JUDGMENT
Jaspal Singh, J.
(1) The facts are eloquent and speak for themselves. In the posh locality of Saket in South Delhi there is a building bearing No. E-26. It is built on a plot of land measuring approximately 500 sq.yards. There is a basement, besides the ground floor comprising of three bed rooms with attached toilet, drawing-cum-dining room besides, of course,a lawn in front. It is owned by the present petitioner Mr. Krishan LalKohli, a non-resident Indian who has an attorney in India. That attorney is Marshal (retd.) M.L. Sethi. The building, at present, is in possession of atenant. It is claimed that on 19/04/1989 it was let out to Pepsi Foods ona rental of Rs. 7000.00 per month through Mr. Ranjit Salve who was earlier employed with M/s. Pepsi Foods and who claims that it is he who is the tenant in his personal capacity. It is, however, not disputed that it is he who is presently in occupation of the building. Much before 19/04/1989negotiations for letting out the premises had taken place with respondent No. 1, Mr. V.K.Khanna. Mr. Khanna in fact claims that those negotiations had resulted in the execution of an agreement of lease between him and the said Air Marshal M.L. Sethi. It is alleged that the said agreement was executed on 9/01/1989 though possession was to be delivered to him on 1/04/1980 from which date the tenancy was to commence. Mr.Khanna further alleges that rent was agreed to be Rs. 2000.00 per month. As would be obvious from what I have noticed above, the possession was never delivered to Mr. Khanna. Instead, the premises were let out on 19/04/1989 to another party. On 20/04/1989 Mr. Khanna filed a suit for specific performance basing his entire claim on the said agreement of lease.Along with that suit he moved an application under Order 39 Rules 1 and 2read with Section 151 of the Code of Civil Procedure. The application, it need hardly be mentioned, was contested. After hearing the parties, the learned Subordinate Judge disposed of that application by his order dated 9/09/1991 holding that the plaintiff (Mr. Khanna) had made out a prima facie case. The learned Court taking notice of the fact that the premises were in possession of defendant No. 2 i.e. Mr. Ranjit Salve extended its protective hands to him but restrained Mr. Kohli from delivering possession of the premises to any other person. Aggrieved by that order Mr.Kohli has filed this appeal.
(2) Mr. Ravinder Sethi, Senior Advocate submitted that no agreement of lease had ever been entered into with Mr. Khanna and that the alleged lease deed was actually a forged document. In support he drew mya ttention to the affidavit of Air Marshal M. L. Sethi wherein he has claimed that he had never executed the document and that it did not bear his signatures. Mr. Ravinder Sethi also drew my attention to the admitted signatures of Air Marshal Sethi on his affidavit and to the disputed signatures on the lease deed and submitted that even a cursory look by naked eye would go to show that the admitted and the disputed signatures did not tally with eachother. It was further argued that in any case the document being unregistered Mr. Khanna could not take benefit of the same and in support my attention was drawn to a judgment of the Supreme Court in M/s. Bajaj AutoLtd. v. Bihari Lal Kohli, and to a judgment of this Court in Smt. Abnash Rani Suri v. Smt. Santosh Chowdhry &. Anr .,1991RLR 159. It was also the contention of Mr. Ravinder Sethi that one could not possibly believe that a person would agree to letting out a premises on a monthly rent of Rs. 2,000.00 when house tax amounting to Rs. 26,000.00 was being paid and when on 19/04/1989 itself the premises bad actually been let out on a monthly rent of Rs. 7,000.00.
(3) On the other band my attention was drawn by Mr. Rajiv Behl,the learned Counsel for the respondents, to as many as 8 photographs filed before the learned Trial Court by Mr. Khanna. It was claimed that a Havan was performed in the premises itself immediately upon the execution of the agreement of lease and that the photographs in question were taken on that occasion. It was argued that had there been no agreement with Mr.Kohli there would have been no occasion for performing the Havan. My attention was also drawn to two letters- one dated 1/04/1989 and the other dated 10/04/1989 addressed by Mr. Khanna to Air Marshal M.L.Sethi. I was told that those letters were sent to him by registered post acknowledgement-due and were actually received by the Air Marshal. In support my attention was drawn to a letter from the Department of Post certifying that two registered letters were delivered to Air Marshal Sethi.Those letters do go to show that formalities with regard to the leasing of the property had been completed but possession had not been delivered. Coming to the so-called lease deed it was contended by the learned Counsel that it being an agreement of lease there was no need for its registration either under the Registration Act or under the Transfer of Property Act. In thealternative, it was submitted that it was open to his client to file a suit for specific performance under Chapter 2 of the Specific Relief Act on the basis of the said unregistered document. It was further contended that this would be no stage for making ocular observations and come to a conclusion with regard to the disputed signatures of the Air Marshal on the said deed oflease.
(4) I have purposely mentioned the rival contentions in detail. What do these contentions show? They show that Mr. Khanna has raised substantial questions which need investigation and a decision on merits. I am mentioning this fact as it was vehemently argued by Mr. Ravinder Sethi that no prima facie case had been made out and on that score alone the application ought to have been dismissed, prima fade case is after all, not to be confused with prima facie title which has, of course, to be established on evidence at the trial. What is meant by prima fade case ? Prima fade case is that which raises substantial question, of course bonafide, which needs investigation and ultimately a decision on merits and, as already noticed by me above, the respondent before me and the plaintiff in the suit, namelyMr. Khanna doss succeed in raising such questions. And, for the present,I find no reason to hold that the questions so raised have not been raised bonafide. But then, as we all know, more existence of a prima fade case would not suffice. The Court has further to be satisfied that non-interference by it would result in, what is called in legal parlance, an “irreparable injury to the party seeking relief and that there is no other remedy available to it except one to grant injunction. It is also the requirement of law that irreparable injury must be a material one. In other words it must be such which cannot be compensated by way of damages. The third requirement is also sc well known that it need not be repeated. It is what we call “the balance of covenience”. It must be there in favor of the party seekingrelief. I do feel that respondent No. 1 Mr. Sethi has satisfied these conditions and the learned Trial Court very rightly came to the conclusion that he needed to be protected. To that extent I am one with the learned TrialJudge. It is, however, the question of relief and its nature which has attracted my thought.
(5) As already noticed, the premises are not lying vacant. They are in possession of a tenant who I am informed, was inducted without notice of the alleged agreement of lease. His possession needs to be protected.To that extent also, I join my voice of agreement with the voice of the learned trial Judge.
(6) What if the premises are vacated? Further, what if the premises are sold away? These are the questions which have given me anxious moments and I do feel that interests of justice would be best served if in such an eventuality some protection is afforded to Mr. Khanna. In an effort to keep the balance I order that in case the premises are vacated and the same are sought to be let out to another tenant or are sought to be given onlicense, in that case the landlord as well as the would be tenant/licensee shall give an undertaking in Court that on the suit culminating in a decreeing favor of Mr. Khanna, they would be bound by the same and the possession of the premises would be delivered by them to him if so ordered by the Court in the decree. Without such an undertaking the premises would not be let out or given on license. In case during the pendency of the suitMr. Kohli decides to sell the property in that eventuality also before the sale an undertaking to the same effect would be given by the parties to thetransaction. I am making it clear that no transaction of such a sort would be entered into without the execution and acceptance of such an undertaking by the Court. With these observations the appeal is partly accepted but with no order as to costs.