1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5756 OF 2008 New Era Fabrics Limited. ... Petitioner. Orig.Appellants/Orig. Defendants. V/s. Home Care Retail Marts(P) Ltd. ... Respondents. Orig. Respdts./Orig. Plaintiffs. Mr. M.M. Vashi for the Petitioner. Mr. Anil V. Anturkar with Ms. Ranjana Parikh i/b. Ms. Sangeeta Lanjewar for the Respondents. CORAM : S.C. DHARMADHIKARI,J. DATED : 16th JULY 2009. P.C. :- Rule. Respondents waive service. By consent rule made returnable forthwith. Heard both sides. 2. This Writ Petition under Article 227 of the Constitution of India challenges the order passed by the Appellate Bench of the Court of Small Causes at Bombay in Appeal No.307 of 2008 in L.C.Suit No.124 of 2008. The Appeal was directed against the order of the Trial Court granting injunction in favour of the Respondents. By this Judgment and Order delivered on 14th July 2008, the Appellate Bench dismissed the Petitioner’s Appeal. The Petitioner is the Original Defendant in the Suit. The Respondents to this Writ Petition are the Original Plaintiffs. As a result of the order dated 14th July 2 2008, the Trial Court’s order dated 3rd may 2008 making the Injunction Notice absolute is confirmed. 3. Mr. Vashi, learned Counsel appearing for the Petitioners contended that the impugned order is ex-facie erroneous. It is vitiated by a serious error apparent on the face of the record. It can also be termed as perverse. In the submission of Mr. Vashi, the Respondent – Plaintiff filed a Suit in the Court of Small Causes at Bombay and the principal relief that they have claimed in the Suit is a declaration in their favour. The declaration is that they are in lawful use, occupation and possession of the Suit premises under a valid and subsisting leave and license agreement for a period up to 10th September 2017. Inviting my attention to the plaint which is lodged on 21st April 2008 and the prayers and more particularly with regard to the permanent injunction, Mr. Vashi submits that the Respondents have stated that the Suit is between a licensor and licensee relating to the possession of the licensed premises and therefore, the Small Causes Court has jurisdiction to entertain and try it. However, according to Mr. Vashi, if the plaint is perused as a whole and together with the prayer clause (a), it is apparent that the declaration can be sought and at the most granted with regard to the premises which are covered by the Agreement of Leave and License dated 27th August 2005. The premises are also described at Exhibit `C’ to the plaint and there is a plan annexed as Exhibit `D’. He submits that the dispute is with regard to the access to the licensed premises. The access to the licensed premises is something which must be seen in the 3 context of the plan describing and outlining the licensed premises. If the portion from which access is claimed is admittedly not covered by the Leave and License Agreement or the plan annexed thereto, then, firstly it is doubtful as to whether the Court of Small Causes will have jurisdiction to grant the relief sought as it is in the nature of claim for specific performance of an agreement and secondly, the Court cannot presume that the portion from which the access has been claimed has been all through-out understood by parties as a right of way or the only access to the premises in question. Once they fall outside the plan and the description of the immovable property which is subject matter of the leave and license, then, unless it was specifically alleged that the parties had permitted or agreed to have access to the premises from both roads i.e. the Tulsi Pipe Road and the Mogul Lane, then, no claim could have been entertained on the basis that entry from Mogul Lane is part and parcel of the Leave and License Agreement. 4. In any event, according to Mr. Vashi, the Leave and License Agreement has been undisputedly terminated and once it is so terminated and a declaration is sought with regard to its subsistence, then, the interim relief sought could not have been granted. There was no prima facie case nor the balance of convenience was in favour of the Respondent. He submits that the Trial Court and the Lower Appellate Court have completely over-looked this vital aspect of the matter. Their Judgment proceeds on certain assumptions and even at 4 this prima-facie stage if the admitted factual position is ignored, then, the orders cannot be sustained as they are perverse. Mr. Vashi was at pains to point out that a letter dated 5th September 2005 which has been relied upon has no where been referred to in the plaint. If the plaint is perused as a whole, there is no reference therein to this letter and it has been introduced in the proceedings for the first time by way of a rejoinder affidavit. That apart, if the plaint is perused together with the plan and other materials, then, merely relying upon this letter to grant an interim injunction is wholly unsustainable and erroneous exercise of jurisdiction. For all these reasons, he submits that the impugned order be set aside. Mr. Vashi relies upon the following decisions in support of his above contentions :- 1. 1989 Mh.L.J. (51) (Omprakash Tulsiram & Anr V/s. M/s. H.J. Leach & Co.). 2. Volume XLV Bombay Law Reporter (795) (Ambaram Popat Vankar V/s. Budhalal Mahasukram Shah. 3. 