D.R. Khanna, J.
(1) An important question which arises for determination is whether a lease granted in favor of a company with a stipulation that the demised premises is to be used for the residence of a particular employee of the company, and none other without the express approval of the landlord, permits the company to induct another employee for residence there when the former has left or ceased to reside there.
(2) This has arisen in a lease granted by Mrs. Aruna Gupta in favor of M/s. Usha Sales Ltd. on 27th January 1981. One of the clauses agreed upon was as under :
'THEaccommodation will not be used for the residence of any other officer than Mr. L.L. Jain unless this has been agreed to by you' (the landlady). It concerned the first floor of property bearing No. 99 Anand Lok, New Delhi).
(3) There is no dispute that L.L. Jain resigned from the service of Usha Sales Ltd. and relinquished charge on 5-5-1982. He thereafter left the rented premises and removed his house-hold articles. The telephone of the company however continued to be installed there. Some furniture provided by the company to the employee was also stated to be still there. The company then planned to induct another officer into the premises and this was resisted by the landlady. She purported to enter into the. premises and shifted the furniture etc. of the company into an adjoining garage or premisea.
(4) The Usha Sales Ltd. then brought this suit on 13th May 1982 for permanent injunction restraining the landlady from obstructing it, its employees and representatives from going to and using the premises, and disturbing the possession of the company. Along with the suit an application for interim injunction was moved on which notice was given to the landlady. On her appearance in Court and opposing the application, an order was made on 27th May, 1982 to the effect that the plaintiff company was entitled to the interim injunction restraining the defendant from not allowing it to use the first floor of the prem ses unless it was lawfully evicted there from. It was noted that once it was accepted that the tenancy was between the landlady and the company, and the Delhi Rent Control Act was applicable, the proper course for eviction was to have recourse to its provisions. The user. of the premises was* treated as one of the incidence of the tenancy, and in case the company starting misusing the premises or allowed it to be used by a person other than the one agreed upon the landlady could seek its eviction in accordance with law. That would not it was next observed permit her to take the law into her own hand and enter into possession or obtain that from L.L. Jain who was a mere employee of the tenant company. While not expressing any opinion on the controversy as to whether the furniture of the company was still lying in the demised premises, as was asserted by the company or had been shifted to the garage on the ground floor, as had been asserted by the landlady, it was ordered that since the tenancy had not till then been lawfully determined, the landlady could not restrict the company from using the premises though the latter was obliged to use the same in terms of the agreement only.
(5) On the next day an application was moved by the landlady (1.A. 2260 of 1982) in which it was stated that on the preceding night there was and apprehension of breach of peace at the spot as the company had attempted to induct another employee in the demised premises for residance. This it was contended could not be as it was obliged to honour the commitment made in the tenancy agreement. So far as its re-occupying the premises, no objection was raised. This reoccupation was in fact done by the company on the morning of 28 the May, 1982. The Court issued notice of this application to the company and at the sametime observed that prima facie there appeared some force in the contention of the defendant landlady that so far as the user of the premises specifically agreed upon in the tenancy agreement, the same could be required to be abided. It was noted that the defendant had sought this aspect in the order made on 27th May, 1982, as there was likelihood of some breach of peace.
(6) Now the plaintiff company has appeared and vehemently contested the limitation so imposed in the said order. It is urgrd that the same almost amounts to review of the earlier order. In case the defendant had felt aggrieved by that order, the proper remedy available to her was to have gone in appeal.
(7) I have heard the parties and given my utmost consideration to the entire circumstances. At the outset it may be mentioned that this controversy has arisen as an interim measure to be operative during the pendency of the suit. The suit itself will receive trial in due course.
(8) I am unable to accept the contention of the plaintiff company that the order dated 28th May, 1982 went beyond the scope of the order made on the preceding day or was in conflict with the same or amounted to its review. So far as allowing the possession to remain with the plaintiff company and restraining the defendant landlady from obstructing or interfereing in the same, they were upheld and the company was allowed to resume and continue in possession. In case the landlady wanted to dispossess the company, the proper remedy was noted to be by way of recourse to the provisions of Delhi Rent Control Act. At the sametime there was aclear observation in that order that the company too was obliged to use the premises in terms of the lease agreement only. In the order dated 28th May, 1982 thereforee when the plaintiff company was required to abide by the user of the premises as had been specifically agreed to in the tenancy agreement, there was no additional order being made or modification effected. It could also not be treated as a review of the earlier order. It was more as a matter of full clarification lest there be likelihood of breach of peace.
(9) When the plaintiff company approached the Court for an interim order protecting its possession without hinderence over the demised premises and the Court allowed it relief pending the final disposal of the suit, it was competent to impose condition that it should as well ahide by the terms of the lease and honour its commitment made therein. There was thereforee nothing unusual if protection of the rights of the defendant-landlady in this regard was at the sametime allowed. Corresponding obligation available in favor of the defendant could as well be required to be adhered to. Order 39 Rule 2 of the Civil Procedure Code . permits a Court to grant an injunction restraining the defendant from committing a breach of a contract or any other injury of any kind. The Court while granting such injunction can impose such terms as it may consider fit.
