JUDGMENT B.N. Kirpal, J.
(1) This order will dispose of the application filed by the plaintiff under Order 40 Rul(r) I for appointment of a Receiver and under Order 39 Rules I and 2 for the issue of an injunction against the defendants.
(2) Briefly stated, the facts as alleged by the plaintiff, and which are not disputed by the defendants, are that the plaintiff is the owner of Block No. A, Connaught Place, New Delhi known as Kashi House.
(3) On the ground floor of the said building there is a shop. No. A-3. The said shop measures 1830 sq. ft. on the ground floor and has a mezzanine floor measuring about 330 sq. ft. Besides that, there is an open compound measuring about 250 sq. ft. According to the plaintiff, on 15th September. 1936 the said shop was let out by the predecessor-in-interest of .the plaintiff, namely, his father to Mrs. F. Lawrence Enid. It is not necessary to give any Further details with regard to the tenancy of the shop in favor of Mrs. Enid except to notice that it is an accepted position of all the parties to the suit that Mrs. Enid was the sole-tenant of the aforesaid shop till she died on 23rd March. 1988.
(4) According to the plaintiff, Mrs. Enid did not leave behind any heirs or next of kin and the said property became free of any tenancy claim with her death. The defendants Nos. 2,4 and 5 were stated to be, by the plaintiff, business associates of Mrs. Enid and acording to the plaintiff the said defendants have no right to the premises in question. Defendant No. 6 was Smt. Kasturi Devi who was in occupation of a part of the said building, though not of the said shop.
(5) In the suit as originally filed, the plaintiff prayed that defendants 2 to 6 be restrained by perpetual injunction from trespassing into the premises A-3, Connaught Place, New Delhi or from trying to start and carry on any business therein.
(6) In the written statement which is filed by defendants 2, 4 and 5, it has been contended that sometimes in 1982 a partnership came into existence of which, apart from Mrs. Enid, defendants 4 and 5 were also partners. It is further stated that Mrs. Enid was the sole tenant of the premises in question and that the partnership firm did not have any tenancy right threin. It is, however, the case of the defendants that Mrs. Enid had executed a will whereby the tenancy rights in the said shop had been bequeathed by her lo defendant No 2. The defendants, therefore, submit that they are in a lawful possession of the premises as defendant No. 2 has now entered into a partnership with defendants 4 and 5.
(7) Before dealing with the various contentions which have been raised, one further fact may be taken note of and that is that according to the plaintiff the tenancy of Mrs. Enid was terminated by a notice dated 5th April, 1971 which was issued to her and which was replied to by her counsel by letter dated 9th April, 1971. The case of the plaintiff is that Mrs. Enid was a statutory tenant at the time of her death and, therefore, she could not, in any event, bequeath her alleged interest in the property in favor of defendant No. 2.
(8) On 29th March, 1988 defendants 2 to 6 were restrained, by an ad interim ex parte injunction, from entering the said premises. Thereafter by order dated 7th April, 1988 .Shri Jatinder Sethi, Advocate was appointed as a Local Commissioner to visit the premises. The Local Commissioner has filed a report along with an inventory of the goods lying therein and the report also states that the keys of the locks to the main entrance as well as of the almirahs inside were with defendants 2, 4 and 5.
(9) During the course of arguments, learned counsel for the plaintiff sought leave to amend the plaint so as to seek additional relief of mandatory injunction as well as the relief of possession. This amendment was sought because an objection had been raised by the defendants to the frame of the suit. By order dated 19th April, 1988 the said amendment was allowed and amended plaint has now been filed.
