Textile House Vs. Ganga Ram and Sons - Court Judgment

Excerpt:
civil procedure code 1908 - order 39 rule 1 & 2--application seeking relief of status quo ante--parties sharing a common hall for vending of goods--defendants creating obstruction by putting up wooden shelf in the middle of the hall--local commissioner supporting the allegations--no culpable delay on the part of the plaintiff to seek the relief--interim injunction in the nature of status quo ante granted. - - different but allied lines of business appear to have been chosen by the parties so as to avoid competition inter se as also to enjoy the benefit of boost in sales by holding out their goods to the customers on the opposite counter. the open space in the hall between the two counters is meant for common use, mostly for movement of customers (5) it appears that all went well till 20.5.93 when shri ganga ram, the patria potestas left for eternal departure. the plaintiff complain that on 640 4th/5th september, 1993 the defendant tried to create an obstruction in the smooth running of business and business activities of the plaintiff by placing a wooden shelf and a wooden counter projecting and thus stretching and extending itself into the left hand side of the hall. it is also likely to adversely effect the good will of the plaintiff which depends also on the graceful and spacious arrangement of show-windows and counter in the plaintiff's business premises. having failed in its efforts and expectations, the plaintiff filed this suit. (8) the commissioner found that the disputed wooden shelf measuring 91' in height and 80' in length stacked with a lot of miscellaneous like plastic bags, carrying paper, files, bill books, directories etc. - during the inspection i observed that the wooden shelves and the counter completely obstruct the working space of the plain- 641 tiffs as it very effectively divides the selling counters of the plaintiffs in two halves obstructing one from the other. at best, assuming the documents filed to be correct, the status of the plaintiff would not be better than that of a licensee and the defendant having terminated the plaintiff's license and having withdrawn the permission granted to the plaintiff to use the premises, the plaintiff cannot seek injunction sought for against the defendant. (10) the respective cases of the parties have to be tested on the anvil of the three well settled tenets to the grant of ad interim injunction, i. over and above scrutinising the case for availability of three well settled tenets for the grant of any other injunction in the case of prayer for the grant of temporary injunction in mandatory form the court shall watch if the plaintiff has by his delay or inaction made the position irreversible or created a situation disentitling him from relief.r.c. lahoti, j. (1) i.a. no.8629/93 i.s an application dated 30.9.93 order 39 rules 1-2 cpc seeking an ad interim preventive injunction restraining the defendant from placing any goods stacks or any other item on the wooden shelf or in the window counter or using the same or carrying on its business from the said place in any manner whatsoever. i.a. no-8630/93 of the same date is filed under section 151 civil procedure code seeking a temporary injunction in mandatory form directing the defendant to immediately remove the wooden shelf kept by the defendant so as to enable the plaintiff to carry on its business properly . (2) the parties forming partnerships described as plaintiff and defendant no.1 respectively are related with each other. briefly stated, defendant no.2 and 3 are related as uncles to the three partners of the plaintiff firm. there are business premises situated in the commercial locality of connaught place, described as 14, regal building popularly known as tea house. the said premises were in the tenancy of shri kishan lal suri. he had a right to sub-let the premises under the deed of lease entered into by 638 him with the landlords. exercising the said option he sub let the premises to m/s. ganga ram & sons huf and informed the landlords requesting the latter to issue rent receipts to m/s ganga ram & sons. this is an arrangement arrived at in july, 1978. (3) prior to this date m/s textile house, the plaintiff, was carrying on its business somewhere at karol bagh, new delhi. now it shifted into the suit premises. there were certain changes .in the constitution of the firm which are not much relevant. on 31.12.1984, there was a partition in the joint hindu family . of the parties. a memorandum of partition was recorded. that document is not in dispute. it was acknowledged therein that the huf was enjoying leasehold rights in the said premises. in the partition the leasehold rights had fallen to the exclusive share of ganga ram huf consisting of shri ganga ram and his wife shanti devi and none else. shiv lal & sons huf running the plaintiff firm relinquished and ceased to have any interest in the huf business of ganga ram & sons which 'was being conducted in the suit premises. the following recital in the memorandum of partition is relevant, also of some importance and is thereforee extracted and reproduced hereunder: 'the business of textile house has throughout belonged to shiv lal-(individual) and his son and the huf of shri shiv lal had no interest in its profits and gains. .this partnership will continue to have its business in the same premises and will continue to pay commission to ganga ram huf in lieu of their occupation of the premises and to none else. none of the other parties will have any interest in the profit and gains of the business of textile house.' 