IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 6.3.2009. S.B. CIVIL WRIT PETITION NO.2471/2009 Braj Bhan Vs. Deepak Tomar & Anr. HON'BLE MR. JUSTICE DALIP SINGH Shri G.C. Garg } Shri Alok Garg and } Shri Abhishek Jain }, for the petitioner. Heard learned counsel for the petitioner. In this writ petition the petitioner has challenged the order passed by the learned trial court dated 7.2.2009 by which the application filed by the petitioner for temporary injunction was dismissed and also the order dated 16.2.2009 by which the appeal preferred by the plaintiff petitioner against the order of the learned trial court dated 7.2.2009 has been dismissed. The plaintiff who is the tenant of the defendant in a commercial premises filed a suit for permanent injunction for restraining the landlord from raising constructions on the first floor of the commercial premises in the tenancy of the plaintiff petitioner. The two courts below have held that the roof on the first floor where the defendant landlord seeks to raise the construction does not form part of the tenanted premises and accordingly the tenant petitioner has no right to restrain the defendant landlord from raising construction over the first floor. The petitioner plaintiff has reiterated the same submission which was made before the learned court below and in support of his contention relied upon the judgment of the Madhya Pradesh High Court in the case of Smt. (Dr.) Gulsan Vs. Smt. Sharda Devi reported in 1987 Vol. 1 RCR page 25 as well as the judgment of the P&H High Court in the case of Bhal Singh Malik Vs. Dr. Nazar Singh reported in 1976 RCR page 145 and of the Delhi High Court in the case of Rawal Singh Vs. Kwality Stores reported in AIR 1986 Delhi 236 where the building having been leased to the tenant it was held that the roof was in the possession of the tenant and in his tenancy and on that basis the plaintiff tenant would have a right to use the roof and prevent the landlord from raising the construction over the same. I have considered the submissions of the learned counsel for the petitioner made at the bar as well as having gone through the judgments cited I am unable to pursue myself to agree with the submissions of the learned counsel for the petitioner. More particularly in view of the decision of this court in the case of Chhitarmal Vs. Motilal reported in 1974 RLW page 456 wherein this court while dealing with the case of commercial premises more particularly a shop has given a specific meaning to the word “shop” and has held that the roof of the shop does not form part of the “shop”. This court count in para 6 of the judgment has held as follows : “6. In the present case, the property in dispute consists of an open roof and a stair-case leading to the roof. This open roof is a cover to the shops located in the m ain bazar of Alwar known as Kedalganj market. The roof being open, it is, as such, neither a room nor an apartment nor a building. It is argued that a roof of the shop being an indivisible part of the shop, it must be deemed to be a shop. The argument, in my opinion, is wholly devoid of any force. Ordinarily, a shop consists of four walls with a door or doors, floor and roof. All these are indivisible parts of a shop. Can any one of these indivisible parts of the shop be called indivisible a shop, for example, can a single wall of the shop be termed as shop? The reply must be in the negative. The structural appearance of the property in dispute which is an open roof is not that of a shop. Again, it is an admitted position that the premises in dispute, namely, the roof and the stair-case were never used for sale of commodities. The only use to which the said property has been put to so far was to keep empty gunny bags or to keep goods for drying purposes. DW 1 Chhitarmal says that he would construct a shop on the disputed property for business purposes. Similarly, DW 2 Kailashchand says that the suit property was purchased with a view to construct a shop over it for business purposes. It is thus abundantly clear that the suit property as it stands today is not a shop but after raising construction on it, it would converted into a shop.” From the meaning of the word “shop' or as in this case a commercial premises as held by this court in Chitar Mal's case (supra) the roof of the premises does not fall within definition of shop or the commercial premises and also can not form part of the tenanted premises. As was held by this court that even if the roof of the shop was used some time for keeping empty bags or other goods for storage would not bring the roof of the premises within the purview of the “shop”. In the facts and circumstances since this court has already defined shop and held that the roof does not form part of the shop I do not find any error in the judgment of the two courts below so as to call for interfere in the writ jurisdiction. Apart from the above there is also the consideration of balance of convenience and irreparable loss. The landlord can not in the facts of the present case be injuncted and prevented from utilising the premises which he owns and which he wants to put to good use. In some of the judgments relied upon more particularly in the Madhya Pradesh case of Smt. Gulsan Vs. Sharda Devi's case the High Court allowed the injunction application holding that by permitting the landlord to utilise the premises of the roof of the premises and raising the construction over the same would prejudicially affect the interest of the plaintiff tenant and tenant would suffer irreparable loss. I am unable to pursuade myself with the aforesaid reasoning in the said judgment as was sought to be contended by the learned counsel for the petitioner that if another premises more particularly a commercial premises is allowed to be constructed on the first floor or the roof of the shop the plaintiff would suffer irreparable loss by allowing the rival businessmen to come and start business on the same premises and thus the business of the petitioner would suffer. The plea in my opinion has only been raised to be rejected. It make no difference in my opinion whether the premises on the first floor is constructed and let out or an adjoining premises is subsequently let out by the land lord to another tenant in a given case where similar business as is being carried out by the tenant on the ground floor or the adjoining shop. In the facts and circumstances therefore since this court has already considered the matter with regard to rights of tenant over a shop and held that the roof of the shops does not form part of the shop as held in Chittar Mal's case (supra). The petitioner has no prima facie case. I find no ground to interfere with the orders of the two courts below. This writ petition is accordingly dismissed. (DALIP SINGH),J. Ramchandrkhatri,PS