(10) The contention on behalf of the plaintiff is that the defendants have no legal right to the property ia question. According to Shri Arun Mohan the defendants cannot be stated to be in lawful possession of the said property and they should be restrained from entering the said premises. It is submitted by the learned counsel that prima facie Mrs. Enid could not in law bequeath her interest in the property in favor of defendant No. 2 and as such the said defendants have no right to get physical possession of the said premises. It was also submitted by Mr. Arun Mohan that the Rent Control Act being a beneficial legislation, there could be no bequest of the tenancy. While praying for the appointment of a Receiver, in the event of injunction not being issued, learned counsel further submitted that in the facts of this case it was just and convenient that a Receiver should be appointed (11) In support of his contention that the defendants have no legal right to be in possession of the premises, the learned counsel for the plaintiff has referred to Jaspal Singh v. The Additional District Judge, Bulandshahr and others. Air 1984 Supreme Court, 1980, Smt. Gian Devi Anand v. Jeevan Kumar and others, and Bhavarlal Lahhchand Shah v. Kanaiyalal Nathalal Intawala, and sought to contend that a tenant cannot bequeath his rights ii favor of a stranger. Referring to the various provisions of the Delhi Rent Control Act, the learned counsel submits that the Rent Control Act gives a protection only to the tenant and to the members of his family. The Rent Control Act does not postulate, it is contended, the transfer of the premises, without the concert of the owner, to an outsider. It is submitted that if in his life time the tenant cannot transfer the tenancy rights to a stranger, similarly he cannot transfer the said rights by making a will. Strong reliance in this behalf is placed on the observations of the Supreme Court in Bhavorlal's case (supra).
(12) Mr. Sorabjee, the learned counsel for the defendants, has, however, submitted that the aforesaid decisions of the Supreme Court are clearly distinguishable. His submission is that in Jaspal Singh's case (supra) the Court was concerned with the specific provisions of the Rent Control Act of U.P. whereas in Bhavarlal's case (supra), the Court was concerned with the provisions of the Bombay Rent Control Act which contained an express prohibition against the transfer of the tenancy rights by the tenant. The learned counsel submits, while relying upon the observations of the Supreme Court in Gian Devi's case (supra), that under the Delhi Rent Control Act there is no restriction as to the class of heirs who are to inherit on the demise of a tenant in respect of commercial premises. The learned counsel submits that in respect of the Delhi Rent Control Act, on the demise of a tenant all categories of heirs are entitled to inherit and get the protection of the Act irrespective of the fact whether the successor inherits by virtue of a will or by virtue of his being related to the tenant and his succeeding intestate. It is further submitted by the learned counsel that in Bhavarlal's case (supra) the Supreme Court has specifically stated that they were disposing of the case on the express provisions of the Act which were sufficiently restrictive in character and the Court did not propose to deal with the wider proposition that a statutory tenancy, which is personal to the tenant, cannot be bequeathed at all under a will in favor of anybody. The learned counsel, therefore, submits that it is not a settled law that in respect of tenancies, whether statutory or otherwise, the same cannot be bequeathed.
(13) Dealing first with the contention raised by the learned counsel for the plaintiff with regard to the grant of an injunction, it is no doubt true that the Court does have the power, in a suit for mandatory injunction like the present, to grant interim relief but this relief has, to my mind, to be granted only in rare or exceptional cases. If more that a prima facie case is made out by the plaintiff to the likelihood of the suit being decreed, and if there is no tangible defense raised by the defendants, and if manifest injustice would be done if interim injunction is not granted, then the Court would, in exceptional circumstances, be justified in granting interim relief. In the present case, I find that it is not possible to come to the conclusion that the defense raised by the defendants is, on the face of it, unarguable. It may be that on a closer scrutiny after the case has been tried, the Court may well come to the conclusion that the defendants have no legal right to the property and that the tenancy rights could not be bequeathed by Mrs. Enid but this decision ought not, to my mind, be given at this interlocutory stage. This question as to whether the statutory tenancy could be bequeathed by Mrs. Enid has to be finally adjudicated only after the trial of the suit. It would not be proper, to my mind, to give a final verdict on this most important, but debatable question of law at this interlocutory stage.
