VIJENDER SINGH MALIK, J.
K.H. Hotels Pvt. Limited, the defendant No.1 is in revision before me, invoking the supervisory jurisdiction of this court under the provisions of Article 227 of the Constitution of India, against the order dated 15.6.2011 (Annexure P6) passed by learned Civil Judge (Junior Division), Chandigarh as well as the order dated 30.9.2011 (Annexure P8) passed by learned Additional District Judge, Chandigarh.
Krishan Kumar and others, the respondents have filed a suit for permanent injunction restraining the defendants, including their directors, managers, agents etc. from digging, raising construction, removing flooring, demolishing walls, damaging lintel or doing any other type of acts in the tenanted premises causing damage thereby to the same as also from violating the building bye-laws framed under the Capital of Punjab Development and Regulations Act (for short, “the Act”) as applicable to Union Territory of Chandigarh.
The defendant - K.H.Hotels Private Limited is a company registered under the Companies Act. It approached the plaintiffs to take on rent the premises of shop-cum-office (SCO) No. 17, Sector 26, Chandigarh (for short, “the leased premises”) for using the same as office and for purposes of trade contacts i.e., business and commercial purposes. After due negotiations, a registered lease deed dated 17.2.2010 came into being between the parties regarding the property for a period of 8 years, from 17.2.2010 to 31.3.2018. It was obligatory on the part of the defendants under the terms of the lease deed to abide by the terms and conditions of the lease deed as also the regulations framed under the Act. The leased premises had been constructed strictly in accordance with the plan as sanctioned by the concerned department of Chandigarh Administration. The defendants in utter violation of the terms and conditions of the lease deed started doing illegal and unlawful acts such as, digging out the back courtyard etc.
The plaintiffs reside in Sangrur and they visit Chandigarh rarely. Taking advantage of their absence, the defendants started doing all this. On 7.3.2011, the plaintiffs found the premises to have been extensively damaged. The defendant was asked not to do so, but to no effect and therefore, the suit was brought. Alongwith the plaint, an application under Order 39 Rules 1 and 2 CPC was brought seeking to restrain the defendants from doing the digging and construction work in the premises in question in contravention of the terms of the lease deed as well as the building byelaws framed under the Act.
The defendants resisted the suit as well as the application. They have also filed a counter claim seeking a decree for mandatory injunction directing the plaintiffs to sign and execute such papers/documents/building plans for the renovation of the basement and ground floor of the SCO, with regard to which there is agreement between the parties contained in the lease deed dated 17.2.2010. They have claimed that they were just making preparation for raising constructions for which they had prepared the plans and requested the plaintiffs to sign those plans so that they could be submitted before the concerned authorities for sanction. They have claimed that they have no intention to raise construction in violation of the terms of the lease deed or the building bye-laws framed under the Act. They have claimed that the plaintiffs have deliberately avoided signing the papers so that the defendants could be prevented from applying to the authorities for permission to raise the construction to make the leased property fit for use by the defendants for the purpose for which it was taken on lease.
They had also filed an application under Order 39 Rules 1 and 2 CPC seeking ad interim mandatory injunction directing the plaintiffs to sign the papers, documents etc. required for renovation of the basement and ground floor of the leased premises to which the plaintiffs have agreed in the lease deed dated 17.2.2010.
Hearing learned counsel for the parties, learned trial court allowed the application of the plaintiffs restraining the defendants from raising construction, demolishing walls, doing any type of digging and removing flooring etc. at the spot and thereby causing damage to the leased premises and building in violation of the building bye-laws framed under the Act till the decision of the suit, except in due course of law vide order dated 15.6.2011 (Annexure P6). However, vide the same order, learned trial court dismissed the application filed by the defendant. Aggrieved by the aforesaid order, the defendant filed a misc. civil appeal before learned District Judge, Chandigarh, which was heard by learned Additional District Judge, Chandigarh and vide order dated 30.9.2011 (Annexure P8), the appeal has been dismissed with costs.
