondent had at any stage acquiesced in the running of an educational institution in the demised premises.

A perusal of the pleadings as well as the oral testimony of the witnesses shows that it had neither been pleaded nor stated on oath that the plaintiff had ever acquiesced to the running of a college in the demised premises. In the absence of a specific plea, the objection raised by the learned counsel for the appellants on the basis of section 41(g) cannot be sustained. Equally, it cannot be said that the injunction should be denied because the plaintiff had the remedy of initiating proceedings under the Rent Restriction Act. Still further, nothing has been pointed out to show that the conduct of the plaintiffrespondent was such as to disentitle her from claiming the assistance of the Court. Acquiescence is a question of fact. At least some evidence indicating acquiescence should be there. In the present case, there is neither the plea nor any evidence. Consequently, the contention is wholly lacking in merit. It cannot be accepted. It may also be mentioned that no such plea had either been raised before the trial Court or the appellate Court. In the circumstances of the case, no ground for interference on the basis of section 41 is made out.

In fairness to Mr. Gill, it may be mentioned that he had placed reliance on M/s. Ram Gopal Banarsi Dass''s case (supra) to contend that the relief of injunction cannot be granted in a case covered by section 41(g). There is no quarrel with the proposition enunciated by their Lordships of the Full Bench of this Court. However, it is the case pleaded that has to be found. It appears that no plea based on section 41 having been raised and no evidence indicating acquiescence having been produced, the decision of their Lordships in M/s. Ram Gopal Banarsi Dass''s case (supra) is of no help to the appellants.

It may also be mentioned that the appellants have admittedly been in possession of the premises since January, 1966. A period of 33 years has already elapsed. In the meantime, the respondent has been put to sufficient expense on account of pending litigation. Even her right to own the building has been threatened by the order of resumption passed by the Chandigarh Administration. Mr. Gill states that a writ petition has been filed by the appellants challenging the order of resumption which is pending. Mr. Sarin has pointed out that even the respondent has filed a writ petition challenging the order of resumption. This only shows that not only the parties had been litigating before the civil Court but even before this Court under Article 226 of the Constitution. The owner of a building normally expects some income out of his/her investment. In this case, it only seems to have brought inconvenience and expense. Since the appellants have remained in occupation of the premises for a period of more than three decades and at a rent which was rather low, there is no equity in their favour which may call for any interference in the second appeal.

No other point has been urged.

Accordingly, there is no merit in this appeal. It is consequently dismissed. In view of this order, C.M. No. 13C/1997 filed by the plaintiff respondent for vacation of the ex parte order passed on January 25, 1983, has become infructuous. It is accordingly disposed of. The plaintiffrespondent shall also be entitled to her costs which are assessed at Rs. 5000/.