Indu Khanna vs Paras Ram and Others

Deepak Gupta, J.—This petition is directed against the order dated 29.9.2008 passed by the learned District Judge, Solan whereby he allowed the appeal filed by the respondents (hereinafter referred to as the ''defendants'') and set aside the order of status quo passed by the learned Trial Court on 22.2.2008.

The brief facts of the case are that the plaintiff-petitioner entered into a rent deed with defendant No. 2, Balwant Singh on 6.7.2006. By means of this rent deed, the petitioner took on rent the premises measuring 56 feet x 24 feet comprising of three shutters and two room down stairs from defendant No. 2. The three shutters (shops) were on the road level and two rooms were down stairs. The plaintiff was given the possession of this property. Clause 14 of the said rent deed reads as follows:

That the second party can use the top floor of the shops for sitting purpose and also the adjoining floor to the shops till space is vacated.

The defendant No. 2 sold the vacant space adjoining the three shutters (shops rented out to the petitioner) to defendant No. 1. Thereafter, the plaintiff filed the present suit claiming that under the rent deed, she had a right to use the said open area and the defendant No. 1 be restrained from interfering in her right to use the same. Alongwith the suit, an application for interim relief was filed. The learned Trial Court directed that both the parties should maintain status quo qua the suit property.

However, the learned District Judge came to the conclusion that the plaintiff is not entitled to any relief. According to him, Clause 14 of the agreement, quoted hereinabove, -granted a licence in favour of the plaintiff and this licence came to an end by virtue of Section 61 and 62 of the Indian Easement Act.

A party who wants to obtain interim orders must satisfy at least three conditions (i) that it has a prima facie case (ii) that the balance of convenience is in its favour and (iii) that in case interim relief is not granted, it shall suffer an irreparable loss and injury.

In the present case, I am of the considered view, that the plaintiff has miserably failed to show that she has any prima facie case. Admittedly, the premises rented out to her are a built up construction, measuring 56 feet x 24 feet with three shutters on the road level and two rooms on the level below. The adjoining land belonged to the defendant No. 2 and he had permitted the plaintiff to use the adjoining land as also the roof level of the shops rented out to the plaintiff. This user as held by the learned Lower Appellate Court was a permissive licence. In the present case, we are only concerned with the adjoining property which has admittedly been sold to the defendant No. 1. Even as per the averments made, no rent is being paid for the use of this property. The plaintiff was permitted to use the said open area only for sitting purposes. Clause 14 is not happily worded but when the entire agreement is read as a whole, it is more than apparent that by the rent agreement, the plaintiff was permitted to use the top floor of the shops for sitting purpose and the vacant area adjoining the shops till the space is vacated. Now, the owner of the area is defendant No. 1. The plaintiff has no right to use the said premises in any capacity since he is neither a tenant nor the owner of the same. There is no prima facie case in his favour.

The balance of convenience is also in favour of the defendant. Why should the defendant No. 1 be deprived of the use of his property when admittedly the plaintiff is not even paying rent for the same. It is obvious that the plaintiff is not using this property for any fruitful purpose but only to sit or to store his goods. In case the defendant No. 1 is permitted to use the property, he can put it to much better use and can raise construction thereon also. Therefore, the balance of convenience is also in favour of the defendant No. 1.

In view of the above discussion, I find no merit in the petition which is accordingly dismissed. The order of the learned District Judge is upheld. It is however, made clear that in case any construction is raised by defendant No. 1, the same shall abide by the decision of the civil suit. No order as to costs.