2008(2) Mh.L.J. (653) (ING VYASYA Bank Ltd. V/s. Modern India Ltd. & Anr. 5. On the other hand, Mr. Anturkar, learned Counsel appearing for the Respondents supports the impugned orders. His first contention is that the impugned orders are passed at an interlocutory stage. They are concurrent and based upon certain materials which are produced before the Court. He submits that if at this tentative and prima-facie stage an 5 arrangement is made so as not to prejudice either parties, then, this is not a fit case for interference in my equitable and limited jurisdiction under Article 227 of the Constitution of India. He submits that the parties will have full opportunity at the stage of trial and it is not as if any aspect of the controversy has been concluded by the impugned orders. Mr. Anturkar’s next contention is that as far as the issue of jurisdiction is concerned, it should not be permitted to be raised in the manner that is sought to be done. If the Petitioners were really anxious and desirous of putting the jurisdictional facts in issue, nothing prevented them in making an Application under Section 9-A of the C.P.C. That is not admittedly done and on the basis of certain oral arguments, this issue could not have been decided. His third contention is that the merits of the case themselves demand that the interim arrangement be made. The Petitioners do not dispute that the Respondents are in possession and have put up a Hyper Market/Mall. There is continuous movement of the customers, staff and goods. If the goods that are to be carried to the godown, which is at back portion of the premises through the Hyper Market, then it causes great inconvenience and embarrassment to the Respondent. Further, it is not as if the licensed premises did not contemplate any access from Mogul Lane. If that were not to be the case, then, the proposed entry from Mogul Lane would not have been demarcated on the plan. The very fact that the plan depicts the main entrance and proposed entrance from Mogul Lane and Mogul Lane is the main road or the road 6 facing the premises of the Respondents, then, they cannot be relegated to the arterial road. For all these reasons, the order under challenge need not be interfered with and the Writ Petition be dismissed. 6. For appropriately appreciating these contentions, firstly it would be necessary to bear in mind that this is a Writ Petition under Article 227 of the Constitution of India. The scope of interference and that too with the interlocutory orders of the Courts below is extremely limited. The intention is to supervise the working of the Courts in such a manner that they act within the limits of their authority. Article 227 of the Constitution of India confers a supervisory jurisdiction and unless the orders are demonstrated to be totally perverse or vitiated by serious error apparent on the face of record so also unless discretion is not exercised in a judicious manner, there is no scope for interference. 7. In the light of these principles if the present case is to be decided, then, a reference would be necessary, albeit for a limited purpose, to the plaint in the Suit. At the outset, I must clarify that the issue of jurisdiction is not being decided by me suffice it to note that there are serious contentions and therefore, the issue of jurisdiction would have to be gone into but for that purpose the trial Court will frame appropriate issues and give opportunity to parties to lead oral and documentary evidence. It is not necessary to comment upon the said aspect in the present proceedings either way as in 7 my opinion if the exercise of discretion is otherwise erroneous and vitiated, then, on that ground, the order under challenge can be set aside. 8. The plaint proceeds on the basis that the Respondents are carrying on business of running and operating Departmental Stores and Hyper Market Stores (convenience stores) inter-alia catering to the daily house-hold needs of retail customers under its trade mark “Magnet”. Further, plaint allegations proceed on the basis that the Petitioner is the owner of the property known as “New Era Fabrics Limited” together with all structures more particularly described in annexures `A’ to the plaint. 9. It is stated that in or about June 2005, the Petitioners were approached by the Respondents as the Respondents were desirous of establishing a stores as above. Pursuant to negotiations, parties drew up a leave and license agreement. 10. Para 5 of the plaint reads thus :- “5. The parties thereafter entered into a Leave and Licence Agreement dated 27th August, 2005 setting out the detailed terms and conditions on which the Defendant granted to the Plaintiff the licence in respect of the premises admeasuring 51000 sq. ft. built up area and 5339 sq.ft. Open area on the ground floor of the said building 8 known as New Era House situate on the said property at Mogul Lane, Matunga (West), Mumbai – 400 016. The said premises and open area are hereinafter referred to as “the suit premises” and are described in the Schedule annexed and marked as Exhibit “C” hereto. Hereto annexed and marked Exhibit “D” is the plan showing the suit premises as bounded in red.” 11. A bare perusal of the same would indicate that the suit premises are described in schedule annexed as annexure `C’ and a plan annexure `D’. In the plan annexure ‘D’ the suit premises are bounded in red colour. 