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Ram Gopal Banarsi Dass v. Satish Kumar .
Structured Summary of the Opinion — Civil Revisions Nos. 790, 1259 & 1488 of 1984
Factual and Procedural Background
The three revisions were heard together because they involve an identical question of law; the facts of Civil Revision No. 790 of 1984 were taken as representative.
The petitioners are tenants of Shop-cum-Flat No. 70, Grain Market, Sector 26, Chandigarh. The respondent, who owns a one-half share in the shop, filed a suit for a permanent injunction to restrain the tenant from using any portion of the premises for running a karyana (grocery) business, and for the sale of dairy products and crackers. The respondent alleged such use violated provisions of the Capital of Punjab (Development/Regulation) Act, 1952 (the Punjab Act) and that the Chandigarh Administration had issued a notice to show cause as to why the premises should not be resumed.
Along with the suit, the respondent filed an application under Order 39, Rules 1 and 2 read with Section 151, Civil Procedure Code (Civil P.C.) for an ad interim injunction restraining the petitioners from carrying on the karyana business and the sale of crackers and dairy products. The tenant appealed the trial court's order, was unsuccessful, and proceeded by way of these revision petitions.
Legal Issues Presented
- Whether the provisions of Clause (g) and Clause (i) of Section 41 of the Specific Relief Act operate to debar a plaintiff from obtaining an ad interim (temporary) injunction where the plaintiff has acquiesced in the breach complained of or where the plaintiff (or his agent) had allowed the demised premises to be used from the inception for the very purpose for which the defendant is using them.
- Whether the rule of estoppel embodied in Clauses (g) and (i) of Section 41 would be inapplicable when the act constituting the alleged breach (or the business being carried on) is prohibited by law.
- Whether the provisions of the Chandigarh (Sale of Sites) Rules, 1952 (notably Rules 8 and 9 and the entries made by the Estate Officer in the conveyance deed) establish a prima facie case sufficient to justify an ad interim injunction in these circumstances.
Arguments of the Parties
Petitioners' (Tenants') Arguments
- The learned counsel for the petitioners relied on Clauses (g) and (i) of Section 41 of the Specific Relief Act to contend that no ad interim injunction could be granted where the plaintiff has acquiesced in the continuing breach or where the conduct of the plaintiff or his agent disentitles him to equitable relief.
- The factual basis asserted was that, from the inception of the tenancy, the demised premises were used for karyana business and the sale of crackers and dairy products with the landlord's knowledge and consent, i.e., there had been long acquiescence by the landlord.
Respondent (Landlord / Plaintiff in Suit)
- The respondent asserted that the use was prohibited under the Capital of Punjab (Development/Regulation) Act, 1952 and relied on the Chandigarh (Sale of Sites) Rules, 1952 (Rules 8 and 9) — including the entry made by the Estate Officer about permitted purpose — to show a prima facie violation justifying an ad interim injunction.
- Although not disputing the general principle that a plaintiff who has acquiesced cannot claim an interlocutory injunction, the respondent's counsel argued that that principle would not apply where the act constituting the breach is prohibited by law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. Ameryit Kaur Sandhu v. Malabar Cane Furniture, Sector 22-B Chandigarh (1979) 2 Rent CR 596 | Single-judge view that a temporary injunction restraining a defendant from using demised premises in a manner prohibited by the Punjab Act can be granted in a suit filed by the landlord despite the landlord's prior consent to such use. | The court recorded that this earlier single-judge view had been taken but noted that its correctness was later challenged and led to further reference. The present court recognized the earlier view as part of the prior jurisprudential landscape. |
| Sohan Lal v. Smt. Harbans Kaur (Civil Revision No. 1956 of 1981) (decision dated September 15, 1981) | Similar single-judge view endorsing grant of temporary injunction notwithstanding landlord's prior consent. | Cited as another instance where a single judge took the similar view; noted in the opinion as part of the line of authority favoring grant of interim relief despite alleged landlord consent. |
| Tata Oil Mills Company Ltd. v. Manmohan Verma (1982) 1 Rent LR 413 | Another reported decision in which a similar conclusion—permitting temporary injunction despite alleged prior consent—was reached by a single judge (J.V. Gupta, J.). | Referenced as part of the cluster of single-judge decisions taking the same approach; the opinion notes these cases when describing the state of prior decisions. |
| Civil Revision No. 2869 of 1981 | This earlier revision had been referred to a Division Bench and then to a Full Bench because the correctness of the single-judge view was challenged relying on S.41(g),(i) of the Specific Relief Act. | The court noted that the matter had been referred for authoritative pronouncement but a Full Bench decision was not rendered on the issue because the revision petition was dismissed as infructuous. |
| M. Holkar v. A.P. Srihan (1984 Rev L 289; AIR 1985 Punj & Har 24) | Division Bench opinion explaining that Section 41 of the Specific Relief Act should be considered at the threshold only where the facts which attract Section 41 are admitted and not in genuine disputes of fact; where facts are disputed, the trial court must first find the facts and then consider applicability of Section 41. | The opinion of this Division Bench was quoted at length and used to explain the proper approach: S.41 can bar jurisdiction at threshold only where facts are not in dispute; otherwise the trial court must decide factual issues first. |
Court's Reasoning and Analysis
The court's analysis proceeded in distinct steps, reflecting both procedural law on interim injunctions and the substantive effect of Section 41 of the Specific Relief Act.