(10) The terms of the lease unequivocally clarified that the demised premises would be used for the residence of L.L. Jain only and of no other officer of the company unless agreed to by the landlady. There was thus a specific prohibition. This was rather one of the conditions for obtaining the lease which the plaintiff company proposed in the letter written to the landlady and she was required to sign the same in approval if she accepted the contents of the letter. The landlady actually did so. The company had thus of its own volition and fully understanding the implications thereof agreed to this stipulation. I do not prima facie see why it should not be obliged to abide by the same and honour it even as an interim measure. The over all impact of this document prima facie left little doubt that though the lease had been obtained by the company, it was for the specific purpose of the residence of its particular employee. There was nothing unusual in the same as big companies do provide facility of residence at their expense to their employees and obtain lease in the companies' names for their benefit. The employees themselves do no directly enter into lease agreements last personal obligations under the same ensue on them. Thus the formalties of leases are left over to be between the companies and the landlords. This precisely what appears to have happened in the present case also. It is difficult to accept in such cases that big companies are like ordinary helpless destitute tenants who because of their economic limitations have to bow before dictates of greedy land- lords.
(11) So far as the eviction part of the company-tenant is concerned, it is to be in accordance with the provisions of the Delhi Rent Control Act. The company is entitled to remain in possession till lawfully evicted. However, this remedy by way of eviction which may take its time cannot prima facie preclude the landlady from asserting that if the company wants to have the luxury of retaining the possession, it can do so on duty honouring the commitment made in the lease. Such right can be exercised in a civil action as well. Thus learned S.K. Kapur, J. of the Punjab High Court observed in the case of Om Prakash Mongia v. Lekh Raj Aggarwal 1966 (2) DLT 219 that there is a lot of force in what has been sought on behalf of the landlord that the legislation could not have intended to compel him to sue in all cases for ejectment irrespective of his wishes in the matter. A landlord would be well within his rights to say, 'I will bind a particular tenant to his contract and compel him to carry out his obligations and pay the rent.' That was a case where the landlord had brought, a suit for the recovery of rent and the tenant had pleaded in defense that the suit was not maintainable in civil court as the proper remedy for the landlord was to seek ejectment of the tenant on the ground of non-payment of rent. The learned Judge observed that he was not prepared to hold that the jurisdiction of the civil courts was barred implicably. The question of implied bar really did not arise because there was no provision in the Rent Control Act entitling a landlord, not wanting to eject a tenant to lay a claim before the controller for rent.
(12) Similar controversy again arose before J.D. Jain, J. of this Court in the case of Permeshwari Dass v. Bhola Nath reported as Air 1981 Delhi 77. A landlord had brought a suit for permanent injunction seeking restraint of the tenant from reconstructing or effecting structural changes in the demise premises. The learned Judge found them as amounting to a breach of the obligations existing in favor of the landlord under the terms of the lease. The contention of the tenant that equally efficatious remedy available to the landlord was by way of eviction was not accepted and it was held that suit for injunction was maintainable.
(13) As observed by the Allahabad High Court in 1949 All. 301 Municipal Board Malawa v. Radha Balabh and the Lahore High Court in the full bench decision of Municipal Committee Montgomari v. Master Sant Singh Air 1940 Lah 377, the mere fact that the plaintiff could seek recovery back of the tax realised by the Municipal Committee on the ground that it was unauthorised would not be enough to deprive him of his right to file a suit for injunction. An equally efficatious remedy does not prevent a suit for an injunction where the invason is immediate and unavoidable. In the present case the landlady cannot bring a suit for injunction in the Court of the Rent Controller requiring the tenant to abide by the undertaking given in lease. The matter can further be clarified by taking recourse to the example of a property held by an owner under a perpetual lease from the Government. That perpetual lease may require the user of the property for particular purpose only) and any violation thereof may email forfeiture of the perpetual lease. The owner if subsequently lets out the property to a tenant imposing the same condition about user, and finds later that the user is altogether changed with the result that the Government threatens to forfeit the perpetual lease in case the misuse is not forthwith stopped, he can as Well by a civil action seek restraint of the tenant and require him to forth with stop the misuser, notwithstanding the availability of remedy by way of ejectment, last his perpetual lease itself is put an end to.
(14) I am thereforee of the considered opinion that the limitation imposed in the orders dated 27th and 28th May, 1982 while allowing interim relief to the plaintiff company deserves to be extended till the final decision. in this suit.
(15) Before concluding reference may briefly be made here to another circumstance. That was that the defendant-landlady had brought a suit in the court of a Sub Judge for an injunction to the effect that the company should not induct any other employee in the premises. In that suit an application for interim injunction was moved and notice of the same was issued to the tenant-company. That court did not issue any interim injunction. before the issue of the notice. However before the tenants could be served, the landlady withdrew the suit on 27th May 1982 by moving an application. under Order 23 Rule I Civil Procedure Code . It was mentioned therein that L.L. Jain who was the tenant of the defendant had handed over possession of the premises to her and thereforee the suit had become infructuous in the light of the said development. The suit was thereforee dismissed as withdrawn. No permission to file fresh suit on the same subject-matter was sought for or given.
(16) According to the plaintiff-company, the said withdrawl of the suit should preclude the landlady in this suit from seeking the same relief. In my opinion however the bar imposed by Order 23 Rule I applies to suits and not to defenses. See in this respect the decision reported as Radhey Sham v. Mohd. Nasirkhan . Moreover according to the landlady the cause of action and subject matter for her has changed in the present case inasmuch as the plaintiff company has now re-entered the premises in terms of the order dated 27th May, 1982. The cause of action in the earlier suit had lapsed when possession had been delivered to her by L.L.Jain. I am thereforee of the opinion that the withdrawl of that suit does not prevent the imposition of the limitation on the plaintiff-company as mentioned in the orders dated 27th and 28th May, 1982.