12. Various clauses of the leave and license agreement have been relied upon. However, it would be of some relevance to note that the leave and license agreement does not state specifically the portion from which the access is permitted. Clause 5.2 and Clause 17.5 provide for free and un-obstructed access to licensed premises and every party thereof. Even in the first schedule to the leave and license agreement so also the second schedule there is no reference save and except to the plan. The plaint however proceeds on the basis that pursuant to the leave and license agreement, the Respondents were put in possession. In para 7 of the plaint reference is made to the letter dated 5th September 2005 which has been the basis on which the suit is filed viz. providing for renewal of the license to a further period. Copy 9 of that letter is at annexure ‘F’. In the further paragraphs viz. paras 8 and 9, steps taken pursuant to the leave and license agreement have been set out and in paras 10 and 11 of the plaint this is what is stated :- “10. On or about 15.1.2008, the Defendant suddenly closed the entry gate from Mogul Lane by saying that the Defendant was to carry out some minor repairs. The Plaintiff relied upon the representation made by the Defendant and agreed to the temporary closure of the entry of the Plaintiff’s staff and customers from the Mogul Lane gate. However, the Plaintiff later on found that the Defendant had not carried out any repair work. The Plaintiff’s Director Mr. Ashok Maheshwari therefore met Mr. R.K. Agarwal of the Defendant and made inquiry about the closure of the Plaintiff’s entry from Mogul Lane gate. During the said meeting, Mr. R.K. Agarwal insisted that the Plaintiff sign a letter drafted by the Defendants Advocate and informed the Plaintiff that unless and until the Plaintiff gave such a letter to the Defendant, the Defendant would obstruct the entry of the Plaintiff’s staff and customers from Mogul Lane. Some of the contents of the said letter are inter-alia reproduced herein “We have been provided main gate at (Tulsi Pipe Road) Senapati Bapat Marg which we are using as our main entrance for our goods and customers. 10 However, sometime due to rush we having difficulty with out main entrance. We understand that you have another entrance at Mogul Lane Side of your Mill. We therefore request you to temporarily allow us to use the entrance of Mogul Lane occasionally. We hereby agreed and understand that if you permit the use of your gate/entrance at Mogul Lane Side it will be purely on the basis of goodwill gesture. We agree that we have no right of whatsoever nature under the Lease and Licence Agreement dated 27th August, 2005 on the use of your existing entrance at Mogul Lane. We further undertake that no disturbance or nuisance of any sort will be caused to your office or the other occupants of the premises. Needless to state that lock and keys will be always with your security personnels.” The Plaintiff refused to address any such letter in favour of the Defendant as the same were contrary to the understanding and agreement arrived at between the Plaintiff and the Defendant viz. that the Plaintiff would have access from both Mogul Lane and Senapati Bapat Marg and which the Plaintiff, its staff, its customers and tradespeople were using from the commencement of the said license. The Plaintiff however agreed to address a letter having the contents which are reproduced herein “Both side of entry and exit Mogul Lane & Tulsi Pipe Road are important annexure of our agreement in running our 11 operation and business. As the proposed gates to be provided by you on the Mogul Lane are not in place till date we have been using the main gate of compound along with the small gate for our customer entry and the inward of goods with lots of compromise in Business & Operations. However, once the gates proposed by you for our independent entry are in place then we would stop using the main gate and the small gate except for in emergency with prior permission, you will have the keys for the existing gates. We presume you have applied for the permission of the same will soon be place also let us know if you require any assistance from our side for the same. We assure you of our best of co-operation with no hindrance to your office or other occupants of the premises”. The Plaintiff craves leave to refer to and rely upon the said draft letter dated 16.1.2008 prepared by the Defendant’s Advocate and also the said draft letter prepared by the Plaintiff when produced. 11. As an afterthought, in the subsequent correspondence, the Defendant falsely contended that the Defendant had never agreed for the Plaintiff’s entry from the Mogul Lane and that the proposed gates shown in the plan annexed and marked at Exhibit “D” hereto were the future development of the said property. The said 12 contention is totally contrary to the assurance given by the Defendant and terms and conditions of the said Agreement. One of the reasons that the Plaintiff has decided to take the suit premises for establishing the Hyper Market and paying a huge license fee therefor was the location of the suit premises it being situate on two important roads viz. Mogul lane and Senapati Bapat Marg, Mogul Lane was an important Lane so far as the Mahim area is concerned while Senapati Bapat Marg is an arterial road suitable for the Dadar area. The present entrance to the suit premises from Mogul Lane side is from the main entrance to the property. The Defendant had assured to give separate exclusive entrance to the suit premises by way of proposed gates as shown in the plan and that the Plaintiff its contractors, staff, customers, tradespeople (use the main entrance to the property from the Mogul Lane till such time as the proposed gates were constructed and that upon the new entrance being provided exclusively for the suit premises the Plaintiff should discontinue the use of the main entrance to the property from the Mogul Lane. The said stance of the Defendant was contrary to the Agreement between the Plaintiff and the Defendant. The Plaintiff craves leave to refer to and rely upon relevant correspondence in respect of construction of the proposed gates and entry of the Plaintiff from 13 the main gate from Mogul Lane when produced. The plan annexed to the Leave and License Agreement itself shows the entry from Mogul Lane and in fact the said premises are admittedly situate at Mogul Lane with an entrance therefrom and as also mentioned in the said Agreement and Bills, vouchers, licenses of the Plaintiff. The Plaintiff craves