1. on sub lease having been secure from mr suri, the first receipt executed by him in favor of the parties to the suit is also of relevance for its contents and hence that too is reproduced hereunder : receipt received with thanks from m/s. ganga ram & sons,34b, northern ex:ension area, pusa road new delhi, a sum of rs.2,00,000.00 say rupees two lakhs only vide following cheques : i) cheque no. 630027 dated 1.1.79 drawn on the punjab & sind bank ltd karol bagh drawn by shri madan lal for rs.50,000/ say rupees fifty thousand only. ii) cheque no. 937056 dated 1.1.79 drawn on the punjab & sind bank ltd karol bagh drawn by shri sarup lal for rs.50,000/ say rupees fifty thousand only. 639 iii) cheque no. 110650 dated 1.1.1979 drawn on the bank of rajasthan ltd, karol bagh new delhi drawn by m/s textile house wea ajmal khan road karol bagh new delhi-5 for a sum of rs l,00,000/ say rupees one lakh only. the above mentioned payment is on account of the following and on the following terms and conditions : a) that the above said sum is against moveable property and goodwill of m/s. tea house (restaurant) 14, regal building, new delhi. b) that the moveable property consists of some fans, furniture etc. c) that the receipt of money i.e. shri k.l. suri shall have no right on the business of m/s tea house henceforth. d) that all the expenses of m/s tea house including rent electricity charges and other amount payable to the landlord or any other authority shall be the liability of shri k.l. suri till 17.7.78 and after that it shall be the liability of m/s ganga ram & sons.' (4) sketch map of the suit premises and a few photographs-have been filed. they show the situation of the sale counters of the contesting parties. they also demonstrate the manner in which the premises are being used. if appears that the premises are a big hall having two entrances situated side by side with each other. though two yet they form practically one entrance only. having entered the hall from the entrance, one would find left part of the hall being used by the plaintiff and the right hand part being used by the defendant. the hall is being shared practically on an equal basis. the plaintiff deals in sarees, ladies dress material, shawls etc and at times in ladies readymade dress also. the defendant dealing in raymonds and gwalior suitings products caters to similar needs of gents. thus, in a way, the two business run by the two parties are complementary with each other. different but allied lines of business appear to have been chosen by the parties so as to avoid competition inter se as also to enjoy the benefit of boost in sales by holding out their goods to the customers on the opposite counter. the open space in the hall between the two counters is meant for common use, mostly for movement of customers (5) it appears that all went well till 20.5.93 when shri ganga ram, the patria potestas left for eternal departure. the plaintiff complain that on 640 4th/5th september, 1993 the defendant tried to create an obstruction in the smooth running of business and business activities of the plaintiff by placing a wooden shelf and a wooden counter projecting and thus stretching and extending itself into the left hand side of the hall. the wooden shelf is seven feet in height and six feet in length. it is so placed as to be immediately behind the sitting arrangement made by the plaintiff for its customers at the saree counter. the shelf .blocks the view of the inside show-windows of the plaintiff for the customers. it also restricts the very passage of the customers who wish to move from the counter of the plaintiff to the other. height of the shelf has obstructed ventilation too. (6) the plaintiff's grievance is that this wholly unwarranted act of the defendant has created a disturbance in the business activities of the plaintiff. it is also likely to adversely effect the good will of the plaintiff which depends also on the graceful and spacious arrangement of show-windows and counter in the plaintiff's business premises. the plaintiff initially made efforts at amicable settlement by seeking indulgence of common relatives expecting that the defendants would see reason and would remove the shelf and counter newly and unjustifiably introduced by them into the part of the premises in the use or common use of the plaintiff. having failed in its efforts and expectations, the plaintiff filed this suit. (7) on a prayer made on behalf of the plaintiff, this court directed appointment of a commissioner for local inspection ms. ameeta verma an advocate on this court to inspect the suit premises on 1.10.1993. she inspected the premises in the presence of ashok adiakha partner of the plaintiff firm and its counsel. mr vishal adiakha son of shri sarup lal adiakha defendant no.2, was also present in the shop at the time of in section. (8) the commissioner found that the disputed wooden shelf measuring 91' in height and 80' in length stacked with a lot of miscellaneous like plastic bags, carrying paper, files, bill books, directories etc. the disputed counter measuring 34.5' x 36' x 30' was lying vacant. the counter was not being used for conducting any business and only a law books and files were stacked underneath the counter. there wns no stool placed next to the counter. the commissioner also found the position/condition of the counter and wooden-shelf identical to what was shown in the photographs filed by the plaintiff. further to quote from the report of the commissioner, she found:- 'during the inspection i observed that the wooden shelves and the counter completely obstruct the working space of the plain- 641 tiffs as it very effectively divides the selling counters of the plaintiffs in two halves obstructing one from the other. the counters belonging to the plaintiff and situated at the further end of the shop were completely blocked due to the placing of the counter and shelves in dispute and are not visible to the person sitting at the cash counter which is situated at the entrance of the shop. it also disrupts the passage of the salesman working at the counters beyond the wooden counter in dispute. the sketch annexed by the plaintiff at page 14 of the documents, fairly illustrates the present position in the shop.' (9) at this point let the stand taken by the defendant be noticed. briefly stated the defendant vehemently relied on their having acquired the tenancy right absolutely. according to them the plaintiff firm is merely a commission agent of the defendants. at best, assuming the documents filed to be correct, the status of the plaintiff would not be better than that of a licensee and the defendant having terminated the plaintiff's license and having withdrawn the permission granted to the plaintiff to use the premises, the plaintiff cannot seek injunction sought for against the defendant. in any case, the plaintiff's is not entitled to protection of the court. indeed, the defendants have also disputed their having recently created an obstruction by putting a shelf and the counter midway the hall as alleged