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Judgment
The appellant is the landlord. The suit has been filed for permanent injunction against the tenant/respondent for misusing the passage rented
exclusively for domestic purpose and from being used for commercial activities and for mandatory injunction to remove the lock put up by the
defendant/tenant thereby preventing the landlord/plaintiff from using the passage.
The trial Court after considering the evidence let in by the respective parties decreed the suit as prayed for. Aggrieved by that, the
defendant/tenant preferred appeal in A.S.No.437 of 2005 and in that appeal, the first appellate Court considering the terms found in the Ex.A.2,
partly allowed the appeal to the effect that the defendant/tenant is entitled to use the passage for his commercial activities also. Thus, aggrieved by
the judgment of the first appellate Court, the plaintiff/landlord has preferred the second appeal.
At the time of admission, this Court has issued notice to the respondent to ascertain whether there is any substantial question of law existence to
interfere with the judgment of the first appellate Court. On notice the respondent has entered appearance through counsel and put forth his point of
argument.
The brief facts leading to the case are as under:-
The suit property was owned by one Kanniah Chetty and he had leased out a major portion of the ground floor to one M/s. Sha Magajee Asaldas
represented by its partner Kantilal. While the front portion of the ground floor was meant for commercial activities the rear portion was meant
exclusively for residencial purpose. Contra to this understanding, the defendant/tenant converted the rear portion as godown and started storing his
goods and using the common passage causing disturbance to the residents of the first and second floor and also to the other shop owners on the
southern side of the passage.
The defendant/tenant contested the suit on the ground that the property was rented for commercial purpose and there is no restriction in using
the passage for commercial activities. Further, it was also contested by the defendant/tenant that being a partnership firm, the said Kathilal, who
represented the firm retired and he has been replaced by one Mahendra Kumar. Without impleading the said Mahendra Kumar the appeal is filed.
The trial Court after considering the evidence let in by the parties held that the passage cannot be used for commercial purpose and the attitude
of the defendant/tenant closing the gate of the passage is against the terms of the contract and therefore, decreed the suit as prayed for. However,
the first appellate Court considering the terms found in Exs.A.1 and A2, held that the defendant/tenant is entitled to use the passage for his
commercial activities and therefore, he cannot be restrained from making use of the passage, thereby the appellate Court while confirming the
injunction restraining the defendant from locking the gates of the passage, set aside the relief of injunction granted against the defendant regarding
the manner of using the said passage.
After hearing the learned counsel appearing for the appellant and considering the judgments of the Courts below the following substantial
questions of law are formulated :-
Whether the appellate Court right in law in holding that the suit passage can be used for non residential purpose without giving any finding on the
crucial issue whether the use of the passage for non residential purpose would create distrubance and nuisance to the appellant?
Whether the appellate Court right in law by interpreting the recitals of Ex.A.2 lease agreement that the suit passage can be used for non
residential purpose when there was evidence on record that the suit passage was provided for the used of the defendant to have access to her rear
side residential portion and that there was no non residential portion to be accessed through the suit passage.
The learned counsel for the appellant submitted that the appellate Court erred in interpreting the recital of Ex.A.2-lease agreement as if the suit
passage can be used for non-residential purpose contra to the evidence on record and the appellate Court failed to appreciate the evidence on
record that the common passage has to be used for the residents of first and second floor and the same cannot be put into use for commercial
activities which caused disturbance and nuisance to the residents.
Per contra, the learned counsel for the respondent submitted that while the landlord had permitted to use the grinding stone and tap, which are
located in the ground floor, there is no other restriction for the tenant to use the passage. While so, as per Ex.A.2, the tenant is entitled to use the
passage in the manner he likes and there cannot be any restriction in the manner he uses the passage. Further more, having leased out the property
for commercial activities, the appellant/landlord cannot restrict the manner of usage of the passage by way of suit. Since already a rent control
proceedings is pending between the parties, the present suit is not maintainable.
From the evidence, it is obvious that the suit premises was originally owned by the appellant''s father and the present appellant has inherited it
through testamentary succession from his father. A major portion of the ground floor has been leased out to the respondent herein. As per the plan
annexed to the plaint, it is evident that the entire backyard of the suit property has been leased out to the respondent along with portion north of the
passage. It is an admitted fact that the northern side of the passage is used for commercial purpose, wherein, the respondent is running his business
along with the entire backyard. The portion of the property leased out to the respondent is marked as ABCDEFGA in the suit plan. It is the
contention of the plaintiff that the passage is used by the residents living in the upstairs of the building and other shops owners and the passage
should be used only for the residential purpose. The defendant/tenant, contra to the terms, is using the passage to carry the gunny bags through the
passage by causing disturbance and nuisances to the plaintiff.
The trial Court while considering the facts and evidence, has accepted the plea of the plaintiff and allowed the suit.
Whereas the first appellate Court giving weightage to Ex.A.2 has modified the trial Court judgment to the effect that the defendant/tenant is entitled
to use the passage for his commercial activities.
A close perusal of Ex.A.2 shows that it is a letter containing terms in the form of agreement from the respondent to the father of the present
appellant. Ex.A.2 indicates that it is an agreement for a period of three years and advance of Rs.300/- has been paid to the landlord, however, it
was not a registered deed. So the terms of the contract cannot be looked into for any other purpose except for collateral purpose. However, the
first appellate Court has gone into the terms and conditions found in this document.
Even otherwise the terms and conditions as found in Ex.A.2 does not give any right or liberty to the tenant to use the passage for his
commercial activities. Admittedly the building is used both for commercial and residential and the passage is used in common by several tenants
including residential tenants. So the usage of the passage cannot be at the cost and hindrances to other co-user. The terms found in Ex.A.2 do not
confirm any exclusive rights to the respondent to use the passage. In fact the recital of Ex.A.2 exempted the shop and room on the southern side
adjoining the staircase and also give the right to make use of the amenities located in the ground floor like grinding stone and tap. It is not the case
of the defendant/tenant that to access to backyard he has to necessarily use the passage. The defendant/tenant has his own exclusive access to
reach the suit premises including the backyard which is marked as BCDEF. Therefore if at all he wants to use the passage it shall always be with a
limitation. He cannot disturb the co-occupiers of the premises more fully when there are residents using the staircase to reach their portion.
Therefore, this Court finds that the judgment of the first appellate Court modifying the trial Court Judgement is erroneous. The terms and
conditions found in Ex.A.2 have been wrongly interpreted by the appellate Court. More over, the appreciation of Ex.A.2 itself is illegal and not
sustainable since it is an un-registered document leasing out the property for the period of three years. Therefore, recital of an un-registered
document, which requires registration under law, cannot be considered for evidence. For the said reason, the appeal is allowed. The appellate
Court judgment is set side and the trial Court judgment is confirmed with costs. Consequently connected miscellaneous petition is closed.