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ChaIn Raj Mehta Vs. Smt. Shanta Shukla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 459/1979
Judge
Reported in1980WLN100
AppellantChaIn Raj Mehta
RespondentSmt. Shanta Shukla
DispositionPetition allowed
Cases ReferredShri Ram Maroti v. Narayan
Excerpt:
.....illegally or with material irregularity.;in my view the act of a landlord disallowing a tenant a telephone connection amounts to an interruption in holding the property by the lessee during the term of his lease.;under clause 'c' of section 115 of code of civil procedure a revision is competent where the subordinate court has acted in the exercise of its jurisdiction illegally or with material irregularity. as already discussed by him above int he present case the lower appellate court has acted in the exercise of its jurisdiction illegally or with material irregularity in refusing to grant temporary injunction in favour of the petitioner.;(b) civil procedure code - order 39 rules 1 & 2 temporary injunction--telephone connection is a necessary in big cities disallowing telephone..........situate at moti marg, bapu nagar, jaipur belonging to the respondent. the petitioner applied for a telephone connection at his residence and the district manager telephones. jaipur, on 12th march 1979, informed the petitioner that his department was ready to install the telephone but the respondent landlord was interfering in the tame as such the telephone could be not installed. in these circumstances the petitioner filed a suit for a permanent injunction restraining the defendant respondent not to interfere in the installation of the telephone connection in the residential portion of the petitioner in which he is residing as a tenant of the defendant landlord the petitioner also submitted an application under order 39 rule 1 & 2 read with section 151 c.p.c, for temporary injunction.....
Judgment:

N.M. Kesliwal, J.

1. This civil revision under Section 115 CPC. is directed against the orders of the learned Additional District Judge No. 5, Jaipur City dated 11th September, 1979 and the learned Munsif and Judicial Magistrate No. 2 Jaipur City, dated 31st March, 1979 refusing to grant temporary injunction in favour of the petitioner.

2. The petitioner is a Chartered Accountant and is a tenant in certain premises situate at Moti Marg, Bapu Nagar, Jaipur belonging to the respondent. The petitioner applied for a telephone connection at his residence and the District Manager Telephones. Jaipur, on 12th March 1979, informed the petitioner that his department was ready to install the telephone but the respondent landlord was interfering in the tame as such the telephone could be not installed. In these circumstances the petitioner filed a suit for a permanent injunction restraining the defendant respondent not to interfere in the installation of the telephone connection in the residential portion of the petitioner in which he is residing as a tenant of the defendant landlord The petitioner also submitted an application under Order 39 Rule 1 & 2 read with Section 151 C.P.C, for temporary injunction directing the defendant respondent not to interfere in the installation of telephone CONNection during the pendency of the suit. The application was opposed by the defendant inter alia on the ground that the installation of telephone connection was necessary for the residential use of the premises by the petitioner of there was no agreement made by the defendant landlord in this regard with the petitioner that she would allow the plaintiff to it install 'telephone connection in the premises. It was also pleaded that as the plaintiff was requiring the telephone connection in order to contact his clients he can do so only at his office premises which are situate at a different place and he can not convert the residential portion for hit office use. The learned Munsif dismissed the application filed by the plaintiff by his order dated 31st March, 1979 The order of the learned Munsif was upheld by the learned Additional District Judge also by his judgment dated 11th September, 1979. Hence this revision by the plaintiff.

3. The case involves a very important question of general importance. So far as the facts of the case are concerned, there is no dispute between the parties. The learned Additional Distract Judge has decided the question of prima facie case, irreparable loss, and balance of convenience against the plaintiff petitioner on the question of prima facie case the view taken by the Sower Courts is that in order to use the residential premises in a peaceful manner it was not at all necessary for the plaintiff petitioner to talk to his clients for professional work He further held that prima facie the plaintiff had no right under Section 105 of the Transfer of Property Act to take telephone connection in order to use the disputed premises in a peaceful manner. As regards the question of irreparable loss the lower appellate Court took the view that the plaintiff can get his telephone installed in his office promises so that his name may not be removed from the list of persons who are given the new telephone connection. As regards the question of balance of convenience the lower appellate Court held that firstly, there was no prima facie case in favour of the plaintiff end then if the telephone connection was not installed at his residence, it would not cause any inconvenience to the plaintiff in the use of the premises for residential purposes. Though the plaintiff may get inconvenience in his professional work but that had DO importance in the present suit

