DARYAOSINGH RAO Vs. PRAMILABAI BHANDARKAR

JUDGEMENT

(1.) IN 1944 the appellant in the case took on a monthly rent of Rs. 21-8-0 two rooms located in the lower front portion of a house bearing No. 18 situated in nandlalpura, Indore, from the then owner of the house. Subsequently the house was sold to the respondent Dr. Miss Bhandarkar in 1949 and thereafter the appellant became her tenant. The appellant, who belongs to the medical profession, keeps a dispensary and a laboratory in the rooms rented by him. In 1948 he applied to the Indore Electric Power House for bringing electric energy in the rooms and deposited with the Power House the requisite fee. The Power house declined to grant this without the consent of the owner of the house. Thereupon the appellant approached the respondent to give the necessary consent. When she refused, the appellant instituted a suit claiming an injunction directing the respondent to give the permission and not to obstruct him in obtaining the electric energy connection from the Power House. The respondent by her defence frankly pleaded that she did not wish to give any permission to the plaintiff for bringing electric energy in the rooms as the plaintiff was harassing her and damaging the rooms and that she wanted to get the premises vacated as she needed them for her own use and further that she had filed a separate suit for ejectment against the plaintiff. The learned Additional City Civil judge of Indore dismissed the plaintiff's suit holding that there was no electric energy when the plaintiff took the rooms on rent; that it was entirely at the will of the landlord whether to bring electricity on her promises for lighting and other purposes; and that the landlord could not be compelled to give this amenity. The plaintiff then appealed to the Court of the district" Judge of Indore. The learned Additional District Judge, agreeing with the view taken by the trial judge, rejected the contention of the plaintiff that the act of the defendant in refusing to give consent to the bringing of the electric connection was a breach of the covenant for quiet enjoyment under Section 108 (c) of the Transfer of Property act and held that there was no obligation on the defendant towards the plaintiff which could be enforced by a mandatory injunction under Section 55 of the specific Relief Act. The plaintiff has now filed this second appeal.

(2.) MR. Chitale, learned counsel for the appellant, contended that there was an implied covenant under Section 108 (e) of the Transfer of Property Act for quiet enjoyment of the rooms when the plaintiff took them on rent; that anything that interfered with reasonable use of the property was a breach of the covenant; that the use of electric energy for lighting or other domestic purposes was so reasonable and natural that the refusal of the defendant in giving consent to the plaintiff to bring electricity on the premises rendered it impossible for the plaintiff to carry his business there; that, therefore, the defendant was under an obligation to accord consent to the bringing of electricity upon the premises; and that she could he compelled to give consent by an injunction under Section 55 of the specific Relief Act. In reply, Mr. Chaphekar, learned counsel for the respondent, said that the use of electric energy for lighting or any other purpose in the rooms was not an implied term in the plaintiff's tenancy; that, therefore, the refusal of the defendant could not be regarded as a breach of the covenant for quiet enjoyment; and that there was no obligation towards the plaintiff which could be enforced by a mandatory injunction.

(3.) IN my opinion, the learned Judges of the Courts below did not fully appreciate the points of law and fact arising for determination in a ease of this kind. The trial court decided the plaintiffs suit on a general issue as to "whether it was the responsibility of the defendant to permit the plaintiff to get electric energy connection from the Power House. " The plaintiff is not claiming that under the terms of his tenancy the defendant is under a liability to provide him with electric installation and energy. He is not asking the defendant to bear any installation charges. His claim in essence is that there is an obligation on the defendant landlord not to prohibit him from bringing electric installation and energy in the rooms at his own expense and to give the consent required by the Power House so as to enable him to have the electric energy on the premises. The claim though not so expressly averred in the plaint, is founded on the covenant for quiet enjoyment embodied in Section 108 (c) of the Transfer of Property Act and the defendant's plea that she does not wish to give consent as for some reasons she wants to get rid of the tenant is no answer to a claim resting on the covenant.