- The court first identified the governing procedural provisions for interim injunctions: Order 39, Rules 1 and 2, Civil P.C. Rule 1 describes circumstances in which a court may grant temporary injunctions (danger of waste, damage, dispossession, or breach of contract). A bare reading of these rules shows no express limitation analogous to the restrictions contained in various clauses of Section 41 of the Specific Relief Act.
- The court accepted the agreed proposition that, where the grant of a perpetual injunction is barred by Section 41, an ad interim injunction might also be barred. That framed the core question: do Clauses (g) or (i) of Section 41 debar the plaintiff from obtaining ad interim relief in these circumstances?
- The petitioners' primary contention — that Clauses (g) and (i) apply to bar equitable relief where there has been acquiescence or where the plaintiff or his agent permitted the use from the inception — was acknowledged by the court as a valid principle of estoppel.
- The court considered the respondent's counter-argument that Clauses (g) and (i) would not apply if the acts complained of were prohibited by law. The court agreed in principle that illegality could make the Clauses inapplicable, but emphasized that invoking this exception requires factual findings which are only possible after a trial. A bare allegation that the acts are prohibited by law is insufficient at the interlocutory stage to defeat the bar in Section 41.
-
The court examined the specific statutory/regulatory context relied upon by the respondent — the Chandigarh (Sale of Sites) Rules, 1952 (rules made under Section 22 of the Punjab Act), particularly Rules 8 and 9 and the entry made by the Estate Officer in the conveyance deed specifying permissible purposes.
The court found these arguments plausible on face value but rejected them on closer scrutiny for several reasons stated in the opinion:
- It is doubtful that Rule 9 is violated merely because, alongside the trade for which the site is meant, some other goods are also sold.
- The purpose entry in the conveyance deed is not prescribed by statute or subordinate rules; it is an entry made by the Estate Officer and is contractual in nature. The Estate Officer may, for valid reasons, permit substitution of a different trade on request.
- Where the Estate Officer tacitly allows different uses for many years, such long acquiescence may give rise to implied consent and estoppel against later complaints.
- The court noted the practical reality that many front portions of buildings are used for commercial purposes with tacit or long-standing estate authority acquiescence; treating each such instance as a statutory violation would produce arbitrary and discriminatory enforcement against many similarly situated transferees.
- On the totality of the above analysis, the court concluded that Clauses (g) and (i) of Section 41 would operate to disentitle the plaintiff to claim an ad interim injunction where the plaintiff has acquiesced in the breach or where the premises have been used for the same business since inception of the tenancy. The court reiterated that the exception for acts prohibited by law requires trial-level factual determination.
Holding and Implications
Holding: The court held that Clauses (g) and (i) of Section 41 of the Specific Relief Act disentitle a plaintiff to obtain an ad interim injunction restraining a defendant from committing a breach in which the plaintiff has acquiesced, or from carrying on a business on the premises for which the premises were let or had been used from the inception of the tenancy. The court therefore allowed these revisions.
Consequential orders pronounced by the court were:
- The revisions (Civil Revisions Nos. 790, 1259 and 1488 of 1984) were allowed.
- The orders of the learned Additional District Judge were set aside.
- The orders of the trial court were restored.
- No costs were awarded.
Implications: The opinion confines its effect to the parties before the court: the plaintiff was held disentitled to ad interim relief on the basis of acquiescence and the relevant statutory/regulatory considerations were assessed as insufficient at the interlocutory stage to displace that bar. The court did not purport to lay down any broader new rule beyond these conclusions, and it emphasized that allegations of illegality require factual determination at trial before Section 41's exceptions can be applied.
