JUDGMENT
V.V. Vaze, J.
1. History’s most grandlose accomplishments can have the most banal of origins. Sagacity and foresight of many a captains is industry combined to put Bombay on the map of India as its industrial capital. The pioneers of Muljee Jetha Market, the hub of the whole-sale business in India can justifiably take pride in their contribution to the economic prosperity of Bombay. More than a century ago, i.e. on 20th July, 1871, the New Piece Goods Bazar Company Limited was incorporated under the Indian Companies Act, 1866, as a limited Company with an authorised capital of Rs. 7,20,000/- which was raised to one Crore of rupees after 102 years i.e. in 1968. The object for which the Company was established, were, inter alia, to acquire specified lands, buildings at Sheikh Memon Street, Khutterwady Lane, Ganeshwadi Lane, Fazendaree land to erect or construct new houses, warehouses, shops, offices and other buildings. The statement of objects puts it modestly that the aim of the promoters was “to establish a central bazar in the metropolis of Bombay”, little realising that bazar would burgeon into a central bazar for the whole of India. As per the objects of the Company, a number of shops and tenements were constructed and the allottees prospered with the increased volume of traffic through the Bombay harbour. The post war boom in the trade brought in its wake the practices of sub-letting and assigning of premises for a price and the Directors were quick to stall the same. On 5th November, 1940 a Resolution was moved by the Chairman Kersandas Soonderdas to depricate the practice of tenants’ sub-letting their shops on “padgis or Anamat accounts”. The Bombay High Court confirmed the amendments to the objects of the Company effect 5th November, 1940 to provide against the tenants “sub-letting or assigning the premises let to them and to set fines and premium on their sub-letting or assigning the same.”
2. One such shop belonging to the Company was shop No. 638, Dwarkesh Galli, Mulji Jetha Market, of which J. Narandas and Co., are concededly the tenants of the Company. One of the partners of J. Narandas and Co., is related to Rameshchandra of Rameshchandra Jamnadas and Company, a partnership firm and at instance of the original tenant Rameshchandra was allowed use and occupation of certain premises of the shop No. 638 during the normal business working hours for carrying on the wholesale business in textiles. Terene Traders were permitted a like use of the shop and though there is a dispute as to whether Rameshchandra was included by Terene Traders or by Narandas, it is undisputed that from 1974 till 1982 Rameshchandra Jamnadas and Company continued to use the same portion of the shop.
3. Unlike retail outlets which have necessarily to have a large showroom to cater to the needs of the customers, a sketch annexed to the plaint shows that the shop in question is a small one containing racks for stacking textile samples, in front of which are two otlas where the traders can sit to strike a deal with the whole-sale buyers— mostly upcountry. The inner portion of the shop housing the racks of the cloth samples can be closed by rolling shutter leaving the otlas unguarded.
4. Rameshchandra have been alleging that this otla on the Southern portion was in their possession while the one on the Northern portion was being used by Terene Traders.
5. It appears that Rameshchandra and Terene Traders carried on business as usual in this shop for a fairly long period of 8 years from 1974 to 1982. But an unfortunate event gave a set-back to his business of the former. On 4th June, 1982 some of the creditor of Rameshchandra in Suit No. 2968 of 1982 obtained an order of attachment of his property. Contretemps of business made a doleful Rameshchandra keep away from a prestigious market like Mulji Jetha Market for a considerable time. After a year, when Rameshchandra thought he had rehabilitated himself and wanted to resume his activities in the otla and racks of Shop No. 638 as before, Terene Traders obstructed his entry which dragged Rameshchandra to the City Civil at Bombay in Suit No. 4073 of 1983. Rameshchandra sought to take out the Notice of Motion No. 4388 of 1983 praying for an injunction against the Terene Traders and joined his licensor Narandas and Company as defendant No. 2. The Bombay City Civil Court having dismissed his Notice of Motion, Rameshchandra comes in appeal in his Court.
6. In support of his contention that he has a legal right to joint possession of Shop No. 638. Rameshchandra has placed reliance on an Agreement between defendant No. 2 Narandas and himself under which he was inducted into the suit premises. The plaintiff alleges that the first Agreement was entered into on 14-11-1974 which Agreement was renewed from time to time and the last of which was on 15th February, 1978. The Agreement recites that Rameshchandra were in the same whole-sale business of cotton textile goods as Narandas and with the assistance and help of Narandas are carrying on the business in the said shop. The facility extended to Rameshchandra was “a limited and permissive personal one”. “for sitting during certain hours (expect loft) of the said shop. The main tenant Narandas was to keep the keys of the shop and lock the inner portion where goods were placed on the racks. No demarcation of space was made and in general the plaintiff was allowed to user of undefined space on the outer part of the Southern side of the said shop for sitting to effect sales of its goods and the racks inside the shop for keeping samples and loose pieces of goods. The keys of two Godrej locks (the number of which appear in the agreement) which were to be put on the rolling shutters were to remain with defendant No. 2 who was to open the shutters in the morning at the usual business hours and closed and lock the same in the evening, the keys always remaining with defendant No. 2. Terene Traders who have admitted the partial user of the shop by Rameshchandra, claim that the user was at their instance and that as Rameshchandra was related to the principal tenant Narandas they thought it in the best business interest to accommodate the relative of the principal tenant in that shop.
