AHAMMED KANNU Vs. MOHAMMED KUNJU
HIGH COURT OF KERALA
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(1.) The glass shutters in question though removable - so for that matter are doors and windows and roofing tiles - are fixtures forming part of the building let by the respondent plaintiff to the appellant defendant. They were admittedly in existence when the defendant took the building on rent under Ext. P1 dated 30-8-1960, and whether they were put up by the defendant at his expense during the currency of the prior lease in his favour under Ext. D7 dated 22-5-1951 as found by the Trial Court, or by the plaintiff as found by the lower appellate court, in the absence of any reservation with regard to them in Ext. P1, they must be regarded as part of the building taken on lease by the defendant from the plaintiff under that deed. Therefore, the defendant can have no proprietary interest in the shutters - even if he had any, at any time, that determined with the surrender of the old lease on obtaining the new, and must have been a matter of adjustment when the new lease was taken - and their removal even if it be, as the defendant now chooses to think, for the more convenient enjoyment of the building for the particular use to which the defendant now wants to put it, would be an act of waste which the lower appellate" Court has rightly restrained by an injunction.
(2.) Ext. P1 prohibits the defendant from assigning or subletting without the written consent of the plaintiff. Therefore the lower appellate court was right in granting the plaintiff the injunction he sought restraining the defendant from doing so since there was reasonable apprehension that the defendant would induct other persons on the premises. Even if the covenant against transfer were to be regarded as a mere contract for a breach of which as held in John Nadjarian v. E. F. Trist (AIR 1945 Bombay 399) and in C. E. Treasurer v. S. F. B. Tyabji (AIR 1948 Bombay 349) the plaintiff would be entitled only to damages, it is obviously a contract which having regard to the considerations in Chap.2 of Part 2 of the Specific Relief Act should be specifically enforced; and the only way of specifically enforcing a restrictive covenant is to injunct its breach. Clause (f) of S.56 of that Act is therefore no impediment, and, if it be that, as held in the Bombay case, a transfer would give valid title to the transferee notwithstanding the restrictive covenant, that is all the more reason why an injunction should be granted. Kamala Ranjan v. Baijnath ( AIR 1951 SC 1 ) which has been cited on behalf of the defendant seems to have no bearing on the matter.
(3.) The defendant has a case (accepted by the Trial Court but rejected by the lower appellate court) that there was a third lease on 6-10-1962 in favour of himself and another. That other is not a party to this suit and since the defendant has no case that under this third lease he could remove the shutters or assign the lease, the truth or otherwise of this third lease is of no consequence.;
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