I have heard Mr.Gaurav Chopra, learned counsel for the petitioner and Mr. Amarjeet Markan, learned counsel for the respondents. I have gone through the record carefully. Learned counsel for the petitioner drew my attention to Annexure P1, a copy of the lease deed, which is the basic document between the parties. According to him, this registered lease deed was executed on 17.2.2010 for a period of 8 years reserving monthly rent of Rs. 5,80,000/- for the first year with increase in rent per annum @ 7%.
According to him, a sum of Rs. 23,20,000/- was the refundable security agreed between the parties to be paid by lessee to the lessors. Learned counsel for the petitioner then drew my attention to clause (4) of the lease deed which lays down that this security deposit was equivalent to four months' rent. Whether the security amount has been paid or not is also a question arising in this revision petition and would be dealt with later.
Learned counsel for the petitioner then drew my attention to clause (11) of the lease deed where it is laid down that the lessee shall use the demised premises as office and for the purpose of trade contacts i.e. business and commercial purposes. Referring me to terms of clause (15) of the lease deed, where it is laid down as a duty of the lessee to properly keep and maintain the structure and exterior of the demised premises, learned counsel for the petitioner took me to clause (20) of the lease deed, which according to him, is very important for the decision of this petition. According to him, in this clause, the lessee has been given liberty to raise constructions and make additions and to install any fittings and fixtures such as air conditioners and other plants and equipments etc. According to him, the lessee would, however, be obliged under clause (21) to abide by the provisions of the Act and rules made thereunder in making the construction etc. He then took me to the terms of clause (25) of the lease deed whereunder the lessors were obliged to provide all papers/documents and to execute and sign all such papers and documents, which would be required by the lessee for obtaining proper sanctions and approvals for running the business of restaurant and bar.
Learned counsel for the petitioner has next submitted that after coming into possession of the leased premises, the petitioner wrote to the respondents requesting them to sign the documents attached thereto, which were required for constructions to be carried out in the leased premises. According to him, the respondents did not respond to these letters preventing the petitioner from using the leased premises inspite of the fact that the petitioner was under the liability to pay rent in a sum of Rs.5,80,000/- per month. The respondents on the other hand filed suit for restraining the petitioner from even doing the preparatory work for making addition and alteration in the building in question, which were required for using the same for the purpose it was taken on lease. He has submitted that while opposing the claim made in the plaint, the petitioner had submitted that only the preliminary work was done and further work had to be undertaken after obtaining due permission from the authorities under the Act. He has submitted that along with the written statement, the petitioner filed counter claim seeking the relief of mandatory injunction directing the plaintiffs to sign and execute all such papers/documents/building plans for the renovation etc. of the basement and ground floor of the leased premises and made an application for ad interim injunction in mandatory form seeking the aforesaid relief. He has submitted that learned trial court has allowed the application of the plaintiffs restraining the petitioner from raising constructions in the leased premises and has simultaneously dismissed the application filed by the petitioner and in appeal also, learned Additional District Judge, Chandigarh has upheld the said decision.
Learned counsel for the petitioner has further submitted that learned trial court has declined the relief to the defendant-petitioner on the ground that the defendants have already filed a writ petition before the High Court regarding the same matter and that they have not disclosed about the same in their counter claim as well as the application filed under Order 39 Rules 1 and 2 CPC. He has submitted that the said writ petition was pending on that date but the writ petition stands withdrawn on 29.9.2011, a day before learned Additional District Judge, Chandigarh decided the appeal.
Learned counsel for the petitioner has further submitted that learned Additional District Judge has grossly erred in interpreting the terms of clause (20) of the lease deed by restricting the constructions to installation or fixtures, which are mentioned in the said clause. According to him, the interpretation of clause (20) is most important in this case and would be decisive of the controversy between the parties. He has submitted that the petitioner took the building for commercial purpose for running a restaurant and bar and for that purpose, construction and alteration is very much required, which was permitted to the lessee in the lease deed vide clause (20). He has submitted that the petitioner was within its rights to renovate and make the building suitable for his business by raising construction. According to him, as no construction could be done without sanction of the plans from the authorities under the Act, obligation was there on the part of the lessor to sign the necessary papers required for obtaining that sanction and in pursuance of those terms, the lessee had sent letters to the lessors, but the respondents did not respond to the requests of the petitioner.