7. Mr. H.A. Solkar, learned Counsel for the respondents, supporting the orders, says that defendant No. 1 being an astute businessman did not like to asks for a reduction in the premium to be paid to Narandas for inducting their relative Rameshchandra because the nature of the whole-sale business was such that he did not want a large space as is required in a show-room of a retail store. Regarding the mode of induction of the plaintiff, Mr. Solkar says that the induction was oral and effected with a view to oblige relation of the principal tenant Narandas and at defendant No.1 continued to remit agreed rent of Rs.12,000/- per year initially (which was raised to Rs.18000/- per year) by cheque. The arrangement continued uninterrupted for a long period till Narandas thought of not accepting the cheques as a result of which, Terene Traders had to file a suit in the Court of Small Causes at Bombay against Narandas and obtain an interim injunction.
8. Mr. Abhyankar, learned Counsel for the appellant, in reply, points out that there is a reference in the judgment of the trial Court to the fact that Terene Traders had executed certain documents in favour of Narandas though they disputed the contents thereof but those documents were executed without under taking the purport thereof.
9. It is of utmost importance that the fact that Terene Traders were in permissive possession of only Nothern side the outer part of the shop and the Southern side was in possession “of the other parties with whom Narandas are carrying on business” is reiterated in the notice dated 25th May, 1983 issued by Narandas to Terene Traders.
10. The learned Judge of the trial Court has found most of the points, like, the fact that the plaintiff were carrying on some business in the suit premises; that he does not believe in the story of the defendant No.1-Terene Traders; that they would put a the third person like the plaintiff to use a portion of the shop free of charge only on account of relationship; that he cannot persuade himself to believe that defendant No.1- Terene Traders carrying on business for several years in Mulji Jetha Market would sign any documents at intervals without understanding the purport thereof, in favour of Narandas but dismissed the Motion. The reasons for his dismissing the Motion appear from the penultimate portion of his order :
“On considering these submissions, I think that though the plaintiffs had been carrying on for sometime some business in the suit shop may be with help of defendant No. 2, till the attachment of their goods was levied in June 1982, the plaintiffs do not seem to be using the suit premises on the date on which the present suit was instituted.”
11. The learned trial Judge seems to be under impression that unless the plaintiffs are in khas possession of the immovable property, the possession of which they seek to protect the discretionary relief of injunction cannot be granted to them.
12. In the matter of grant of temporary injunction, as a thumb rule, it is stated that the plaintiff, in order to succeed in obtaining the temporary injunction, must show that he has a prima facie case and that the balance of convenience is in his favour for such a grant. The expression “prima facie case” has been explained by the House of Lords in an unanimous opinion through Lord Diplock in American Cyanamid v. Ethicon, (1975)1 All E.R. 504 at page 510 thus :
“The use of such expression as a ‘probability’, ‘a prima facie case’, or ‘a strong prima facie case’ in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The Court no doubt must be satisfied that the claim is not frivolous or vexations; in other words, that there is a serious question to be tried.”
Lord Diplock then went on to explain the criterian of “balance of convenience” at page 511:
“Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake, whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.”
13. Applying the above test, one can easily see that the plaintiff Rameshchandra, has, by establishing his user for a long period of 8 years from 1974 to 1982, proved that his claim is not frivolous or vexations but that there is a serious question to be tried. As regards the balance of convenience, if the defendants-Terene Traders, who, for the first time in 1982 obstructed the plaintiff- Rameshchandra from the user of the shop are permitted to continue the obstruction by refusing the injunction prayed for by the plaintiff, it would mean that we are enjoining the plaintiff from doing something which they have been doing all these eight years from 1974 to 1982. Consequently, we must take such measures as are calculated to preserve the status quo viz., the status quo as obtaining from 1974 to 1982 as the balance of convenience is clearly in favour of the plaintiff.
14. Viewed in the light of the above principles. I am afraid, the approach of the learned trial Judge is patently faulty. Something could have been said in support of this line of reasoning if it was a dwelling house which normally is in possession of the occupant for 24 hours a day. But, when we are considering the case of permissive use of a portion of a shop during the normal business hours and that too when the shop is to be opened and closed by the licensor defendant No. 2, in the morning and evening, the plaintiffs could not be expected to prove an exclusive possession of demarcated portion. All that they are claiming is joint possession along with defendant No.1. Terene Traders. The plaintiffs have been able to establish by the document of 1978 that they were inducted lawfully on payment of commission in the premises which possession, from 1974 to 1982, has not been questioned by defendant No.1. No doubt, when fortune had frowned on the plaintiffs, they did not think it proper to visit their shop. But this absentism would not, alone and by itself, amount to surrender the licence, more so, when defendant No. 2 the licensor supports their case. As observed earlier, I do not see much force in the case of defendant No. 1-Terene Traders that they had inducted the plaintiffs simply because the plaintiffs happened to be relations of their principal tenant defendant No. 2.
15. In these premises, the Appeal succeeds, and setting aside the order of the learned Judge of the City Civil Court, Bombay dated 5-9-1983, the Notice of Motion (No. 4388 of 1983) is made absolute in terms of prayer (a) subject to the modification that injunction will operate against the defendant No. 1 only when the plaintiff intend to use the red hatched portion in Exhibit ‘B’ annexed to the plaint during the normal business hours. Costs to abide the final results of the suit. In view of this order, Appeal No. 639 of 1983 does not survive.
16. The operation of this order stayed till 15th August, 1986 as per request of Mr. Solkar who agrees to intimate well in advance to the Advocates for the plaintiffs appellants the date when the matter will be heard in the Supreme Court.