{"id":65403,"date":"1985-06-27T00:00:00","date_gmt":"1985-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/salauddin-vs-bommegowda-on-27-june-1985"},"modified":"2016-06-16T23:36:28","modified_gmt":"2016-06-16T18:06:28","slug":"salauddin-vs-bommegowda-on-27-june-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/salauddin-vs-bommegowda-on-27-june-1985","title":{"rendered":"Salauddin vs Bommegowda on 27 June, 1985"},"content":{"rendered":"<div class=\"docsource_main\">Karnataka High Court<\/div>\n<div class=\"doc_title\">Salauddin vs Bommegowda on 27 June, 1985<\/div>\n<div class=\"doc_author\">Author: Kulkarni<\/div>\n<div class=\"doc_bench\">Bench: Kulkarni<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Kulkarni, J.<\/p>\n<p>1.This is a defendant&#8217;s appeal against the Order dated 15-3-1985 passed by the VII Additional City Civil Judge, Bangalore, in O.S. No. 267 of 1985 making the temporary injunction absolute.\n<\/p>\n<p>2. The parties have been referred to with reference to their position in the Trial Court.\n<\/p>\n<p>3. The property in  question originally  belonged  to one Dhanalakshmi Ammal. She had leased out the building in question to one Mahadevan who  was  running the business of manufacturing vermicelli in   the   suit   premises.   The defendant purchased the running of vermicelli business from Mahadevan.    Thereafter,  a lease   deed was entered   into between the defendant and Dhanalakshmi Ammal as per the lease deed dated 19-11-1976.\n<\/p>\n<p>4. The present  plaintiff purchased    the  property  from Dhanalakshmi  Ammal  on   19-1-1984.    After   the plaintiff purchased the  property,  the  trouble  started  between  the parties.   According to the defendant, as the plaintiff started interfering with  his  possession, he filed OS. No. 3813 of 1984   for  permanent  injunction  restraining    the   plaintiff from interfering with his  possession  of the  building and obtained temporary  injunction  on 9-11-1984.   The plaintiff thereafter, tiled the present suit.\n<\/p>\n<p>5. It appears that the plaintiff started to put up construction on the top or terrace    of the  suit building which was only a ground floor.    According to  the plaintiff, as he had been threatened with eviction from the premises occupied by him as a tenant and as the defendant denied to deliver possession to him (the plaintiff),   he   started putting up the first floor on  the top or  terrace of the building and   the defendant started  interfering with his   putting   up of the<br \/>\nstory on the top   of the building leased to  him.   There-fore, the plaintiff filed O.S 267 of 1985 on 21st<br \/>\nJanuary 1985 for  a  permanent     injunction   restraining   the   defendant from interfering with his putting up first floor on the top of the building. He obtained a temporary injunction. Thereafter the defendent filed an  application  under Order 39 Rule 4 C.P.G. to vacate the order of interim injunction granted infavour of the plaintiff. The Court below on appreciation of the material placed before it and after hearing the advocates for both parties, made the temporary injunction granted in favour of the plaintiff absolute and dismissed the application filed by the defendant under Section 39 Rule 4 C.P.C Hence this appeal by the defendant.\n<\/p>\n<p>6. Sri Joshi, Learned Counsel appearing for the appellant\/ defendant contended that the word &#8216; building&#8217; defined in the Rent Control Act includes the roof of the premises. He drew my attention to Section 3 of the Karnataka Rent Control Act which reads thus :-\n<\/p>\n<p>(a)   &#8216;building&#8217; means any building or hut or  part  of a building  or hut other than a farm house,  let  or  to  be let  separately  for residential or non-residential purposes and includes-\n<\/p>\n<p>(i)   the garden, grounds and out-houses, if any appurtenant to such building hut or part of such   building  or   hut  and  or   to be let along with such building or hut or part  of building or hut ;\n<\/p>\n<p>(ii)   any furniture supplied  by the landlord  for the use in which building or hut or part of a building or hut ;\n<\/p>\n<p>(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house.\n<\/p>\n<p>He also relied on the Bombay Rent Act by Dalal. At page 86, it has been stated by the author Dalal as &#8211;\n<\/p>\n<p>&#8220;Separately means distinctly from the rest of the building. The expression &#8216;let separately &#8216; is applicable to a part of a building and not to the whole building.\n<\/p>\n<p>The premises should be demised in such a way that the tenant has the exclusive use, possession and enjoyment thereof. Where, therefore, in a chawl in Bombay, rooms are let as separate tenements and privies and washing places are used in common by the tenants, the rooms could be said to have been let separately and the privies, passages and washing places which are used in common cannot be said to have been let<br \/>\nseparately, but the tenants of the rooms are given leave and. licence to use them and hence common privies, washing places and passages, common bath room, lift, forecourt and yard would not be included within the meaning of the words &#8216;premists let separately.