Learned counsel for the petitioner has submitted at the bar that he does not challenge the grant of ad interim injunction in favour of the lessors by the courts below because the petitioner is not authorized to raise construction without the approval of the authorities under the Act. According to him, the lessors have failed to discharge their obligation under the lease deed and for directing them to discharge their obligation under the lease deed, the ad interim relief in mandatory form is required to be granted to the petitioner which the learned courts below have failed to do. He has submitted that the lease deed and its terms are not disputed by the respondents. According to him, under the terms of the lease deed, there is an obligation on the part of the respondents under the terms of clauses 20, 21 and 25 of the lease deed to sign all documents/papers and to execute such documents as and when they are required by the lessee for obtaining proper sanctions/approvals from the concerned departments. He has submitted that the respondents have failed to discharge that obligation and to enforce that obligation, ad interim mandatory injunction could be granted. In this regard, he has placed reliance on Varun Motors Pvt. Ltd. Vs. Maheswari Plaza Resorts Pvt. Ltd and others 1999 (4) ICC 608, Kalyan Mukherjee Vs. M/s Rahut Syndicate, 1992 AIR (Calcutta) 1, State of Punjab and another Vs. Phoola Singh and others 2011 (5) RCR (Civil) 491 and American President Lines Ltd. Vs. Punjab Con-Cast Steels Limited 1998(1) PLR 566. He has also drawn my attention to a decision of Hon`ble Supreme Court of India in Purshottam Vishandas Raheja and another Vs. Shrichand Vishandas Raheja (Dead) Through LRs and others 2011 (3) RCR (Civil) 762, where the guidelines for grant of interim mandatory injunction have been reiterated as under :-
(i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
iii) The balance of convenience is in favour of the one seeking such relief.
iv). Being essentially an equitably relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court.
(v). An interim mandatory injunction is not a remedy that is easily granted - It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction.”
Learned counsel for the respondents has submitted, on the other hand, that the petitioner cannot seek the relief of mandatory injunction because not only the lessee has failed to deposit the refundable security in the sum of Rs. 23,20,000/- but is also in arrears of rent since March, 2011. According to him, the cheque for the amount of Rs.23,20,000/- had been dishonoured and a complaint filed by the lessors under section 138 of the Negotiable Instruments Act is pending against the petitioner. He has submitted that the lessee had only tendered the rent even prior to March, 2011 before the Rent Controller during the proceedings of an eviction application. He has submitted that the lessee has damaged the building of the respondents by making unauthorised additions and alterations and that too, without making the necessary payments. He has further submitted that the petitioner is a lessee and if the lessors had any obligation under the lease deed, the said obligation cannot be enforced under section 39 of the Specific Relief Act. He has submitted that the ad interim mandatory injunction sought by the petitioner cannot be granted because grant of the same would amount to allowing the counter claim which is not permissible under law.
He has placed reliance in this regard on a decision of Hon`ble Supreme Court of India in Metro Marins and another Vs. Bonus Watch Co. Pvt. Limited and others AIR 2005 Supreme Court 1441 (1).
Learned counsel for the respondents has further submitted that the trial court and the appellate court have refused to grant interim injunction to the petitioner and as those findings are concurrent, interference by High Court under Article 227 of the Constitution of India is not permissible. He has cited before me a number of decisions of Hon`ble Supreme Court of India on this point. They are reported as The Municipal Corporation of Delhi Vs. Suresh Chandra Jaipuria and another 1976 AIR (SC) 2621, The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another Vs. Ajit Prasad Tarway, Manager (Purchase and Stores), Hindustan Aeronautics Ltd. Balanagar, Hyderabad 1973 AIR (Sc) 76, Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and another 1975 AIR (SC) 1297, State of Haryana and Ors. Vs. Manoj Kumar 2010 (2) RCR (Civil) 296. He has also cited a decision of this court in SumerChand Jain Vs. Vishnu Bhagwan Mangla 2006 (2) RCR (Civil) 445 in this regard. It has been laid down in Ajit Prasad Tarway's case (supra), which is a decision directly on the point in issue, that High Court should not interfere in the exercise of its jurisdiction under section 115 CPC even if the trial court's order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. Learned counsel for the respondents has, therefore, submitted that this court cannot interfere with the concurrent exercise of discretion by the learned courts below.