(14) In the present case, it is no doubt true that the defendants were not the tenants as long as Mrs Enid was alive, nevertheless the documents on the record do show, and learned counsel for the plaintiff has accepted, that a partnership had come into existence. This showed that defendant Nos. 4 and 5 were partners of Mrs. Enid. Defendant Nos. 4 and 5, therefore, had permissive user of the premises, the permission being granted by Mrs. Enid. It was made clear in the partnership deed that Mrs. Enid would remain the tenant but the premises were in the occupation of defendants 4 and 5 as well, as partners of Mrs. Enid. The said defendants 4 and 5 may not have had independent right from the landlord to remain in the premises but they were permitted by the tenant to use the said premises as her partners. It is not, therefore, possible to regard the said defendants 4 and 5 as trespassers in the premises as long as Mrs. Enid was alive. After the death of Mrs. Enid the defendants are relying upon the will of Mrs. Enid. The defendants are claiming a right to the tenancy by virtue of the will and it appears to me that the defendants continue to remain in occupation of the premises in question even after 23rd March, 1988. Whether they arc in lawful possession or not is a separate question but what is important is that they have been in occupation of these premises from 1982 till now, firstly as partners of Mrs. Enid and now by setting up a claim under the will of Mrs. Enid. It is, under these circumstances, not possible for me to come to the conclusion that the case is crystal clear as far as the plaintiff is concerned. I cannot, at this stage, give a categorical finding that there is absolutely no merit in the case of the defendants and the defense put up by the defendants is wholly untenable in law. As I have already indicated, the proposition of law which arises in this case has been bona fide defense and certainly deserves a serious consideration. It is a proposition of law which, according to Shri Sorabjee, has been expressly left open by the Supreme Court in Bhavarlal's case (supra) and a decision of this question at the inter-locator stage may seriously prejudice the trial of the suit.
(15) It had been contended by the Shri Arun Mohan that it was just and convenient that a Receiver should be appointed. He had relied on a number of decisions in an effort to show that where the defendants have no right to remain in possession, the Courts have appointed Receivers. I have serious reservations about the correctness of such a wide proposition. However, it appears to me that where there is a bona fide defense which has been set-up and where the proposition of law is arguable, it is not advisable for the Court to appoint a Receiver to take possession of immovable property from the defendants unless and until the Court is of the opinion that, as observed by the Privy Council in the case of Benoy Krishna Mukerjee and others v. Salish Chandra Giri and others Air 1928 P.C. 49, there is a well founded fear that the property in question will be dissipated, or that other irreparable mischief may be done unless the Court gives a protection. To the same effect are the observations of a Division Bench of the Allahabad High Court reported in .S. B. Industries, Freegunj and another, v. United Bank of India and others, . The Madras High Court bad an occasion to deal with such a question and after reviewing the cases decided on this aspect, laid down 5 principles which had to be kept in mind while appointing Receivers. In T. Krishnaswamy Chetty v, C. Thangovelu Chetty and others, , Ramaswami, J. held as follows : "The five principles which can be described as the 'panch sadachar' of our Courts exercising equity jurisdiction in appointing receivers are as follows: (1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a sound and Judicial discretion, taking into account all the circumstances of the case,exercised for the purpose of Permitting the ends of justice, and protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding. (2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie be has very excellent chance of succeeding in the suit. (Italics added). "(3) Not only must the plaintiff shows a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. A Court will not act on possible danger only; the danger must be great and imminent demanding immediate relief It has been truly said that a Court will never appoint a receiver merely on the ground that it will do no harm. (4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the dispute is as to title only, the court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the Court will interpose by receiver for the security of the property. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one, as the Court can hardly do wrong in taking possession; it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful enjoyment of the property and no harm can be done to anyone by taking it and preserving it for the benefit of the legitimate who may prove successful. Therefore, even if there is no allegation of waste and mismanagement the fact that the property is more or less 'in medio' is sufficient to vest a Court with jurisdiction to appoint a receiver. Otherwise a receiver should not be appointed in supersession of a bona fide possessor of property in controversy and bona fides have to be presumed until the contrary is established or "can be indubitably inferred. (5) The Court, on the application of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. He must come to Court with clean bands and should not have disentitled himself to the equitable relief by laches, delay, acquiescence etc."
(16) In my opinion, therefore, keeping in mind the balance of convenience, the aforesaid principles and other circumstances, it is not in the interest of justice to issue any injunction restraining the use of the premises by the said defendants or in appointing the Receiver. I accordingly vacate the interim orders but direct the defendants and injunct them from transferring, parting with possession alienating in any manner the said premises or from inducting any new partners in respect of the business being conducted therein or from bequeathing the said premises to any one else during the pendency of the suit. I further direct the defendants to pay to the plaintiff, for use and occupation of the said premises, a sum of Rs. 5000.00 per month.