1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5291 OF 2009 Kamal Gordhan Mahtani & Anr. ...Petitioners vs. Kotak & Co.Ltd. & Anr. ...Respondents Mr. S.U.Kamdar, Senior Advocate a/w Mr.Mahesh Menon i/b M/s.Mahesh Menon & Co for the petitioners Mr.G.S.Godbole i/b Mr.A.G.Revankar & Co. for respondent no.1 CORAM :A.S.OKA,J. DATE : APRIL 28, 2010 P.C.: 1 Submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the petition will be disposed of finally at the stage of admission. The attention of the learned counsel appearing for the 1st respondent is invited to the order dated 13th April 2010.He states that he does not want to make any further submissions. 2 The petitioners in this writ petition under Article 227 of the Constitution of India are the original plaintiffs. An application made by the petitioners for temporary injunction has been rejected by the trial Court and in appeal, the said order has been confirmed. 3 According to the case of the petitioners, one Mr.Gordhan Dhanamal Mahtani, sole proprietor of M/s.Issardas Tilusing was the tenant in respect of the suit premises. The said Gordhan Dhanamal Mahtani filed a declaratory suit being R.A.D.suit No.3085 of 1981 in the Court of Small Causes. During the pendency of the said suit, the said Gordhan died and the present petitioners 2 were brought on record as his legal representatives. The suit was partly decreed and it was declared that the present petitioners were lawful sub-tenants of M/s.P.A.Associates (2nd respondent herein). In the present suit, the petitioners stated that the first respondent is claiming to be an owner and landlord in respect of the suit premises. A reference is made to the suit being R.A.E.Suit No. 642/1130 of 2008 filed by the 2nd respondent against the petitioners. There is another suit filed by the first respondent being R.A.D. suit no.1300 of 2008 in respect of the suit premises. The said suit has been filed by the first respondent against the petitioners and the 2nd respondent for injunction restraining the petitioners and 2nd respondent from inducting any third party in the suit premises. The 1st respondent has also filed a suit for eviction against the petitioners and the 2nd and 3rd respondents. All the suits are still pending. According to the case of the petitioners on 1st July 2008, he started a business of mobile phones, music cassettes, CDs, CD Rooms, VCDs, DVDs, planet-M branded merchandise and other merchandise in the suit premises. The case of the petitioners is that they are carrying on business under the name and style of M/s.Issardas Tilusing in the suit premises. The case made out in the plaint is that there are electric meters installed for the benefit of suit premises. Reliance is placed on letter dated 14th July 2008 sent by the 2nd petitioner to the 1st respondent seeking permission to change the electrical wiring. Permission is sought to install a new electric cable. The first respondent called upon the petitioners to get a letter of request from the 2nd respondent as the 2nd respondent was the original tenant. The first respondent called upon the petitioners to furnish permission from the Bombay Electricity supply and Transport (hereinafter 3 referred to as the BEST ) and electric diagram/wiring with detailed specifications. According to the case of the petitioners, they addressed a letter dated 18th July 2008 to the first respondent giving full particulars and complied with the requirements of the first respondent. A copy of the letter dated 18th July 2008 issued by the BEST specifying the terms and conditions on which an installation of new meter was sanctioned in the building comprising of the suit premises was also forwarded. It is alleged that the first respondent was holding keys of the common electric meter box in the passage which is adjacent to the lift in the building in which the suit premises are located. It is alleged that the meter box contains existing electric meters. It is alleged in the plaint that the electric wiring in the suit premises is 30 years old. A prayer in the suit is for declaration that the respondents are not entitled to obstruct the petitioners, their agents, servants and the BEST personnel from accessing the meter room in the common area of the building for the purpose of providing electric connection to the suit premises. The prayer for mandatory injunction was made directing the respondents to permit/allow the plaintiffs to obtain and provide electricity connection to the suit premises. In the application for interim relief, a prayer was incorporated claiming temporary injunction of mandatory nature directing the respondents to provide electricity connection to the suit premises in terms of the letter dated 18th July 2008 issued by the BEST . The second prayer was for temporary injunction restraining the respondents from obstructing the petitioners, their agents, servants and the BEST personnel from accessing meter room in the common area of the building comprising of the suit premises for the purpose of obtaining electricity connection to the suit premises. 4 4. The said application was contested by the respondents. The first respondent filed written statement to the suit in which a contention was raised that the petitioners have inducted M/s.Planet M. Retail Limited in the suit premises and the said third party is using the suit premises. The allegation is of illegal subletting. An application for interim relief was also contested on the ground that the petitioners are not in possession. 4 It must be stated here that from the order passed by the trial Court on the application for interim relief it appears that the first prayer in the interim application for mandatory injunction was not pressed and only the second prayer for prohibitory injunction was pressed. The trial Court rejected the application by holding that it is highly probable that the electricity supply of additional load is required for carrying on business of Planet-M. Retail Limited and the petitioners have failed to make out prima facie case that they are doing the business from the suit premises. The trial Court held that it cannot be said that the first respondent has without just and sufficient cause restrained the petitioners from having access to the meter box for getting the electricity supply of higher load. The Appellate Court relied upon the Commissioner s report and observed that the petitioners are interested in securing higher electricity load for the benefit of M/s.Planet-M. Retail Limited and not for themselves. 