G.m. Modi Hospital & Research Centre Medical Science v. Shankar Singh Bhandari & Others

K. Ramamoorthy, J.

1. The revision petitioner Modi Hospital is defendant in 15 suits filed by 15 different plaintiffs. The plaintiffs in all the 15 suits prayed for interim injunction restraining the defendant from interfering with the possession of what according to them quarters inside the Hospital Campus. The Trial Court declined to grant injunction. The plaintiffs in all the 15 suits filed appeals before the learned Appellate Court challenging the order of the Trial Court. The lower Appellate Court allowed the appeal and granted injunction pending the suits. (Hereinafter the plaintiffs will be referred as the plaintiffs and the Hospital shall be referred as the defendant).

The defendant had filed a single civil revision petition seeking the leave of this Court to file a single revision petition. In C.M. 3040/94 this Court has granted the leave and, therefore, a single revision petition is now considered against all the orders of injunction passed in 15 suits. The learned Counsel for the parties argued the matter with ability and skill and I was greatly assisted by their arguments. The submissions were forceful and pursuasive and I am free to confess that at the time of the hearing of the matter the pendulum was swinging. I had determined to reflect and circumspect before I reached my conclusion.

2. The defendant owns 15 acres plot and in that a hospital has been put up. A hospital has all modern facilities and it can cater to the needs of all section of the community and the hospital is well equipped. In the Campus the hospital has made some temporary provisions for accommodating persons who work in the hospital in some capacity or the other.

3. The plaintiffs in the suits are the persons in occupation of the hutments and the defendant claims that the plaintiffs were servants of the contractor as engaged by it and they were not lessees. The plaintiffs put forth the case that they are all direct servants under the management of the hospital and they had never worked under any contractor, as alleged by the defendant. In other words, the plaintiffs peg their case on the jural relationship of landlord and tenants between the defendant and the plaintiffs. I do not want to render any specific finding on this question at this stage but all the same for the purpose of considering the question of grant of injunction, I have to come to a tentative decision on this point. I have also to consider whether the plaintiffs have made out a prima facie strong case on the merits for the grant of injunction and I have to weigh the balance of convenience. It is for this limited purpose I now propose to refer to the pleadings in this case. The learned Counsel for the respondent has done a great assistance to the Court by filing the plaint in one of the 15 cases and also a written statement and but for this I would not have been able to appreciate the contentions of the parties as per their pleadings. The plaint is filed as AnnexureR-1. It is stated in paragraph 1 That the plaintiff is a regular employee of the defendant hospital working as an electrician since 1.10.90 drawing a monthly salary of Rs. 1650. In paragraph 2 it is stated

That as per the understanding between the defendant employer and the plaintiff, in part consideration of the plaintiffs services, the defendant provided the plaintiff residential accommodation in the servant quarters attached to and within the hospital compound of the defendant which bear the address as given in the title of the suit, bearing no distinct individual numbers. In paragraph 3 it is stated That further, the defendant is also charging the plaintiff an amount of Rs. 25 for the occupancy of the said premises which they call the electricity charges but actually represent part consideration for the lease of the premises. The balance consideration is the requirement and need of the defendant to have employees like the plaintiff in close physical proximity of the defendant hospital. In paragraph 7 of the plaint the plaintiff refers to the wrongful termination of their services. No mention is made as to when the services were terminated. The fact that the plaintiffs are not working in the hospital is admitted by the plaintiffs and the hardship i.e. adumbrated in the plaint in paragraph 9 is as follows:

That the plaintiff and his familys movements in and out of the hospital has thus been severely restricted in an illegal fashion. The plaintiff has to leave early in the morning if he has some work outside and he is allowed to come in the hospital premises only after 6.30 p.m. in the evening. The family of the plaintiff, as already said, is totally confined in their quarters by the security staff of the defendant. If they have to leave for some outside work they are required, now from 14.12.1993, to get gate pass issued which requirement was not there earlier; the studying children of the workers are also harassed in the same way. All these are the illegal tactics of the defendant to harass and trouble the plaintiff and other workers so that they vacate the premises.

4. In the plaint they refer to the dispute that they have raised and the matter having been referred for adjudication to the Industrial Tribunal. On these pleadings, the relief claimed is that defendant should be restrained from throwing out, evicting or dispossessing the plaintiffs without the due process of law.

5. In the written statement filed by the defendant, the defendant disputed all the facts mentioned in the plaint and the defendant pleads that the defendant used to engage contractors and the plaintiffs were engaged by those contractors. The specific case of the defendant is that there are no servant quarters and whatsoever construction that is in occupation of the plaintiffs are a part of temporary project hutments, which were constructed by the building contractors before starting the construction work of the hospital for the purposes of storing the building material and providing night shelter to the chowkidar etc. These hutments are in very shabby conditions and are required to be demolished. According to the defendant, the contractor brought certain persons and requested the management of the hospital to allow him to put his employees in the project hutments temporarily as a time gap arrangement till the time he or his employees made their own arrangements. About the collection of Rs. 25, it is alleged by the defendant that it is being charged for the use of electricity only and not as part consideration of the lease of the premises. The defendant has denied jural relationship and pleaded that there was no allotment of any servant quarters to the plaintiffs and the suit is not competent.