4. Mr. Surana, the learned Counsel for the petitioner, contended that the view taken by the lower Court was totally erroneous. In the present day mode of living the telephone connection has become one of the necessities of life. The telephone connection should be treated as part with other amenities of life like electric and water connections. It is submitted that the petitioner is a Chartered Accountant & has obtained the sanction for telephone connection after four years and it is absolutely necessary not only for his professional work but site for his personal use. It is submitted that the telephone shall be utilised at the residence of the petitioner not only for professional work but for calling a doctor if any member of the family falls ill or for talking with other relations who are residing at distant places in jaipur City. Thus, it was wrong on the part of the lower Courts to take the view that the telephone is rot required for the use of the premises for residential purposes. it is also submitted that in case the petitioner is not allowed to install the telephone connection at his residential premises, it would came an irrepairable loss to him in as much as the petitioner will have to lose the chance and will have to apply for such connection afresh which will again lake several years in obtaining the sanction. Toe petitioner has already a telephone connection in his office and as such the lower Court was not justified in observing that he may have this connection also in his office if he does not want to lose the chance. It is also submitted that the question of balance of convenience was clearly in favour of the petitioner in as much as there was already line of telephone connection in other parts of the building and there would be no damage at all to the building as the line can be given through a ventilator. In support of this submission learned Counsel has also filed a site plan of the property as directed by an order of this Court dated 15-10 1979. Reliance is placed on Duryo singh Das v. Dr. Pramilabai Bhandarkar: : AIR1959MP191 in which it was held that a refusal by a landlord to give consent to install electric connection in the promises would make it unfit for the purpose for which it was let and this amounts to breach of covenant.

5. Mr. Datt, appearing on behalf of the defendant respondent vehemently contended that the grant or refusal of temporary injunction was within the discretion of the lower courts. Both the lower Courts have exercised a discretion in favour of the defendants-respondent after considering all the three ingredients of prima facie case irreparable loss and balance of convenience in favour of the defendant-respondent and a discretion exercised judicially in favour of a party cannot be interfered by this Court in the exercise of its revisional powers even though there might be an error of fact or law. It is submitted that their Lordship of the Supreme Court in a series of decisions have painted out the limited jurisdiction of the High Court under Section 115 CPC. and now there was no scope for taking any other view Reliance in this connection is placed on the Managing Director (MIG) Hindustan Aeronautics Ltd., Brlengar, Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Brlenagar Hyderabad : (1972)ILLJ170SC , in which it was observed as under:

In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not she case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity That being so, the High Court could not have invoked its jurisdiction Under Section 115 of the Civil Procedure Code' See the decisions of this Court in Pandurang Doni v. Maruti Hari jadhav : [1966]1SCR102 and Housing & Construction Co (P) Ltd., New Delhi v. Sarup Singh (1970) 2 SCR 360 : AlR 1971 SC 2324.

6. Reliance is also placed on the following observations in the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and Anr. : [1977]2SCR10 :

In Mechelec Engineers and . : [1970]1SCR435 ; D.L.F. Housing & Construction Co Pvt. Ltd., New Delhi v. Sarup Singh : [1970]2SCR368 ; The Managing Director (MIC) Hindustan Aeronautics Ltd., Balangar, Hyderabad v. Ajit Prasad Tarway : (1972)ILLJ170SC . We direct the attention of the learned Judge concerned to the law declared by this Court.