Order: "Order accordingly." (as recorded in the opinion).
1. This judgment will dispose of three petitioners, Civil Revisions Nos. 790, 1259 and 1488 of 1984 as all of them involve an identical question of law. For the purpose of this judgment, the facts of Civil Revision No. 790 of 1984 have been noticed.
2. Shop-cum Flat No. 70, Grain Market, Sector 26, Chandigarh, is on lease with the petitioners. The respondent, owner of 1/2 share of the said shop, brought a suit for permanent injunction restraining the tenant from using any portion of the demised premises sfor running karyana business, sale of dailry products and crackers alleging that such a uuse was against the provisions of the capital of Punjab (Development/Regulation) Act, 1952 (hereinafter called the Punjab Act) and that because of the said misuse, Chandigarh Administration had issued a notice to show cause as to why the said premises be not resumed. Along with the suit, he also filed an application under O. 39, Rr. 1 and 2 read with S. 151, Civil P.C. for an ad interim injunction restraining the petitioners from carrying on karyana business and the sale of crackers and daity products. The tenant went in appeal against the order of the trial court but having failed has come up in this revision.
3. The main ground urged by the learned counsel for the petitioners was that in view of the provisions of S. 41, cls (g) and (i), Specific Relief Act, (for short, the Act) no ad interim injunction could be granted to prvent the contibuing breach in which the plaintiff had acquiesced or when be conduct of the plaintiff or his agent has been such as to disentitle him to the asssistance of the court. The basis for this argument was that the demised premises form the very inception of th etenancy were being used apart from the sale and purchase of grains, for karyana business and the sale of crackers and daity products with the knowledge and consent of the landlord who has thus acquiesced in the present use of the demised premises for more than a decade.
4. This matter came up before me sitting singly in Mrs. Ameryit Kaur Sandhu v, Malabar Cane Furniture Sector 22-B Chandigarh, (1979) 2 Rent CR 596 and 1 took the view that a temporary injunction restraining the defendant from using the demised premises for the purpose prrohibited by the provisions of the capital of Punjab (Development Regulation) Act, 1952 can be granted in a suit filed by the landlord in spite of the fact that the latter had consented to any such use of the premises by the tenant. A similar view was taken by M.R. Sharma, J. in Civil Revn. No. 1956 of 1981 (Sohan Lal v. Smt, Harbans Kaur) decided on September 15, 1981 and J.V. Gupta, J. in Tata Oil Mills company Ltd. v. Manmohan Verma, (1982) 1 Rent LR 413. However, in civil Revision No. 2869 of 1981, I referred the matter to a Division Bench for an authoritative pronouncement because the correctness of the above view was challenged relying on S. 41 (g),(i) of the Act. The Division Bench, in turn, referred the matter to a Full Bench but no decision was rendered on the said question as the Revision Petition was dismissed having become infructuous. Thereafter, the same question came up for consideration before a Division Bench in M. Holkar v. A.P. Srihan, 11984 Rev L 289: (AIR 1985 Punj& Har 24) and the Bench expressed its opinion on the provisions of the said S. 41 in the following termss:--
"There is no dispute with the proposition that the trial court in the matter of granting of injunction and the entertaining of the injunction said has to keep in forefront the provisions of S. 41 of the Act. So far as the bar of jurrisdiction at the therehold in view of the relevant provisions of S. 41 is concerned, that would arise only where on admitted facts the matter being such that it would attract the relevant provisions of S. 41 prohibiting the grant of injunction. where such is not the case and one party has raised the plea and the other has denied then the trial Court shall have to give a finding first and then would consider as to whether the relevant provisions of S. 41 prohibitionsn the grant of injunction is attracted or not. But then with the given finding the necessaity of grant of intenrim injunction would not arise as the case would stand finally decided. Hence we are of the view that provisions of S. 41 of the Act can be attracted at the thershold to cases where there is no dispute in regard to the facts which would attract the application of relevant provisions of S. 41 baring the jurisdiction of the court in regard to the granting of injunction and by implication prohibition the entertaining of injunction suit in question."
It appears that the said decision was not brought to the notice of J.V. Gupta, J and thus revision was admitted to Full Bench in view of the earlier reference in Civil Revision No. 2869 of 1981.
