JUDGMENT
S.P. Goyal, J.
1. This judgment will dispose of three petitioners, Civil Revisions Nos. 790, 1259 and 1488 of 1984 as all of them involve an identical question of law. For the purpose of this judgment, the facts of Civil Revision No. 790 of 1984 have been noticed.
2. Shop-cum Flat No. 70, Grain Market, Sector 26, Chandigarh, is on lease with the petitioners. The respondent, owner of 1/2 share of the said shop, brought a suit for permanent injunction restraining the tenant from using any portion of the demised premises sfor running karyana business, sale of dailry products and crackers alleging that such a uuse was against the provisions of the capital of Punjab (Development/Regulation) Act, 1952 (hereinafter called the Punjab Act) and that because of the said misuse, Chandigarh Administration had issued a notice to show cause as to why the said premises be not resumed. Along with the suit, he also filed an application under O. 39, Rr. 1 and 2 read with S. 151, Civil P.C. for an ad interim injunction restraining the petitioners from carrying on karyana business and the sale of crackers and daity products. The tenant went in appeal against the order of the trial court but having failed has come up in this revision.
3. The main ground urged by the learned counsel for the petitioners was that in view of the provisions of S. 41, cls (g) and (i), Specific Relief Act, (for short, the Act) no ad interim injunction could be granted to prvent the contibuing breach in which the plaintiff had acquiesced or when be conduct of the plaintiff or his agent has been such as to disentitle him to the asssistance of the court. The basis for this argument was that the demised premises form the very inception of th etenancy were being used apart from the sale and purchase of grains, for karyana business and the sale of crackers and daity products with the knowledge and consent of the landlord who has thus acquiesced in the present use of the demised premises for more than a decade.
4. This matter came up before me sitting singly in Mrs. Ameryit Kaur Sandhu v, Malabar Cane Furniture Sector 22-B Chandigarh, (1979) 2 Rent CR 596 and 1 took the view that a temporary injunction restraining the defendant from using the demised premises for the purpose prrohibited by the provisions of the capital of Punjab (Development Regulation) Act, 1952 can be granted in a suit filed by the landlord in spite of the fact that the latter had consented to any such use of the premises by the tenant. A similar view was taken by M.R. Sharma, J. in Civil Revn. No. 1956 of 1981 (Sohan Lal v. Smt, Harbans Kaur) decided on September 15, 1981 and J.V. Gupta, J. in Tata Oil Mills company Ltd. v. Manmohan Verma, (1982) 1 Rent LR 413. However, in civil Revision No. 2869 of 1981, I referred the matter to a Division Bench for an authoritative pronouncement because the correctness of the above view was challenged relying on S. 41 (g),(i) of the Act. The Division Bench, in turn, referred the matter to a Full Bench but no decision was rendered on the said question as the Revision Petition was dismissed having become infructuous. Thereafter, the same question came up for consideration before a Division Bench in M. Holkar v. A.P. Srihan, 11984 Rev L 289: (AIR 1985 Punj& Har 24) and the Bench expressed its opinion on the provisions of the said S. 41 in the following termss:–
“There is no dispute with the proposition that the trial court in the matter of granting of injunction and the entertaining of the injunction said has to keep in forefront the provisions of S. 41 of the Act. So far as the bar of jurrisdiction at the therehold in view of the relevant provisions of S. 41 is concerned, that would arise only where on admitted facts the matter being such that it would attract the relevant provisions of S. 41 prohibiting the grant of injunction. where such is not the case and one party has raised the plea and the other has denied then the trial Court shall have to give a finding first and then would consider as to whether the relevant provisions of S. 41 prohibitionsn the grant of injunction is attracted or not. But then with the given finding the necessaity of grant of intenrim injunction would not arise as the case would stand finally decided. Hence we are of the view that provisions of S. 41 of the Act can be attracted at the thershold to cases where there is no dispute in regard to the facts which would attract the application of relevant provisions of S. 41 baring the jurisdiction of the court in regard to the granting of injunction and by implication prohibition the entertaining of injunction suit in question.”
It appears that the said decision was not brought to the notice of J.V. Gupta, J and thus revision was admitted to Full Bench in view of the earlier reference in Civil Revision No. 2869 of 1981.