7. In Syed Mohd Mosin Rizai and Ors. v. State of U.P. and Ors. : AIR1979All234 , it was held as under:

This Court cannot, therefore in exercise of its jurisdiction Under Section 115 CPC correct errors of fact or law, however gross they may be unless It has relation to the jurisdiction of the Court whose order is impugned. It is not the case of the plaintiffs that the trial Court had no jurisdiction to pass the order which it had passed. It is also not the case of the present applicants that the learned District Judge had no jurisdiction to entertain and decide the appeal. No question of jurisdiction or defect of procedure is thus involved in the case. It is not shown that the Court below have ignored any relevant provision of law or even any relevant fact. The grant of interim injunction is a discretionary relief. Thus it is that the discretion must be exercised reasonably and not arbitrarily or capriciously, Hence, if it is not made out that the Courts below have acted arbitrarily or with caprice in refusing to grant interim injunction, their discretion shall not be lightly Interfered with under Section 115, Code of Civil Procedure, It was pointed out in (Wazir Sundar Singh v. Musammnat Farida Khanam AIR 1920 PC 132 that the mere 'possibility of the appellate Court coming to a different conclusion on the same facts and evidence will not justify interference in revision. In the case in hand the applicants have failed to make out that the Courts below have acted illegally or with material irregularity in the exercise of jurisdiction. Having reached the conclusion that the plaintiffs have not made out a prima facie case and even on the ground of balance of convenience & irreparable injury, the plaintiff would cot be entitled to the interim relief sought for by them, the trial court refused to exercise the discretion in their favour. On appeal the learned District Judge also declined to interfere with that discretion. In my view, the discretion has not been exercised arbitrarily capriciously or illegally. I, therefore, see no reason to interfere with the impugned orders.

8. It was also held in Narayan Swarup and Ors. v. Shanker Lal and Sens (P) Ltd. and Ors. :

A preliminary objection has been raised on behalf of the non-petitioner No. 1 that no revision is maintainable in as much as there is no question of jurisdiction Involved In the case. The learned Counsel for the non-petitioner No. 1 has, in this connection placed strong reliance on Hari Shanker v. Girdharilal Chowdhury AIR 1963 SC 698; Abbasbhai Aamahomed v. Gulambhai Safibhai AIR 1964 SC 134; Shri Ram Maroti v. Narayan jaram AIR 1953 Nag 286.

It Is well settled by a series of decisions of the Supreme Court that under Section 115 of the Code of Civil Procedure the High Court's powers arc limited to see who their in a case decided, there has been an assumption of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction The right there is contused to jurisdiction and jurisdiction alone.

9. It is next submitted that the telephone connection at the residence of the petitioner cannot be considered as one of the necessities and in the absence of any agreement between the parties, the petitioner cannot compel the respondent to allow the petitioner to install a telephone in the premises let out for residential purpose exclusively It is further submitted that in case the petitioner is allowed to install a telephone in pursuance to an order of interim nature it would virtually amount to the decree of the suit itself. It is also argued that the petitioner has shown the necessary of telephone connection for his professional use only i.e for consulting his clients and as such by taking the connection at his residence, he would be converting the residential premises for his officer use and which would be converting the residential premises into business premises.

