1. This appeal is instituted by the plaintiff-appellant in 0. S.No. 595 of 1980 on the file of the Tenth Additional City Civil Judge, Bangalore and is directed against the order passed by him or) 1. A, No. I in the suit rejecting the prayer for temporary injunction during the pendency of the suit.
2. It is the case of the plaintiff-appellant that he is the tenant of suit premises in which he is running a printing press under the name and style 'Hosali Press (P) Limited'. It is his case that he had a right of way to the press through a 'cutcha' road, which reaches the main entrance of the press. It is his further case that he was bringing articles required by the press through vans, cars and trucks by this road and according to him feelings became strained between the landlord and tenant as an application for eviction was instituted against the tenant by the landlord-defendant for eviction. It is the further case- of the plaintiff-appellant that with a view to harass the plaintiff and the landlord has been trying to block the 'cutcha' road leading to the main entrance by putting up a shed actually on the 'cutcha' road itself, thus obstructing substantially the path leading to the press, as also the business of the plaintiff carried on in the premises. Having instituted the suit for a permanent injunction to restrain the defendant from thus obstructing the quiet enjoyment of the premises, the plaintiff instituted an application for temporary injunction, in the suit. The trial court was pleased to issue notice on the said application and the defendant on entering appearance resisted the application. The same was heard by the trial court. Parties filed affidavits and a Commissioner was also got appointed by the plaintiff and the Commissioner submitted his report along with the sketch. The trial court appreciating the material on record came to the conclusion that the plaintiff had a path leading to his press and as such it was not necessary to issue any temporary injunction order during the pendency of the suit. Accordingly, the trial Court dismissed the 1. A. by its order dated 27-11-1980. Aggrieved by the said order the plaintiff has come up in the above appeal before this Court.
3. The learned Advocate appearing for the appellant contended that the trial court materially ignored the report of the Commissioner and failed to appreciate that the defendant was actually trying to put up a shed on the road itself, thus substantially obstructing the road leading to the press and in turn obstructing the business of the tenant and his right of quiet enjoyment of the promise. Thus, he submits that the order of the trial court was perverse and hence appeal should be allowed and the temporary injunction issued by this court should be made absolute.
4. It may be mentioned that as soon as the appeal was admitted this Court was pleased to issue a temporary injection order on I. A. I. submitted by the appellant before this court in the following terms:-
'It is just and proper to issue a temporary injunction restraining the respondent/defendant from Proceeding with the further construction of the building till this appeal is Heard and decided by this court. 1, therefore, allow L A. 0. and direct the issue of a temporary in, junction restraining the respondent/defendant from proceeding with the further construction of the building detailed in the schedule to 1. A. I.'
5. The learned Advocate appearing for respondent in the appeal argued supporting the order passed on L A, No. I by this trial court. He, further submitted that an order granting or refusing interim injunction order being essentially in the discretion of the trial court, the appellate court should be slow in interfering with such discretionary order.
6. The sole point, therefore, that arises for my consideration in this appeal is -Whether the trial court was justified in refusing the interim injunction order in favour of the Plaintiff in its discretion?
7. It is no doubt true that the discretionary order Passed by the trial court like an order issuing or refusing to issue an interim injunction order, should not be lightly interfered with by the appellate court merely because it is possible for the appellate court to come to a different conclusion on facts. It is equally settled, however that if the trial court has not used its discretion judicially and has acted perversely without taking into Consideration the entire material an record, it is the duty of the appellate court to correct the order of the trial court.
8. In the instant case, the suit is for permanent injunction to restrain the defendant from obstructing the plaintiffs quite enjoyment of the suit premises by the tenant. The covenant for quiet enjoyment is one of the covenants that run with the land and the tenant or the lessee has the right to enjoy the premises quietly and peacefully so long as he is not evicted in due course of law. That concept is incorporated in our law by provision made in S. 108(c) of the T, p. Act which reads:
'The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lease, he may hold the property during the time limited by the lease without interruption.'
