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Dr. Daryaosingh Rao Vs. Dr. Pramilabai Bhandarkar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 114 of 1953
Judge
Reported inAIR1959MP191
ActsTransfer of Property Act, 1882 - Sections 108; Specific Relief Act, 1877 - Sections 55; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantDr. Daryaosingh Rao
RespondentDr. Pramilabai Bhandarkar
Appellant AdvocateK.A. Chitaley, Adv.
Respondent AdvocateG.M. Chaphekar, Adv.
DispositionAppeal allowed
Cases ReferredPirgonda v. Kalagonda
Excerpt:
- - the tenant complained that the poles which remained in front of his shop for eleven days interfered with the access of the public to the shop windows, and with his trade and sued the lessors for damages for the breach of the covenant for quiet enjoyment. but his omission to do so may well have been due to the fact that his suit is of a kind rare in india and not of common pleadings......to give consent to the bringing of the electric connection was a breach of the covenant for quiet enjoyment under section 108(c) of the transfer of property act and held that there was no obligation on the defendant towards the plaintiff which could be enforced by a mandatory injunction under section 55 of the specific relief act. the plaintiff has now filed this second appeal. 2. mr. chitale, learned counsel for the appellant, contended that there was an implied covenant under section 108(e) of the transfer of property act for quiet enjoyment of the rooms when the plaintiff took them on rent; that anything that interfered with reasonable use of the property was a breach of the covenant; that the use of electric energy for lighting or other domestic purposes was so reasonable and.....
Judgment:

P.V. Dixit, J.

1. In 1944 the appellant in the case took on a monthly rent of Rs. 21-8-0 two rooms located in the lower front portion of a house bearing No. 18 situated in Nandlalpura, Indore, from the then owner of the house. Subsequently the house was sold to the respondent Dr. Miss Bhandarkar in 1949 and thereafter the appellant became her tenant. The appellant, who belongs to the medical profession, keeps a dispensary and a laboratory in the rooms rented by him.

In 1948 he applied to the Indore Electric Power House for bringing electric energy in the rooms and deposited with the Power House the requisite fee. The Power House declined to grant this without the consent of the owner of the house. Thereupon the appellant approached the respondent to give the necessary consent. When she refused, the appellant instituted a suit claiming an injunction directing the respondent to give the permission and not to obstruct him in obtaining the electric energy connection from the Power House.

The respondent by her defence frankly pleaded that she did not wish to give any permission to the plaintiff for bringing electric energy in the rooms as the plaintiff was harassing her and damaging the rooms and that she wanted to get the premisesvacated as she needed them for her own use and further that she had filed a separate suit for ejectment against the plaintiff.

The learned Additional City Civil judge of Indore dismissed the plaintiff's suit holding that there was no electric energy when the plaintiff took the rooms on rent; that it was entirely at the will of the landlord whether to bring electricity on her promises for lighting and other purposes; and that the landlord could not be compelled to give this amenity. The plaintiff then appealed to the Court of the District' Judge of Indore.

The learned Additional District Judge, agreeing with the view taken by the trial Judge, rejected the contention of the plaintiff that the act of the defendant in refusing to give consent to the bringing of the electric connection was a breach of the covenant for quiet enjoyment under Section 108(c) of the Transfer of Property Act and held that there was no obligation on the defendant towards the plaintiff which could be enforced by a mandatory injunction under Section 55 of the Specific Relief Act. The plaintiff has now filed this second appeal.

2. Mr. Chitale, learned counsel for the appellant, contended that there was an implied covenant under Section 108(e) of the Transfer of Property Act for quiet enjoyment of the rooms when the plaintiff took them on rent; that anything that interfered with reasonable use of the property was a breach of the covenant; that the use of electric energy for lighting or other domestic purposes was so reasonable and natural that the refusal of the defendant in giving consent to the plaintiff to bring electricity on the premises rendered it impossible for the plaintiff to carry his business there; that, therefore, the defendant was under an obligation to accord consent to the bringing of electricity upon the premises; and that she could he compelled to give consent by an injunction under Section 55 of the Specific Relief Act.

In reply, Mr. Chaphekar, learned counsel for the respondent, said that the use of electric energy for lighting or any other purpose in the rooms was not an implied term in the plaintiff's tenancy; that, therefore, the refusal of the defendant could not be regarded as a breach of the covenant for quiet enjoyment; and that there was no obligation towardsthe plaintiff which could be enforced by a mandatory injunction.

3. In my opinion, the learned Judges of the Courts below did not fully appreciate the points of law and fact arising for determination in a ease of this kind. The trial Court decided the plaintiffs suit on a general issue as to 'whether it was the responsibility of the defendant to permit the plaintiff to get electric energy connection from the Power House.' The plaintiff is not claiming that under the terms of his tenancy the defendant is under a liability to provide him with electric installation and energy.

He is not asking the defendant to bear anyinstallation charges. His claim in essence is thatthere is an obligation on the defendant landlordnot to prohibit him from bringing electric installation and energy in the rooms at his own expenseand to give the consent required by the PowerHouse so as to enable him to have the electricenergy on the premises. The claim though not soexpressly averred in the plaint, is founded on thecovenant for quiet enjoyment embodied in Section 108(c) of the Transfer of Property Act and the defendant's plea that she does not wish to give consentas for some reasons she wants to get rid of thetenant is no answer to a claim resting on the covenant.