The point for determination in the revision petition before me is as to whether the petitioner had been entitled to the grant of ad interim mandatory injunction directing the lessors to sign and execute such papers/documents/building plans for the renovation of the basement and ground floor of the SCO, with regard to which there is agreement between the parties contained in the lease deed dated 17.2.2010. The other aspect of the case, which became the cause for filing the suit had been the digging etc. done by the lessee in the leased premises and in that regard, the application for ad interim injunction has been allowed by both the courts below restraining the petitioner/lessee from raising construction, demolishing walls and doing any type of digging etc. at the spot and thereby causing damage to the leased premises and building in violation of the building bye-laws framed under the Act till decision of the suit except in due course of law. As I have noticed earlier, learned counsel for the petitioner has stated at the bar that he did not challenge that part of the impugned order and judgment. So, the only question to be determined here relates to the grant of ad interim mandatory injunction as prayed for by the petitioner.
The parameters for grant of mandatory injunction have been laid down in section 39 of the Specific Relief Act, 1963, which can be reproduced as under :-
“39. Mandatory injunctions :- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.”
Under the aforesaid provision, the court has got discretion to grant an injunction with the object of preventing the breach of an obligation as also to compel performance of the requisite acts. So, under this provision, if there is a contract between the parties, which is either admitted or established, laying down an obligation on the part of one of the parties to the contract to do certain acts which the court is capable of enforcing, the court has got the discretionary power to grant such an injunction to prevent the breach of obligation and also to compel performance of the requisite acts.
The petitioner/lessee has taken the basement and ground floor of SCO No.17, Sector 26, Chandigarh for business purpose i.e., running a restaurant and bar as also having office area in the same and for making the said premises suitable for its needs, it has been given the right under clause (20) of the lease deed to make certain constructions and additions as also to make some installations. Now, barring minor alterations, the constructions amounting to major alterations or additions would require the nod of the authorities under the Act before being carried out. Being alive to the said situation, which would require submission of plans for carrying out the construction etc., the lessors had been obliged under clause (25) to provide all papers/documents and to execute and sign all such papers and documents required for the purpose. With a view to make the alterations, the petitioner claims to have started preparatory work which has now been stopped and to have sent the plans to the lessors under the cover of letters dated 26.7.2010 for signing them so that they could be submitted to the authorities for sanction. Admittedly, the lessors did not oblige the lessee in this regard and had not even sent replies to those letters. While looking to the terms of clause (20) of the lease deed, learned first Appellate court has observed in para No. 15 of the judgment dated 30.9.2011 (Annexure P8) that the constructions contemplated under clause (20) of the lease deed were limited to the installation of fixtures and fittings. According to him, the constructions and additions could not be of the nature independent of the installations and fixtures and therefore, no substantial construction or addition was contemplated under the lease deed.
Learned counsel for the respondents could not even stand by this interpretation of clause (20) of the lease deed made by learned Appellate court. By limiting the scope of construction and additions to the installation and fixtures, learned Appellate court has committed material irregularity which would certainly give jurisdiction to this court to interfere with the impugned order. The constructions and additions, as per clause (20) are independent of the installation of fittings and fixtures and it is the fittings and fixtures which have been defined in the said clause. The constructions and additions are not to take their colour from the fittings and fixtures.