10. We have to consider the question of installation of a telephone connection in the present days of mode of living and all round advancement of means of communication and the present day hazards of society. One cannot lose sight of the fact.that Jaipur City has grown in population to nearly one million one has to cross a distance of more than 15 Kms. for going from me end of she City to another end. The facility of telephone connection can be no stretch of imagination be said to be a luxury in these days, but it has become a necessity for those who can afford to pay for it. It is al1 the more necessary for professional persons like Doctors, Lawyers, Chartered accountants, etc It is like wise necessary for the businessmen. For a professional man like the petitioner the telephone connection is necessity not only at the office but at the residence also at least is active like Jaipur A professional man cannot remain in his office all the time and it is necessary for him to keep in contact with the, clients at his residence also. That apart, it cannot be said that a telephone connection taken at the residence will not be taken in private u e and will only be utilised for professional purpose. I see force in the contention of the learned Counsel for the petitioner that the telephone can be utilised at add hours for calling a Doctor or for talking on some urgent matters with the relations & friends It can avoid the necessary of calling upon the friends and relations personalty and many problems can be solved by merely talking on phone If a tenant can have a right to install electric and water connection. I see no reason why a tenant can be deprived of installing a telephone connection at the promises let out to him I fail to understand as to how the landlord is going to be affected in any manner if a tenant install a telephone connection in the promises let out to him except when in any particular case it might cause nuisance to the landlord. It is well known fact that in almost all big cities in India one gets a telephone connection after a long number of years and that shows that it has become a growing need of a citizen in a big city to have a telephone connection. Travelling in a big city is itself a problem & much of it can safely be avoided by the use of a telephone. It has neither been seriously argued nor held by the lower Courts that by the installation of telephone in the suit promises the building should in any manner be damaged. The distinction pointed out by the lower appellate Court is that the use of the telephone by the petitioner with his clients who were not members of his family, had no connection whatsoever with the residential use of the premises in a peaceful manner, is wholly unreal and perverse, If a telephone connection is taken by the petitioner at his residence it will be a use by him for the purpose of residential use of the promises, I fail to understand that even if it is used by the petitioner for talking with his clients how can it be said that it had no connection with his right of residing in the premises and using the premises for residential purpose. Thus if the lower Courts have decided the case on a view which is wholly perverse is would be an exercise of its jurisdiction illegally or with material irregularity. If the approach of the lower Court was wholly wrong and contrary to the well established principles as contemplated under Section 108 of the Transfer of Property Act that the lessor shall be deemed to contract with the lessee that if the latter pays the rent reserved by she lease and performs the contract binding on the lessee he may hold she property during the time limited by the lease without interruption In my view the act of a landlord disallowing a tenant & telephone connection amounts to an interruption in holding the property by the lessee during the term of his lease A temporary injunction is to be granted in favour of a person if he proves a prime facie case in his favour, balance of convenience and an irreparable loss in case the injunction is nos granted in his favour In deciding the question of prima facie case, the learned lower appellate Court has given a finding which is altogether perverse and also against the right conferred on a lessee under Section 106 of the Transfer of Property Act As regards the question of irreparable loss I am clearly of the view that if the petitioner is not allowed to get the telephone installed at his residence at this stage, and if he ultimately succeeds in the suit, which in the present state of circumstances is bound to take a few years, cannot be measured in terms of money and the petitioner cannot be compensated adequately The reason given by the lower appellate Court in this regard that the petitioner can get one more connection in his office is.absolutely erroneous. The petitioner is already having a telephone connection at his office and to ask him to have another connection at the same place would be ridiculous, That apart, the nature of the use telephone connection at the residence is entirely different from its use at the office premises.

11. Taking the point of balance of convenience if the petitioner is allowed to install the telephone connection at his residence it is not going to put any loss to the respondent landlord and in case the petitioner ultimately fails in the suit, the connection would be removed from the residence but if the petitioner is not allowed such connection at his residence during the pendency of the suit then it is bound to cause inconvenience to him which cannot be remedied subsequently. The decisions of the Hon'ble Supreme Court relied upon by the learned Counsel for the defendant-respondent are distinguishable. It is no doubt correct that this Court is not entitled to interfere under Section 115 C.P.C unless there is an error of jurisdiction committed by the lower Court, However under clause 'C of Section 115 of Code of Civil Procedure a revision is competent where the subordinate Court has acted in the exercise of us jurisdiction illegally or with material irregularity. As already discussed by me above in the present case the lower appellate Court has acted in the exercise of its jurisdiction illegally or with material irregularity in refusing to gave temporary injunction in favour of petitioner.

12. In the result, this revision is allowed, the orders of the lower Courts are set aside and the defendant-respondent is directed not to make any interference in the installation of the telephone connection in the suit premises, ln the facts and circumstances of the case the parties ate left to bear their own costs throughout.


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