Mulla in his commentary on the T. P. Act, Sixth Edition, at page 689 speaking on this aspect states 'Covenant for quiet enjoyment - The Covenant implied by t3fis section is the absolute covenant expressed in an English lease. The express covenant of an English lease is either (1) absolute or unqualified, or (2) restricted or qualified-' This is explained in the following passage from the judgment of Mookerjee, J., in the case of Naorang Singh v. Meik, (AIR 1923 Cal 41):-
'This provision (clause (c) of S. 108) secures for the lessee the benefit of an unqualified covenant for quiet enjoyment. A qualified covenant for quiet enjoyment protects the lessee against interruption by the lessor, his heirs and assigns, or any other person claiming by or under him, them, or any of them, whereas an unqualified covenant protects the lessee against interruption by the lessor, his heirs and assigns or by any other person or persons whomsoever. The covenant, in the unqualified form covers the case of interruption by the superior landlord or other person claiming by title paramount exercising a power of re-entry, or otherwise, dispossessing the lessee.'
Woodfall in his book Landlord and Tenant, Vol 1 at page 574 in para 1329 has observed that an action on the covenant for quiet enjoyment may be maintained for the disturbance of the right of way.
In the case of Owen v. Cadd ((1966) 1 QB at page 99) it is held that although, to constitute a breach of such a covenant there must be son e physical interference with the enjoyment of the demised premises, and the interference must be substantial, there could be a breach of such covenant without an actual physical irruption into or upon the demised premises an the part of the landlord or some person authorized by him.
9. It is thus obvious that the lessee has a right for quiet enjoyment of the premises let to him, in this case for carrying on his business of running a press. That includes inter alia the ingress to the press or the right of way. The action is maintainable for any disturbance to the right of way. The learned City Civil Judge appears to think that it was necessary for the plaintiff-appellant to prove that the way was also a part of the lease or demise. In the course of his order this is what he has observed:-
'He has not produced any document to establish that the entire open yard in front of his building and he has not produced any documents to establish that the entire open yard in front of his premises he had lease-hold right having been exercised by him or earlier by his predecessor in title.'
That is not obviously the correct approach to the facts of the case.
10. The simple point that arises for consideration in the suit as well as in deciding the application is as to whether the defendant by his action obstructed the right of quiet enjoyment of the plaintiff's leasehold premises in running his business.
11. The court obviously has not looked into the Report submitted by the Commissioner which formed part of the record. The Commissioner in his report has very clearly stated in para 6 thus:-
'The proposed building is being constructed in the centre of the cutcha road just in front of the entrance to the Hosali Press building Pillars have been put up in the said road in front of the northern main entrance to the Press building.'
Again in para 9 the Commissioner has observed:-
'There is a passage (Cutcha) running from the edge of the road North to South on the Eastern side of the press building. There is also a wooden gate in the passage. The width of the passage near the wooden gate is 10112 feet. Lot of grass have come up on either side of this passage. A visual observation of this passage reveals that there was no vehicular movement through this passage.This passage cannot be made use of for movement of light and heavy duty vehicles.
12. It is obvious by reading the order of the City Civil Judge that he has entirely ignored the report of the Commissioner. That, without more, goes to show that he has not used his discretion in refusing to issue the temporary injunction in a judicial manner and as such this is a fit and proper case wherein this court has not only the power but the duty to interfere with the order of the trial court.
13. By looking to the facts as also by reading the report of the Commissioner it becomes obvious that the pillars have been put on the 'cutcha' road leading to the main entrance of the press. Without more it is manifest that there is obstruction to the cutcha road. It is a matter of common knowledge that heavy and light vehicles are required to move to the press both to bring the materials and to take away the materials and if the pillars are installed on the cutcha road, it is obvious that there would be obstruction to the movement of vehicular traffic. Hence, it is- a clear case where there is an attempt, prima facie, made by the landlord to substantially obstruct the covenant of quiet enjoyment by the tenant of the suit premises, in running his press, as contemplated under S. 108(c) of the T. P. Act, it was the bounden duty of the trial court to issue interim injunction order to stop further construction of the shed or the building by the landlord. It is for that reason that this court was pleased to issue temporary injunction order as soon as the appeal was admitted when the application for temporary injunction order was made.
14. In the result, therefore, the appeal is allowed. The impugned order of the trial court is hereby set aside and the order of temporary injunction already issued by this court, as quoted above, is made absolute and continued till the final decision in the suit.
15. Appeal allowed.