KATANNA G. SHETTY Vs. MEVALAL MURLIDHAR GUPTA

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution, takes exception to the rejection of an application made in appeal whereby the petitioner had sought to stay the operation of an interim injunction pending the disposal of the appeal preferred by him to assail an order of temporary injunction.

(2.) RESPONDENT -plaintiff is the landlord and the defendant -petitioner, the tenant of house bearing Nos. 290 at Kap Kaneri, Ghungat Nagar, Bhiwandi. According to the respondent, the defendant entered into occupation of the premises on certain terms and conditions. A vital restriction he then willingly accepted was the promise to refrain from selling non -vegetarian dishes and alcoholic beverages in the hotel which he was to conduct in the premises. Contrary to this stipulation contained in document dated 7.10.81, defendant had taken steps to introduce the sale of non -vegetarian food and alcoholic beverages to his customers. There was a temple behind the premises in which the hotel was located and this was an additional reason to restrain the defendant from starting a beer -bar or permit room in the hotel. Alongside, the institution of the suit, in which possession, arrears of rent and an injunction had been claimed, plaintiff moved an application seeking an interim injunction. The purpose of the application was to prevent defendant from opening and conducting a beer -bar or permit -room in the suit premises until the disposal of the suit. Pursuant to a show -cause notice served upon him, the petitioner -defendant filed a reply. In the reply, it was denied that there was any agreement forbidding him from selling non -vegetarian food or alcoholic beverages to the suit hotel. The deed relied upon by the plaintiff was a fabrication and did not bear his signature. Defendant did not know Marathi and it was possible that plaintiff taking advantage of his ignorance had obtained his signature on some document written in Marathi, the terms or contents whereof, were not made known to him. Any writing indicating the contrary, if any, existing was not binding upon him. He had spent a great deal of money, apart from paying Rs. 10,000/ - as premium to the plaintiff for glaring the hotel business. Were the interim relief claimed by the plaintiff to be granted, he would suffer irreparable loss and hardship.

(3.) THE first and foremost question to be decided is about the jurisdiction of the trial Court to issue an interim injunction. Mr. Paranjpe submitted that the Civil Judge had before him an action for recovery of possession, rent and compensation which action had been instituted in a special Court vide Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Such a Court has to deal only with (i) suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of the Rent Act apply, (ii) to decide any application made under the Act, and (iii) to deal with any claim or question arising out of the Act or any of its provisions. Assuming that the petitioner was under an obligation to observe the terms and conditions spelt out in the lease deed relied upon by the respondent, it was not open to him to seek the relief of an injunction in a Rent Court to prevent the so -called breach of terms and conditions. It was possible to say that a proved breach of the terms and conditions of the lease deed would give a right to the respondent to seek the ejectment of the petitioner. However, this did not confer upon respondent the right to seek an injunction and an interim injunction at that. Learned Counsel submits that Section 12(1) of the Act which obliges a tenant to pay the standard rent and permitted increases and also prescribes the performance and observance of the order conditions of the tenancy, provides no interim penalty for the tenant's failure to observe the terms and conditions of the tenancy. Assuming that the tenant is liable to be ejected for the failure to observe and perform the other conditions of the tenancy, he cannot be proceeded against to prevent the alleged commission of a breach of the said conditions as long as his right to occupy the tenanted premises is not brought to an end by the successful completion of an execution proceeding. In support of this submission, Counsel relies upon decisions reported in [60 B.L.R. 374 and 72 B.L.R. 264]. In the first case, Chief Justice Chagla did hold that where a landlord in suit claimed damages and an injunction against the tenant, that claim or question could not be said to arise out of the Rent Act. Therefore, the jurisdiction to consider the landlord's claim for damages and injunction could be entertained by an ordinary Civil Court. This proposition does support the proposition advanced by Mr. Paranjpe, though, to some extent. In another case Mr. Justice Patel in the decision reported at (72 B.L.R. 264) came to a similar conclusion because a term of the alleged tenancy contract was said to be not arising out of the Rent Act. But the decision binding upon is that of a Division Bench of our High Court in Mirabelle Hotel Company Pvt. Ltd. v. Manu Subedar reported in (72 B.L.R. 223). The following observations forming part of the Division Bench's judgment aforesaid bear out the conclusion reached by me : -