5. The grant of temporary injunction during the pendency of the suit is governed primarily by the provisions of O. 390, Rr. 1 and 2, Civil P.C. Rule 1 provides that where in any suit it is proved by facts or otherwise that any property in dispute is in danger of being wasted, damaged or alienated or that the defendant has threatened or intends to remove or dispose of his property with a view to defraud the creditors or that the defendant has threatened to dispossess the plaintiff or otherwise cause injury to him in relation to the property indispute, the court may by order grant temporary injunctionrestraining such act. Rule 2 provides that in any suit for a pernament injunction the plaintiff may apply to the Court for a temporary injunction to restrain the defendant from committed a breach of contract or injury complained of arising our of a contract or relating to any property or right. A bare perusal of these two rules would show that no limitation as envisaged in the various clauses of S. 41 of the Act has been placed on the discretion of the court in the matter of grant of temporary injunction. However, it was snot disputed by the learned counsel for of the either side that if the grant of perpetual injunction as claimed in the suit is barred by the proviusions to grant even an ad interim injunction by way of temporary relief pending disposal of the suit. The short question which needs determination, therefore, is as to whether the provision sof Clause (g) or (I) of S. 41 of the Act would debar the plaintiff from claiming an ad interim injunction restraining the defendant from using the premises in the manner in which the plaintiff has acquiesced or because he or his agent has let out the demised premises of rht very same purpose for which it is being used.
6. The learnec counsel for th eres did dnot dispute that the plaintiff would not be entitled to an ad interim injunction restraining the defendant from committing a abreach in which he has acquiesced or from doing business on the premises for which it was let out or was being carried on from the very inception of the tenancy but urged that the said rule of estoppel contained in Cls. (g) and (I) of S. 41 of the Act would not be applicable if the act constituting the breach or the business being carried on the demised premises is prohibited by law. There can be no dipute with the proposition of law canvassed by the learned counsel. However, as would dbe evident from the discussion following that for invoking this principle certain findings have to be recorded first which would be possible only after trial and the mere allegation that the alleged acts constituting the breach are prohibited by law would not be sufficient to make the provisions of Cls (g) and (I) of S. 41 of the Act inapplicable.
7. The state Government in exercise of its powers under S. 22 of the Punjab Act has framed rules called the Chandigarh (Sale of Sites) Rules, 1952. R. 8 requires the transferr toexecute a deed of conveyance in the form prescribed in schedule "B" and under clause 9 of the said provisions forma, the Estate Officer prescribes the purpose for which alone the site or the building constructed thereon can be used R. 9 prohibits the transferr from using the site for the purpose other than that for which it has been sold to him. On the basis of the entry in Clause 9 and the provisions of the said Rules, it was contended that a prima facie case is estabalished which provides sufficient basis for the grant of an ad interim injunction. On the face of it this argument appears to be plausible but faials to stand the test of scrutiny for varirous reasons. Firstly, it is highly doubtful that the provisions of the said rules would be said to have been violated simply because along with the carrying on of a trade for which the site is meant, the tenant starts selling some other goods as well. Secondly, the purpose for which the site is sold is not prescribed by any statute or the rules framed thereunder. Entry under the concerned clause 9 is made by the Estate Officer in the conveyance deed which is more or less contractual in nature because the Estate Officer in the conveyance deed which is more or less contractual in naturue becuase the Estate Officer is not debarred from subsitituing a different kind of trade than the one already entered for valid reasons on request by the transferr. If the Estate Officer allows the transfereer or the tenant under him to use the site or the building for purposes other than specified in the conveyance deed for sufficiently large number of years it may be open to the tenant or the transferee, as the case may be to plead and prove that the former had impliedly consented to the change of th euse to other than the prescrribed one. It is a thing of common knowledge that the front portions of hundreds of buildings abuutting on the main roads in various sectors are being used for business or commercial purproses which is being done with the tacit consent of the Estate Officerr. Had that been not so, the Estate Officer would have to take action against all such transferees because it would not be the provisions of th elaw and the rules in such a manner that it results in a discriminatoroy treatment to the handreds of transferees similarly situated. We would, therefore, hold that the provisions of Cls. (g) and (I) of S. 41 of the Act would disentitle the plaintiff to claim ad interim injunction restraining the defendant from committing a breach in which he has acquiesced or from doing business on the premises for which it was let out or was being carried on from the very invception of the transaction. Accordinggly these revisions are allowed, the orders of the learned Additional District Judge set aside and those of the trial court restored. No costs.
8. Order accordingly.
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