4. Now, Section 108(c) of the Transfer or Property Act says-

'In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased-

(a) ........... (b) ..........

(c) 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 lessee, ho may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

The covenant implied by this section is the absolute covenant expressed in an English lease land protects the lessee against interruption by the lessor, his heirs and assigns or by any other person or persons whomsoever. Two distinct questions ware, therefore, required to be considered; first, as to what is the meaning and effect of the covenant so far as is relievant here, and secondly whether the plaintiff has alleged and proved that the act of the defendant is a breach of the covenant as properly construed. The extent of the operation of a covenant for quiet enjoyment has been the subject of many English decisions. It is not necessary to refer to all those cases. It would be sufficient to refer to what Fry, L. J., said in Sanderson v. Berwick-upon-Tweed Corporation, (1884) 13 QBD 547 at p. 551. He stated :

'It appears to us to be in every case a question of fact whether the quiet enjoyment of the land has or has not been interrupted; and, where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor, or those lawfully claiming under him, the covenant appears to us to be broken, although neither the title to the fend nor the possession of the land may be otherwise affected.'

These observations of Fry, L.J., were quoted with approval by Lindley, L.J., in Robinson v. Kilvert,1889-41 Ch. D. 88. In that case the lessor had let out the upper part of a building for a paper warehouse and then installed a heating apparatus in a cellar. The tenant then sued to restrain the landlord from heating the cellar on the ground that the heat dried his brown paper and made it less valuable, though it was not such a heat as would injure paper generally. The landlord did not know at the time of the letting that the tenant was going to store any particular kind of paper which was liable to deteriorate by heat which would not hurt paper generally.

It was held that this did not interfere with the lessee's comfort or make the premises unfit for storing paper generally, but it affected a particular class of delicate paper which the lessee stored, and that this was not a breach of the covenant, for the lawful enjoyment of the house as a paper warehouse was not interefered with, and if the lessee required special protection he should have bargained for it. The dictum of Fry, L.J., in (1884) 13 QBD 547 was considered and approved in Owen v. Gadd, 1956-2 All ER 28. That was a case where the lessee covenanted to use the premises only for the purpose of retailing baby carriages, radio sets, accessories and toys.

Soon after the lease was granted scaffold poles were erected immediately in front of the windows and door of the lessee's shop by the lessors for carrying out certain repairs to the upper part of the premises. The tenant complained that the poles which remained in front of his shop for eleven days interfered with the access of the public to the shop windows, and with his trade and sued the lessors for damages for the breach of the covenant for quiet enjoyment. It was held that the purposeof the demise being that the premises should be used as a shop for retail sale of particular articles, the erection of the scaffolding constituted an interference sufficiently physical and direct to be a breach of the covenant for quiet enjoyment.

5. All these authorities establish the proposition that no act of a lessor can be regarded as anactionable breach of a covenant for quiet enjoymentunless it involves some physical or direct interference with the enjoyment of the demised premisesand that in determining whether the enjoyment ofthe premises has been disturbed or interfered one must look to the purpose for which the premises were granted.

Therefore, in the instant case, the questions to be considered were the purpose for which the rooms were rented out to the plaintiff and whether there has been a substantial interference or disturbance in the plaintiff's enjoyment of the rooms in relation to that purpose by the defendant's refusal to consent depriving the plaintiff of the use of electric energy in the rooms.

If the rooms were let out for locating a dispensary and a laboratory and if the effect of the defendant's refusal is to make the rooms unfit for that purpose, then there would be a breach of the covenant for quiet enjoyment and the plaintiff would be entitled to a mandatory injunction compelling the defendant to give the consent required by the Power House.

6. There is no evidence as regards the material questions indicated above. The absence of evidence is due to the fact that no issues were framed on this point as the plaintiff did not aver the necessary essential facts. Before me, an application has been now filed by the plaintiff for leave to amend the plaint by the addition of the statements that the rooms were let out to him for his professional work by Chhaganlal Atmaram, the previous owner of the house; that the use of electricity was essential to the plaintiffs profession; that the landlord knew this at the time of letting; and that bringing of electric energy in the rooms at the plaintiff's own cost was thus within the scope of the covenant for quiet enjoyment which the present defendant, as purchaser of the property, was under an obligation to permit.

7. Mr. Chaphekar, learned Counsel for the respondent, opposes the grant of leave on the ground of undue delay in the making of the application. I think the prayer for amendment must be granted. The plaintiff should have no doubt alleged these facts before. But his omission to do so may well have been due to the fact that his suit is of a kind rare in India and not of common pleadings. The proposed amendment does not after the character of the suit, nor does it in any way place the defendant at a disadvantage. On the test laid down by the Supreme Court in Pirgonda v. Kalagonda, (S) AIR 1957 SC 363, the plaintiff must be granted leave for the proposed amendment.

8. In the result, I allow this appeal, set aside the decisions of the Courts below, and remit the case to the original) Court for trial and disposal according to law after framing proper issues on the amended plaint and the reply which the defendant may file to it. Parties shall bear their own costs here and in the lower appellate Court. They shall appear before the trial Court on 10-9-1958 to take necessary directions for the progress in the suit


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