VISHVARMA HOTELS LTD Vs. ANJUMAN E IMAMIA

JUDGEMENT

(1.) This appeal by the 2nd defendant is preferred against the order dated 26-11-1981 passed by the learned XII Addl City Civil Judge, Bangalore in OS No 8041 of 1960 allowing I.A.No. I filed by the plaintiffs and granting an order of temporary injunction pending disposal of the suit restraining the defendants 1 to 4 from running any hotel business in the building constructed in the suit schedule property and selling pork and wine therein, on conditions that the plaintiffs furnish security to the satisfaction of the Court in a sum of Rupees five lakhs; that the plaintiffs should remain present in the Court with their advocates on each and every hearing dates, to prosecute I. As. and to take all steps for the speedy disposal of the suit; that the plaintiffs shall not rema in absent and seek any adjournments on any of the hearing dates.

(2.) The trial Court has granted an order of temporary injunction on the basis of the following conclusions:

(3.) In this appeal Sri F.S. Nariman, learned Counsel appearing for the appellant-2nd defendant, has advanced the following arguments; that the judcial discretion has not been properly exercised by the trial Court in granting an order of temporary injunction; that all the aspects of the case have not been taken into consideration; that no prima facie case is made out for granting an order of temporary injunction; that there is a long delay in approaching the Court; that the plaintiffs must be held to have acquiesced in the matter by their long in-action; that the lease in question in favour of the first defendant has been executed in accordance with law and after obtaining due sanction from the Karnataka State Board of Wakfs as required by S. 36A read with Ss 15 (2) (j) of the Wakf Act 1954 (hereinafter referred to as the 'Act') ; that in law it is not necessary that the actual lease-deed is to be produced before the authority empowered to accord sanction and it is sufficient if the proposal to lease containing the essenual terms of the lease is sanctioned by the authority empowerid to sanction ; that the assignment of lease-hold rights in favour of the 2nd defendant and the further extensions of the lease period have also been done in accordance with law; that the principles of Muslim law regarding the sale of pork and wina as contained in Problem No.2213 at page 407 of the book 'Tauzihul Musail' revised 1977 Edition, and as relied upon by the trial Court, are not applicable to the lease in question in view of the provisions contained in S. 2 (d) of the Transfer of Property Act, inasmuch as the leases fall under Chapter V of the Transfer of Property Act; that even otherwise, the aforesaid principles of Mohammadan Law are not applicable because the lease is not for sale of pork and wine, but the lease is for putting up structures for running 3 Star Hotel and an open air cinema or any other structures and buildings for running the business of the lessee; that the superstructure put by the lessee on the suit schedule property as per the terms of the lease belongs to the lessee and not to the lessor and it continues to bs of the ownership of the lessee untill the expiry of the lease period, therefore even if the wine and pork are served, the same are served in the superstructure belonging to the lessee and as such, there is no violation of the aforesaid principles of Mohammadan Law; that at any rate the aforesaid principles of Mohammadan Law have become obsolete and are not enforceable having regard to the present day conditions of the society; that the building has been completed by investing Rs. 5 Crores; that the suit schedule property before it was leaped to the first defendant had been lessrd to M/s Mysore Spinning and Manufacturing Ltd., and was in the posession of the Managing Director of that Company and was occupied by people with varied food habits and there were no restrictions for cooking and consuming of any kind of food including meat of all kinds and liquor as borne out from the affidavit of J.M. Sirur ; that the balance of convenience is in favour of the appellant-defendant No. 2: that the trial court has rig- htly held that it is not proved that the suit property has become a wakf by user, that having regard to the terms contained in the lease deed, the lease is beneflcal to the Wakf.