The constructions and additions which the lessee was entitled to make in the leased premises could be limited only by two conditions. The first was that the constructions and additions were to be in accordance with the terms of the lease deed and secondly, they were to be made after obtaining sanction from concerned authorities of Chandigarh Administration. Since the constructions and additions could be made after obtaining necessary sanction from the concerned authorities, it could not be expected that they could violate the building bye-laws framed under the Act. There is no other limitation as to the constructions and additions in the lease deed except for the fact that they were to be made to carry out the work of restaurant and bar as well as office work.
When the lessee had prepared plans for submission to the concerned authorities for sanction and asked the lessors to sign them, no reply was sent by lessors to the lessee pointing out that the proposed constructions were beyond the terms of the lease deed. So, it cannot be said that the constructions proposed to be made by the lessee were beyond the terms of the lease deed and, therefore, learned Appellate court was not justified in giving a restricted meaning to the terms -constructions and additions, as used in clause (20) of the lease deed.
The lease deed is not a disputed document between the parties. There is no question of enforcement of the lease deed by way of the application for ad interim mandatory injunction brought by the petitioner. The petitioner only sought enforcement of an obligation contained in the lease agreement and the petitioner, who is running with a liability to pay Rs. 5,80,000/- per month as rent to the lessors, is prevented by them from bringing the premises to use by making the constructions and additions thereto. The petitioner is only seeking enforcement of an obligation arising from the lease agreement and such an obligation can be enforced by the court by granting ad interim mandatory injunction.
So far as the submission of learned counsel for the respondents concerns the dishonour of the cheque and proceedings under section 138 of Negotiable Instruments Act , it can be said that the enforcement of obligation under the admitted contract cannot be denied for this reason. The petitioner would be liable to punishment if it has committed the offence punishable under section 138 of the Negotiable Instruments Act. The rent for the period prior to March, 2011 has admittedly been paid before the Rent Controller and the petitioner may still be in arrears of rent thereafter. However, it is a case where the lessee is to pay the rent in such a huge amount without being able to use the building. Non payment of rent would, moreover, give rise to other remedies in favour of the lessors and this would not have a negative bearing on the relief sought by the petitioner of ad interim injunction of directing the lessors to sign and execute such papers/documents/building plans for the renovation of the basement and ground floor of the SCO, with regard to which there is agreement between the parties contained in the lease deed dated 17.2.2010.
The ratio of Metro Marins's case (supra) would not stand attracted to the facts of this case as the suit brought by the respondents therein was for possession on the plea that the appellant had been a licensee and since the period of licence had expired, he was entitled to a decree of possession. Grant of interim possession to the plaintiff under the provisions of Order 39 Rules 1 and 2 CPC would in those circumstances have amounted to decreeing the suit even before trial, which is not the case before me. As I have already observed, learned Appellate court has committed material irregularity in interpreting the terms of clause (20) of the lease deed and, therefore, inspite of concurrent findings of the courts below, this court is empowered to interfere with those findings. Therefore, the decisions in Suresh Chandra Jaipuria's case, Ajit Prasad Tarway's case, Babhutmal Raichand Oswal's case, Manoj Kumar 's case, SumerChand Jain's case (supra) would also have no application to the facts of this case.
Coming to the aspect of filing of writ petition by the defendant petitioner, it cannot be said that mere filing of the writ petition would disentitle it to the relief sought in the application filed under Order 39 Rules 1 and 2 CPC. Learned counsel for the respondents has, moreover, not advanced any argument on this aspect. The writ petition was eventually withdrawn by the petitioner before learned Appellate court could decide the misc. civil appeal. In these circumstances, I find no adverse impact to be there on the relief sought by the petitioner by way of ad interim mandatory injunction by the fact of petitioner's filing the writ petition directing the Chandigarh Administration to consider the petitioner (lessee) as legal and valid applicant for the application for sanction of revised building plans.
In these circumstances, the petition succeeds and is allowed directing the respondents/lessors to sign and execute such papers/ documents/building plans for the renovation of the basement and ground floor of the SCO, with regard to which there is agreement between the parties contained in the lease deed dated 17.2.2010.