D.D. Malik vs S.M. Nehra

Gokal Chand Mital, J.—Dr. S. M. Nehra, took some rooms on the first floor of the three storeyed building built on a plot measuring 300 square yards in Chandigarh on rent in the year 1977 from D. D. Malik and lateron he became the tenant of the entire first floor. When Dr. Nehra got into first floor as tenant he only had a scooter and used to park it beneath the stair-case and during the day he may be keeping it on one side of the drive way so that the landlord could park his car in the garage.

In 1988 the tenant purchased a Maruti Car and the problem arose between the landlord and the tenant as to who was to park in the drive way. The drive way was sufficient for parking one ear only.

On 20 3-1989 the tenant filed a suit for injunction to restrain the landlord from withholding the amenities of the tenant in-as-much as obstructing the tenant from parking his car in the drive way. Alongwith the suit a* application for temporary injunction was filed, on which ex parte temporary injunction was granted and after hearing both the sides it was confirmed. The landlord went up in appeal and during the pendency of appeal got stay of operation of the order of the trial Court. Ultimately, the appeal was dismissed. Feeling dissatisfied the landlord as come to this Court and while admitting the revision the orders of the two courts below were stayed The net result is that so far landlord has been parking his car in the drive way and tenant is Keeping his car on side payment outside the boundary wall of the house.

A reading of the plaint shows that the tenant need to park his scooter beneath the stair case and sometimes in the driveway To this extent the landlord cannot deny the amenity to the tenant After ten years of tenancy the tenant purchased a car. There is no agreement between the parties authorising the tenant to park the car in the drive way. The tenant drew the inference from his parking the scooter as an amenity so park the car in place of scooter in the drive way. It would he significant to note the following submissions contained in in para 4 of the plaint for proper consideration of the case :

"... The amenities which the plaintiff is entitled to as a tenant and are being enjoyed right from the inception of the tenancy are being withheld by the defendant illegally."

On the admitted facts of this case, the plaintiff never had any right from the inception of the tenancy or till the expiry often years to park his car in the drive way. In the first two lines of para 4 of the plaint it is submitted that row the defendant has adopted unwarranted attitude and on 17-3-1989 misbehaved with the plaintiff and obstructed him from parking his car in the drive way. The tenant did not have a right to park the car in the drive way from the inception of tenancy then how can he obstruct landlord to park his car in the drive way by denying him this amenity.

6 The trial Court while confirming the temporary injunction took notice of the photographs placed by the tenant on record which show that landlord had parked his car in the back court yard of the house. From this the trial Court jumped to the conclusion that the defendant used to park his car only in courtyard of the house and not in the drive way. The inference drawn by the trial Court from the photographs is erroneous because the tenant obtained ex parte injunction order which was allowed to continue till the decision of the application by the trial Court and during that period the landlord had no option but to break open the hind wall and park his car in the back courtyard.

Corning to the lower appellate Court, it relied upon two decisions. So far as ''Ullal Dinkar Rao v. M. Ratno Bat A. I. R. 1958 karn 77, is concerned it is wholly distinguishable and could not be applied to the facts of the case as in this case alongwith house cowshed was also leased out. In heavy rains cow-shed and bath room were destroyed. The tenant, came to the Rent Controller for restoration of the same While construing the provisions of Section 8 of the Madras Building (Pent and Control) Act. 1949, it was held that cow shed and bath room would be the amenities within the meaning of the Act, but, it was further held that what is or is not an amenity would be the question to be decided in each case. I fail to understand how that decision is applicable to the facts of this case.

If the amenity of parking the scooter under the stair-case or on one side of the drive way during the day had been denied which admittedly the tenant was enjoying right from the inception he could make a grievance. But an amenity of parking car which be never enjoyed earlier cannot be claimed by him on purchase of a car ''after ten years of tenancy. Further by purchasing a car be cannot deprive the landlord of the amenity of parking his car in the drive way which can accommodate only one car by claiming it as his amenity.

The lower appellate Court then placed reliance on ''Madhav Vithol Kudwa v. Madhavdas Valhbkdas 1978 (2) R C J 554. This case relates to a tenant in a multi storey building in Bombay who was being denied the facility of parking the car in the compound of the premises while such a facility was avail- able to occupants of other flats in the same multi storey building. On these facts it was held that the tenant was entitled to park his car or motor-cycle in the compound around the building So far in Chandigarh these state of affairs are not available. Moreover, there is no compound in the premises in dispute where more than one car can be parked. 1 doubt that any judge would deprive the landlord from using the drive way which accommodates only one car and give right to the tenant who purchased the car after ten years of the tenancy. Hence this case is also distinguishable.

For the reasons recorded above, I am of the view that the Courts below did not properly appreciate the facts of the case, the balance of convenience and irreparable loss and injury which would be caused to either of the party by granting or refusing temporary injunction and thus failed to exercise their jurisdiction in accordance with the Jaw which resulted in the manifest injustice to the landlord calling for interference in the revisional jurisdiction of this Court.

Accordingly, the revision petition is allowed, the orders of the courts below are set aside and the application, for temporary injunction is dismissed leaving the parties to bear their own costs.