&#8221;\n<\/p>\n<p>The view of the Trial Court that the demised portion does not include the roofing, appears to have no substance, as there cannot be a building without a roof. Can anybody reside or do some business in a building without roof . There-fore, the view of the Trial Court that roof is not included in the definition  &#8216;building&#8217; appears to be prima facie wrong. The Court below has over-looked the distinction between roof and terrace. The terrace is the top portion of the roof.\n<\/p>\n<p>7. But the question is whether  the landlord who has the demised building, has or has not got a right to put up the first<br \/>\nstorey on the terrace of the building demised to the tenant.\n<\/p>\n<p>8. Section 108 of the Transfer of Property Act deals with the Rights and Liabilities<br \/>\nof lessor and lessee. Rights of the lessor are mentioned in Section   108(a) (b) and (c) :\n<\/p>\n<p>(a) .The lessor is bound  to disclose to the lessee any material defect in the property,  with reference  in  its intended  use,   of which the former is and the latter is not aware, and which the latter could not with ordinary care discover.\n<\/p>\n<p>(b) The lessor is bound, on the lessee&#8217;s request to put him in possession of the property.\n<\/p>\n<p>(c) The lessor shall  be  deemed to contract  with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding   on the  lessee, he may  hold the property during the time limited by the lease without interruption.\n<\/p>\n<p>9. Learned author Mulla  has  stated  in the Transfer of Property Act, Sixth Edition, at page 693  as follows :\n<\/p>\n<p> &#8220;Interference with the lessee&#8217;s use of the premises for the particular purpose for which they were taken is a breach. So, in a case already referred to, when the premises were let for drying timber, the lessor could not use the adjoining land so to block the access of air. But interference which does not make the premises less useful generally, but only less useful for some purpose, unknown to the lessor at the time of letting, is not a breach of the covenant. In Robinson &#8211; vs -Kilvert (1889)41 Ch; D 88 and Harmer -v.- Jumbil (Nigeria) Tin Areas Ltd. (1921) 1 Ch. 200 : (1920) All. E.R. Re. 113, the lessor let the upper part of the building<br \/>\n  for a paper warehouse and then installed a heating apparatus in the cellar. This did not interfere with the lessee&#8217;s comfort or make the house<br \/>\n  unfit for storing paper generally, but it did affect a particular class of delicate paper that the lessee stored. This was not a breach of the covenant, for the lawful enjoyment or the house as a paper warehouse was not interfered with, and if the lessee required special protection he should have bargain-ed for it<\/p>\n<p>10. It is undisputed that  the  defendant is  the tenant of the petition premises and is manufacturing vermicelli in the premises.    It is undisputed that he has been  manufacturing vermicelli inside the four walls of the demised building. The object of the lease is only to manufacture vermicelli.    Thus, putting up of the first floor   on   the  terrace of the demised building will   not   be  an   interference   with the lessee&#8217;s business or will not make the   demised  building unfit for manufacturing vermicelli.\n<\/p>\n<p>11. Learned Counsel Sri Joshi urged that drying process of vermicelli was a part of manufacturing vermicelli.    It  is a matter of  commonsense   that    nobody   would   eat   wet vermicelli and it will have to be dried.    But it is undisputed that there is open space between  the  front portion having Madras terrace and another building with  tiled roof behind it.    Vermicelli which is manufactured by the defendant can very well be dried  in  that open   space which  is  open to the sky.\n<\/p>\n<p>12. According to the defendant, the  portion  demised to him also includes tiled portion.    If that is so, he can  make use of that portion for drying the vermicelli.   According to defendant, he has been manufacturing vermicelli  by using maida weighing two quintals   per day.   It  is  not as if he is manufacturing vermicelli by truck loads or wagon loads.    If he has been manufacturing vermicelli  by using two quintals of maida per day, the open  space  in between the tiled roof building and Madras  Terraced portion would be more than sufficient.    Putting up of the 1st floor   on the terrace of the Madras terraced ground floor would not in any way interfere With the quiet enjoyment of his leasehold right.\n<\/p>\n<p>13. Sri Joshi referred me to Halsbury&#8217;s Laws of England, Fourth   Edition, Vol.  27, Landlord  and  Tenant Leasehold Enfranchisement  or Extension  at Paras 265  and  266, in support of his contention that right of re-entry has not been reserved by the landlord. Merely because the landlord has not reserved the right of reentry in the present case, it does not mean that he has no right to put up the first floor.   He may not have the right of re-entry  into   the  building   demised. But his right to put  up   first<br \/>\nstory on  the terrace of the building cannot be defeated only on the  ground that he has not reserved the right of reentry.\n<\/p>\n<p>14.In Kelly -v.