5 The submission of the learned counsel for the petitioners in support of the petition is that the suit for eviction against the petitioners is pending. He relied upon the agreement executed by and between the petitioners and M/s.Planet-M. Retail Limited and submitted that under the said agreement, the products of 5 the said company have been permitted to be marketed and sold by the petitioners who are carrying on business in the name and style of M/s.Issardas Tilusing. He submitted that there is already an electricity supply to the suit premises and the petitioners want electricity supply of higher load for carrying on business. He submitted that even the photographs which are relied upon by the first respondent show that the name of M/s.Issardas Tilusing appears on the name board. He submitted that unless there is a finding of the Competent Court regarding the unlawful subletting and so long as the petitioners are not evicted, the respondents cannot prevent the petitioners from obtaining supply of higher load. He stated that the petitioners are ready and willing to give an undertaking that the petitioners will not claim any equity in any of the pending suits if they are permitted to apply and obtain electricity connection of higher load. 6 The learned counsel for the first respondent submitted that this is not a case where essential supply is withheld by the landlord. He submitted that even according to the case of the petitioners, the supply of electricity is neither cut off or nor withheld and the petitioners are admittedly enjoying the supply of electricity. He submitted that the first respondent has not committed any breach of the provisions of section 29 of the Maharashtra Rent Control Act,1999. He submitted that there is a prima facie finding recorded that the petitioners have parted with possession in favour of M/s.Planet-M. Retail Limited and it is the said company which is carrying on business in the suit premises and there is a Commissioner s report which establishes the said fact. He pointed out that the agreement relied upon by the petitioners is not produced before the Courts 6 below. Therefore, it cannot be relied upon. The learned counsel submitted that there is no question of granting any injunction as there is no breach committed by the landlord of the obligations contained in section 29 of the said Act of 1999. He submitted that the Court gets jurisdiction to pass such an order only if it is established that the landlord has cut off or withheld the electricity supply which admittedly is not a case here. He submitted that no interference is called for with the concurrent orders passed by the Courts below. He invited my attention to the other pending suits. He submitted that contrary to the assurance given to the Court, the petitioners have inducted a third party and therefore, the petitioners are not entitled to claim any equitable relief. 7 I have given careful consideration to the submissions. It is not in dispute that there is a declaratory decree operating in favour of the petitioners declaring that they are the lawful sub-tenants in respect of the suit premises. There is already an electricity supply available to the suit premises. The letter dated 18th July 2008 issued by the BEST records that the petitioners had applied for electricity supply of additional load of 11.88 kilo watt. In the said letter various terms and conditions were incorporated by the BEST . 8 The main contention of the first respondent is that as a third party was placed in possession of the suit premises, the first respondent is entitled to prevent the petitioners from obtaining electricity supply of higher load. It is true that this is not a case where electricity supply to the suit premises is cut off or is withheld by the first respondent. This is a case where 7 the petitioner who is held to be lawful sub-tenant wants additional supply of additional load. The petitioners who are held to be lawful sub-tenants are entitled to benefit of enjoying electricity supply of requisite load to the suit premises so long as they are not evicted from the suit premises in accordance with law. 9 The case of the petitioners is that under an agreement executed in their favour in July 2008, by M/s.Planet M. Retail Limited, they are selling the products listed in statement (B) annexed to the said agreement of the said company in the suit premises. The said agreement has not been produced before the Courts below. Hence the same cannot be considered. The cause title of the declaratory suit filed by the predecessor of the petitioners shows that the their predecessor was carrying on business in the suit premises under the name and style of M/s. Issardas Tilusing as a proprietor thereof. Additional affidavit dated 9th October 2009 has been placed on record by the petitioners to which declaration of M/s.Planet M. Retail Limited has been annexed in which it is reiterated that the petitioners are selling products of the said company and the said company is not at all in possession of the suit premises. Reliance has been placed on Commissioner s report which is on record of another suit filed by the first respondent being suit no.1300 of 2008.The Court Commissioner has recorded that when he entered the suit premises, he met one Mr.Austin Fernandes who was in charge of the business who introduced himself as Manager of M/s. Issardas Tilusing and he was unable to produce business card. There were certain persons found in uniform having logo of M/s.Planet M. Retail Limited. On the basis of the photographs taken by the Commissioner, he has recorded an opinion that Planet M. Retail Limited 8 is doing the business in the suit premises. Perusal of the said photographs shows that the name of Issardas Tilusing also appears on the name board of the shop The Commissioner s report forms part of said suit filed by the respondents. The affidavit dated 9th October 2009 of the 2nd petitioner records that the petitioners are selling the products of the said company in the suit premises. The declaration dated 7th October 2009 of the said company is placed on record along with the aforesaid affidavit. 