leave to refer to and rely upon the same when produced. Although the Plaintiff is thereafter using the Mogul Lane entrance, it is always under threat from the Defendant that the Defendant will physically obstruct the Plaintiff and its contractors, staff, customers, tradespeople from use of the entrance on the said Mogul Lane side.” 13. From a bare reading of these paragraphs, it is apparent that save and except the assurances allegedly given that the proposed gates would be constructed and the access therefrom provided, there is no reference in the plaint to any assurances in writing much less the letter dated 5th September 2005. Assuming that such a letter exists , yet the fact remains that the assertion in the plaint is that the access from Mogul Lane had been discontinued. There is reference to alleged discontinuation of the facility from 15th January 2008. The letter dated 5th September 2005, thus, is not the only document or letter relied upon. Assuming it is so, yet, the plaint averments themselves are contrary to the contents of this letter. Entry from Mugal Lane was not part of the 14 Leave and License Agreement. It was an alleged facility which was also discontinued. The plaint also makes a reference to the correspondence between parties and the case of the Petitioners that the leave and license agreement has been terminated. It is, in these circumstances, and very clearly alleging once again in para 14 of the plaint that there was a police complaint filed about the alleged obstruction caused by the Petitioners to the access from Mogul Lane and further that the Petitioners purported to terminate the license, that the Suit had to be filed. 14. It is in such a Suit that the Respondents applied for an interim injunction and in the interim injunction application, their prayer is that pending the hearing and final disposal of the Suit, the Petitioners, their servants, agents and officers be restrained by an order of injunction from obstructing or interfering with the Respondent’s use, occupation and enjoyment of the suit premises and from stopping, preventing and interfering with the occupation of the suit premises from the main gate Mogul Lane by the Petitioner and from curtailing, stopping or interfering with the amenities as provided in the Leave and License Agreement. The prayer proceeds on the basis that the usage is continuing and subsisting as on the date of the Suit. This is not the position emerging from the plaint averments and the correspondence. Thus, this crucial aspect has been brushed aside by the Courts below. 15 15. It is not in serious dispute that the Petitioners are not being obstructing or interfering with the Respondents use of the premises under leave and license agreement. There is no allegation that the amenities are also being not allowed to be utilised. The only grievance was with regard to the access from the alleged main gate that is Mogul Lane. It must be noticed that the Respondents have an access to the premises from the Tulsi Pipe Road known as Senapati Bapat Marg. In these circumstances, the Trial Court and Lower Appellate Court should have considered the controversy even at the interlocutory stage in the light of these pleadings and clear denials and assertions by the Petitioners in their affidavits. Their duty in law was to decide whether a prima facie case is made out by the Plaintiff, in whose favour the balance of convenience lies and whether the Plaintiff would suffer irreparable loss and injury. On all three Counts, the Respondents have failed. The alleged access is not part of the licence agreement. It was only proposal and may be for a brief period discussed and allowed but discontinued as per the Plaintiffs own case. Thus, no balance of convenience is in their favour. There is no irreparable loss as access from Tulsi Pipe Road is undisputedly permitted. The Trial Court has held that the access from Senapati Bapat Marg to the Suit premises is highly inconvenient. The Trial Court has noted the arguments of the Petitioners that the letter dated 5th September 2005 is a fabricated and is no where referred to in the plaint. Yet, relying upon the contents of that letter and the alleged inconvenience to the Respondents that the Trial 16 Court proceeded to grant the injunction. The entire order of the Trial Court proceeds upon the alleged inconvenience to the Respondents as in the view of the Trial Court a Hyper Market or Mall in the present case is being located in such a place that the access from Mogul Lane would be convenient and ideal. However, there must be some basis even for such a finding. When there is a serious dispute as to whether the Mogul Lane access to the premises forms part and parcel of the Leave and License Agreement or is covered by the same otherwise, then, on what basis the arguments of convenience could be noted and taken cognizance of is not clear to me at all. The question of hardship by way of huge investment is hardly relevant. The parties have placed before the Court below the pleadings and it is the duty of the Court to consider the matter even at the prima-facie stage on the basis of the pleadings and documents. It is not for the Court to then presume any state of affairs when there is no basis for the same. There must be a foundation laid for all this in the pleadings. 16. In the present case the right asserted is with regard to the premises under the leave and license agreement. Admittedly, the Respondents are relying on the agreement and asserting their case as a licensee of the premises. The position in law of the licensee being clear, it is in that light that the Court should have approached the matter. Unless there was a clear provision in the agreement or there was a case made out of access being provided from