by the plaintiff. (10) the respective cases of the parties have to be tested on the anvil of the three well settled tenets to the grant of ad interim injunction, i.e. prima facie case, balance of convenience and irreparable injury. (11) the receipt executed .by shri k.l. suri and reproduced in para 4 of this order shows out of a total payment of rs. 2 lakhs, an amount of rs. 1 lakh having been paid by the plaintiff firm. whatever might have been the heads under which the three cheques were given, it cannot be denied that the plaintiff firm had contributed 50% of the amount paid to shri k.l. suri. (12) the parties are related with each other. the memorandum of partition executed between the members of the family, referred to in para 3 above, acknowledges the plaintiff partnership carrying on its business in the premises and recognising its right to 'continue' its business in the same premises. no length of time is prescribed for which this arrangement was intended to continue. the only arrangement devised was for compensating ganga ram huf though payment by way of commission. this payment of commission was in lieu of occupation by the plaintiff of 642 the premises. much can be argued on either side to determine the exact status of the plaintiff firm qua the suit premises. whether it was a lease created or a license in perpetuity created as argued by the counsel for the plaintiff. much would depend on the construction of the terms of document in the light of the facts and circumstances of the case. without expressing any final opinion, suffice it to observe that the plaintiff does have a prima facie case. it cannot be said that the plaintiffs is a rank trespasser having no title or insignia of title to use the suit premises. the plaintiff has raised a serious question to be tried and if it succeeds in substantiating its averments, it is likely to have the relief asked for. (13) the report of the commissioner and the photographs filed by the ' plaintiff go to show the plaintiff having a smoothly running business in the suit premises. putting up a shelf and a counter midway the hall by the defendants does not appear to have any justification prima facie. it is sure to occasion an interference with the smooth sailing of the plaintiff's business. t he grievance raised in this regard by the plaintiff in the plaint appears to be justified. the shelf and counter are not being put to any use by the defendant as found by the commissioner. if the two are directed to be removed the defendant would not suffer no material has been brought on record by the defendant enabling a holding of any injury, much less an irreparable one, if the shelf and the counter are mandated to be removed. thus, the balance of convenience lies in favor of the plaintiff and the plaintiff is sure to suffer irreparable injury if the interim relief as prayed for is not allowed to it. (14) a few interim orders passed in this case are relevant to notice at this stage. 15.1 on 1.10.1993 while hearing i.a. no. 8629/93 this court while directing appointment of commissioner also directed: 'in the meantime the defendants are directed to maintain status as . of today.' 15.2 on 5.5.94, this court directed a clarification to be made presumably it must have been on a prayer made by the defendant, though not so mentioned, the court said : 'in the meantime, it is clarified that the defendants can put to use the counters which are already existing as shown in the photographs at p-10 taken on 6th september, 1993. they shall, however, not extend the area of those counters in any manner nor will they interfere with the running of the business of the plaintiff on his side of the show room till the next date of hearing' 643 15.3 order dated 5.5.94, was challenged in appeal filed by the plaintiff. the division bench vide order dated 11.5.94 directed the order dated 5.5.94 to be suspended and the order dated 1.10.1993 to be revived. 15.4 on 1.8.94 the division bench on a prayer made on behalf of the defendants herein pressing for modification of the order dated 11.5.94 of the division bench directed that the bench was not inclined to modify the order. however, the division bench ordered: 'the status quo order has to be read along with the report of the local commissioner, which is at page 37 of the paper book. that would prima facie, show that the wooden shelf and the counter in question were not being put to use by the defendants. that status quo will be maintained till the matter is taken up by the learned single judge on 23.8.94.' 15.5 it appears that the appeal before the division bench is still pending. the fact remains that the wooden shelf and the counter stacked at a place midway the hall are not being put to any use by the defendant. (15) ordinarily an injunction is to be granted to preserve and maintain the status quo as obtaining on the date of the suit. an ad interim injunction in mandatory form is not to be granted ordinarily, but, nevertheless the power to grant does exist and is meant to be exercised in appropriate cases. over and above scrutinising the case for availability of three well settled tenets for the grant of any other injunction in the case of prayer for the grant of temporary injunction in mandatory form the court shall watch if the plaintiff has by his delay or inaction made the position irreversible or created a situation disentitling him from relief. in the case at hand there has been ho culpable delay, the defendants have merely stacked wooden shelf and counter on floor without putting them to any use. court should interfere so as to restore between the parties use and enjoyment of the suit property as before. (16) the present one is considered to be a fit case in which the court ought to exercise the power to issue injunction in mandatory form. (17) for the foregoing reasons, the application filed by the plaintiff are allowed. it is directed that within a period of three days from the date of the order the defendant shall remove the disputed wooden shelf and the counter to enable the plaintiff to carry on its business as before. it is further directed that during the pendency of this suit the defendants shall not 644 either by them selves or through their agents, servants or representatives create any obstruction by putting wooden shelf or counter or otherwise so as to alter the status quo.