10. As stated earlier, a suit for eviction against the petitioners is pending. There cannot be a dispute about the status of the petitioners as lawful sub-tenants of the 2nd respondent in respect of the suit premises. The petitioners cannot be prevented from beneficially enjoying the suit premises for carrying on business. Unless there is a decree for eviction against the petitioners, they have a right of beneficial enjoyment in respect of the suit premises. The additional load is necessary for the beneficial enjoyment in respect of the suit premises. The respondents cannot obstruct the said right. The petitioners have proved prima facie case. Whether the petitioners have parted with possession is a question which will have to be decided on evidence. 11. If the petitioners obtain additional load, the respondents will not be prejudiced in any manner. Not permitting the petitioners to obtain additional load will amount to preventing the petitioners from beneficially enjoying the possession of the suit premises which is in their possession as lawful sub-tenants. The first respondent may not have withheld the electricity supply to the suit premises but the first respondent has no authority to prevent the petitioners from obtaining the 9 additional supply or additional load of electricity if the rules governing grant of such load do not disentile the petitioners to such supply. Even if the petitioners obtain electricity of higher load ,the rights of the respondents will not be affected in any manner. Notwithstanding the availability of the additional supply, the petitioners can always be evicted in accordance with law as no equity will be created by obtaining additional load. 12. The suits filed by the respondents are pending. So long as no order is passed against the petitioners which has a result of dispossessing them, there is no right in the first respondent to prevent the petitioners from enjoying the benefit of additional power supply or additional load. 13 The Courts below proceeded on the footing that there is some material on record to show that the petitioners have inducted a third party in the suit premises. The said allegation is yet to be established in the suits filed by the respondents. Unless competent Court of law holds that the petitioners are disentitled to occupy the suit premises, the respondents cannot prevent the petitioners from obtaining additional load. Even if the said additional load is obtained by the petitioners, it is obvious that no equity will be created in their favour and in fact an undertaking dated 21st April 2010 by the second petitioner on behalf of herself and as the constituted attorney of first petitioner has been tendered on record in which it is stated that no equity will be claimed in the pending suits. Therefore, there was no reason to deny relief of temporary injunction claimed by the petitioners in terms of prayer clause (b) of their application. It is obvious that if in the 10 pending suits it is established that the petitioners have parted with possession contrary to the assurance given to the Court, the respondents can always apply under Rule 4 of Order XXXIX of the said Code for vacating the order of injunction. It is obvious that even if the temporary injunction is granted, the first respondent will not be prevented from taking appropriate proceedings in the pending suits for obtaining order of dispossession of the petitioners. 14 In the circumstances, the petitioners were entitled to injunction in terms of prayer clause (b). Reliance has been placed on letter dated 18th July 2008 issued by the concerned officer of BEST . It is obvious that notwithstanding grant of injunction, the petitioners will have to comply with the terms and conditions stipulated by the BEST .The grant of relief shall not be interpreted by BEST to mean that Court has waived all the requirements which are required to be complied with by the petitioners. 15 Hence, I pass the following order : i) Undertaking of the 2nd petitioner dated 21st April 2010 is taken on record and marked `X for identification. Statements made in the said undertaking are accepted. ii)Subject to what is observed in the body of the Judgment, impugned orders are quashed and set aside. Application for interim relief made by the petitioners is allowed in terms of prayer clause (b) which reads as follows : (b)Pending hearing and final disposal of the suit this Hon ble Court may be pleased to pass 11 an order and injunction restraining the Defendants, their agents and servants, in any manner, obstructing the Plaintiffs, their agents and servants including the BEST Personnel from accessing the meter room in the common area of the building comprising of the suit premises for the purposes of obtaining electricity connection to the Application premises, namely, Shop no.2, admeasuring 1500 sq.feet or thereabout, Navsari Building, 240, Dr.D.N.Road, Mumbai 400001; iii) It is obvious that this order will not create any equity in favour of the petitioners and this order is subject to orders which may be passed in the suits filed by the respondents which are pending. iv) It is made clear that no adjudication has been made by this Court on the contention of the first respondent that the petitioners have parted with possession of the suit premises in favour of a third party. v) Writ Petition is partly allowed in above terms with no order as to costs. A Prayer is made for grant of stay of operation of this order. The said prayer is opposed by the learned counsel for the petitioners. The application made by the petitioners has been dismissed by both the courts below. Hence, operation of this order will remain stayed till 9th July 2010. JUDGE