5. The grant of temporary injunction during the pendency of the suit is governed primarily by the provisions of O. 390, Rr. 1 and 2, Civil P.C. Rule 1 provides that where in any suit it is proved by facts or otherwise that any property in dispute is in danger of being wasted, damaged or alienated or that the defendant has threatened or intends to remove or dispose of his property with a view to defraud the creditors or that the defendant has threatened to dispossess the plaintiff or otherwise cause injury to him in relation to the property indispute, the court may by order grant temporary injunctionrestraining such act. Rule 2 provides that in any suit for a pernament injunction the plaintiff may apply to the Court for a temporary injunction to restrain the defendant from committed a breach of contract or injury complained of arising our of a contract or relating to any property or right. A bare perusal of these two rules would show that no limitation as envisaged in the various clauses of S. 41 of the Act has been placed on the discretion of the court in the matter of grant of temporary injunction. However, it was snot disputed by the learned counsel for of the either side that if the grant of perpetual injunction as claimed in the suit is barred by the proviusions to grant even an ad interim injunction by way of temporary relief pending disposal of the suit. The short question which needs determination, therefore, is as to whether the provision sof Clause (g) or (I) of S. 41 of the Act would debar the plaintiff from claiming an ad interim injunction restraining the defendant from using the premises in the manner in which the plaintiff has acquiesced or because he or his agent has let out the demised premises of rht very same purpose for which it is being used.
6. The learnec counsel for th eres did dnot dispute that the plaintiff would not be entitled to an ad interim injunction restraining the defendant from committing a abreach in which he has acquiesced or from doing business on the premises for which it was let out or was being carried on from the very inception of the tenancy but urged that the said rule of estoppel contained in Cls. (g) and (I) of S. 41 of the Act would not be applicable if the act constituting the breach or the business being carried on the demised premises is prohibited by law. There can be no dipute with the proposition of law canvassed by the learned counsel. However, as would dbe evident from the discussion following that for invoking this principle certain findings have to be recorded first which would be possible only after trial and the mere allegation that the alleged acts constituting the breach are prohibited by law would not be sufficient to make the provisions of Cls (g) and (I) of S. 41 of the Act inapplicable.
7. The state Government in exercise of its powers under S. 22 of the Punjab Act has framed rules called the Chandigarh (Sale of Sites) Rules, 1952. R. 8 requires the transferr toexecute a deed of conveyance in the form prescribed in schedule “B” and under clause 9 of the said provisions forma, the Estate Officer prescribes the purpose for which alone the site or the building constructed thereon can be used R. 9 prohibits the transferr from using the site for the purpose other than that for which it has been sold to him. On the basis of the entry in Clause 9 and the provisions of the said Rules, it was contended that a prima facie case is estabalished which provides sufficient basis for the grant of an ad interim injunction. On the face of it this argument appears to be plausible but faials to stand the test of scrutiny for varirous reasons. Firstly, it is highly doubtful that the provisions of the said rules would be said to have been violated simply because along with the carrying on of a trade for which the site is meant, the tenant starts selling some other goods as well. Secondly, the purpose for which the site is sold is not prescribed by any statute or the rules framed thereunder. Entry under the concerned clause 9 is made by the Estate Officer in the conveyance deed which is more or less contractual in nature because the Estate Officer in the conveyance deed which is more or less contractual in naturue becuase the Estate Officer is not debarred from subsitituing a different kind of trade than the one already entered for valid reasons on request by the transferr. If the Estate Officer allows the transfereer or the tenant under him to use the site or the building for purposes other than specified in the conveyance deed for sufficiently large number of years it may be open to the tenant or the transferee, as the case may be to plead and prove that the former had impliedly consented to the change of th euse to other than the prescrribed one. It is a thing of common knowledge that the front portions of hundreds of buildings abuutting on the main roads in various sectors are being used for business or commercial purproses which is being done with the tacit consent of the Estate Officerr. Had that been not so, the Estate Officer would have to take action against all such transferees because it would not be the provisions of th elaw and the rules in such a manner that it results in a discriminatoroy treatment to the handreds of transferees similarly situated. We would, therefore, hold that the provisions of Cls. (g) and (I) of S. 41 of the Act would disentitle the plaintiff to claim ad interim injunction restraining the defendant from committing a breach in which he has acquiesced or from doing business on the premises for which it was let out or was being carried on from the very invception of the transaction. Accordinggly these revisions are allowed, the orders of the learned Additional District Judge set aside and those of the trial court restored. No costs.
8. Order accordingly.