- Bettershell  and Another1  it has been stated thus &#8211;\n<\/p>\n<p>(i) &#8220;The user of the lower part of the house was merely an interference with the plaintiff&#8217;s convenience, amenity or privacy and was not of such a serious nature as to frustrate the use of the premises for the purpose for which they were demised : and, therefore, the fact that the incorporation of the premises in a hotel did not amount to a derogation from the grant made to the plaintiff.\n<\/p>\n<p>(ii) in any event, the question whether particular circumstances amounted to a derogation from the grant as distinct from a mere interference of<br \/>\namenities was  a question of fact, and there was evidence on which the country Court Judge could decide in favour of the defendants.&#8221;\n<\/p>\n<p>15. In    Owen -v.- Gadd and  Others  it  has  been  held that the test   is  whether interference complained amounts to interference  with    the quiet enjoyment  of the building demised.   If interference does not affect the object of the lease for which  it is  taken,  then  it cannot  be said to be an interference with  the  quiet enjoyment  of the building. In the present case, the building has been taken on lease for manufacturing vermicelli and he is even now manufacturing vermicelli and drying them inside the building.    Therefore, the putting up of the first<br \/>\nstory on   the terrace of the\n<\/p>\n<p>1.    1949(2} All, E.R. 830\n<\/p>\n<p>2.    1956(2) All, E R. 28<br \/>\nbuilding will not in any way interfere with the defendant&#8217;s business of manufacturing vermicelli.\n<\/p>\n<p>16  It is admitted that the stair-case for the building in question is outside the building. Therefore, putting up of first<br \/>\nstory on the terrace of the building can be done without interference with the business of manufacturing vermicelli which is being done by the defendant even now.\n<\/p>\n<p>17. It is undisputed that the plaintiff has  practically put up walls of the first floor on the terrace of the roof and only thing that is required to complete the first floor, is the putting up of the roof over it.    When  the  construction   of the 1st floor by the plaintiff has reached such a stage, the balance of convenience also would be in favour of the plaintiff.    The plaintiff has already obtained requisite plan and the licence from the Corporation to put up the  first  floor.    According to plaintiff, he his borrowed a sum of Rs. 48,000\/- from the Society. He has collected materials for the  said  purpose  of constructing the 1st floor and  stored  them. Practically  the putting up of the walls on the terrace of the roof had  been completed.\n<\/p>\n<p>18. Learned Counsel Sri Joshi submitted that the defendant had filed O.S.  No. 3813  of 1984 for permanant injunction restraining  the defendant  (the  plaintiff in this  suit)  from interfering with  his  possession of the building in question and  temporary    injunction has been granted in that suit. According to  him,  the grant of injunction in  O.S. 3813 of 1984 barred the present suit.\n<\/p>\n<p>19.  The subject matter of the suit in O.S. 3813 of 1984 was only regarding interference with the possession of the building i.e., the ground floor. The subject matter of the suit in question is defendant&#8217;s interference with plaintiff putting up of 1ststory on the terrace of the roof. Therefore the grant of injunction in O S 3813 of 1984 does not come in the way of the present suit in O.S. 267 of 1985.\n<\/p>\n<p>20 . As already noticed above, the construction of first floor on the terrace of the roof of the demised building will not in any way interfere with the manufacturing process of the vermicelli by the defendant. Therefore, the defendant would not even be remotely put to any inconvenience by putting up of first<br \/>\nstory on the terrace of the roof There-fore under these circumstances, the order passed by the Court below making the injunction absolute needs no<br \/>\ninterference. Therefore the Appeal is dismissed. No costs in this Appeal.\n<\/p>\n<p> 21 . At this stage, Learned Counsel Sri Joshi for the defendant submitted that his client would take the matter to the Supreme Court and that the operation of this order be stayed for two months. Learned Counsel for the plaintiff submitted that there is no provision for an Appeal against the order passed by a Single Judge and thus the question of staying the operation of this order does not arise at all.\n<\/p>\n<p>22.  I find there is ample force in the contention raised by the Counsel for the plaintiff. Therefore, the request of the Learned Counsel for the defendant for stay of operation of this order is rejected.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Karnataka High Court Salauddin vs Bommegowda on 27 June, 1985 Author: Kulkarni Bench: Kulkarni JUDGMENT Kulkarni, J. 1.This is a defendant&#8217;s appeal against the Order dated 15-3-1985 passed by the VII Additional City Civil Judge, Bangalore, in O.S. No. 267 of 1985 making the temporary injunction absolute. 2. The parties have been referred to with [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-65403","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Salauddin vs Bommegowda on 27 June, 1985 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/salauddin-vs-bommegowda-on-27-june-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Salauddin vs Bommegowda on 27 June, 1985 - Free Judgements of Supreme Court &amp; 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