6. The main plank of the plaintiffs case is that they are lessees. They would say that the case of the defendant that they came to do some work in the hospital through contractor is not true because each of the plaintiffs have been working for a long time before the hospital employed the contractors. They would also further say that hospital used to collect some amount towards electricity charges for electricity consumed and each of them was paid a monthly salary of Rs. 1,650 or thereabout. The plaintiffs would also rely upon to certificate issued by doctors in the hospital about their work as personal peons. It appears that a few doctors have issued certificates for a few of the plaintiffs but those documents are not before this Court. The argument is that the collection of the electricity charges would go to show that the plaintiffs are lessees in respect of the hutments. The plaintiffs further contend by virtue of the plaintiffs being the direct employees of the hospital, they were inducted into possession of the hutments or quarters as they are called by the plaintiffs as tenants. According to the plaintiffs, their services were terminated illegally for which they have industrial dispute and a reference has also been made to the Industrial Tribunal in this behalf. I asked the learned Counsel for the plaintiffs whether they had filed any statement before the Conciliation Officer during the conciliation proceedings under the Industrial Disputes Act to show how they claim to be in possession of the quarters. The learned Counsel was very fair and replied that no such statements have been made part of the record. I also asked the learned Counsel for the plaintiffs with reference to what is stated in the plaint about their being lessees and whether they were supported by any documentary evidence. The learned counsel fairly said that matter has to be inferred and there are no documentary evidence. Therefore, factual position is that the plaintiffs have not been able to establish that they are lessees of the premises and they have acquired any right to be in lawful possession. One can infer from the facts that the hospital had permitted persons like the plaintiffs to be in possession when they were doing services for the hospital. In the absence of any concrete evidence to come to any prima facie conclusion the plaintiffs cannot seek injunction against hospital pending the suits. It was contended by the learned Counsel for the plaintiffs that the defendant came forward with a case that the plaintiffs were working under the contractor and what is stated is that the plaintiffs were working under contractors called Jaibir Singh whereas name given in the written statement is a different one. Therefore, there are contradictions in the case of the defendant and, therefore,, the plaintiffs case should be accepted.

7. The learned Civil Judge, Delhi, dismissed the petition for injunction on the prima facie consideration that the plaintiffs have not established the jural relationship of lessee and the landlord between the plaintiff and the defendant, that there is no proof that the quarters were allotted in lieu of services rendered by the plaintiffs, that the collection of electricity charges by the hospital and the certificates issued by the doctors in a few cases stating that certain persons were personal peons do not go to prove the case of the plaintiffs. The learned Civil Judge had noted the submission on behalf of the defendant that the alleged servant quarters are not at all servant quarters but they are temporary project hutments put up by the contractors engaged by the defendant for putting up the hospital building.

8. On appeal, at the instance of the plaintiff, the learned Addl. Senior Civil Judge allowed the appeal setting aside the order of the Civil Judge and granted injunction pending the suits. The reasoning by the learned Addl. Senior Civil Judge is found in paragraphs 3 and 4 of his order. He stated in paragraph 3.

The respondent denies that the relationship of master and servant exists between it and the appellants. According to the respondent the appellants are the employees of an independent contractor Jaibir Singh who was engaged by the hospital to provide certain services. That the appellants call quarters are in fact project hutments that were constructed for storage of building material. At the request of Jaibir Singh, his employees were allowed to put up temporarily in the said hutments. It is alleged that the independent contractor and his employees have now become dishonest and they want to grab the land of the hospital.

9. The learned Addl. Senior Civil Judge was rest content with these observations. He has not thought it fit to come to any prima facie consideration on these averments.

10. In paragraph 4, the learned Addl. Senior Civil Judge observed:

It is admitted at both hands that some proceeding between the parties is pending in the Labour Department of Delhi Administration. Whether the appellants are employees of an independent contractor or direct employees of the respondent is a question that will be determined in the ordinary course. The pleadings however show that the appellants are working in the hospital and occupying accommodation in the hospital complex. That being the state of pleadings, it cannot be said that no triable issues are involved.

This shows that the learned Addl. Senior Civil Judge has dealt with the matter in a very casual manner and in a cavalier fashion. The case of the plaintiffs is that they are working outside and the learned Judge has assumed that the plaintiffs are working in the hospital. On the question of possession, which according to the learned Addl. Senior Civil Judge is conclusive or the purpose of the grant of injunction has said in paragraph 5.

Learned Counsel for the respondent points out that the so called quarters bear no distinctive numbers. He has drawn my attention to some photographs to press home the argument that there are no regular quarters in existence. What exist are project hutments which cannot be considered as residential accommodation. Residential accommodation, to my mind, has nexus to residence. To a poor man any roof that provides shelter is accommodation. Be that as it may, the appellants appear to be in occupation of some accommodation in the hospital complex and at this stage it is not still necessary to examine whether the said accommodation can be termed as a regular quarter or not. What matters at this stage is the factum of possession and it appears prima facie that the appellants entered possession with the permission of the respondent otherwise the respondent would not have provided the facility of electricity.

Therefore, the learned Addl. Senior Civil Judge has not proceeded further to consider what was the character possession of the plaintiffs in the premises to find out whether it could be protected by the issue of injunction.

10. The learned Addl. Senior Civil Judge on the question of balance of convenience has said in paragraph 6 that by withholding injunction the hardship will be severe to the plaintiffs than the loss which may possibly be caused to the defendant.

11. The learned Addl. Senior Civil Judge prefaced his order by collecting a paragraph from the judgment of the Supreme Court of India reported inKrishna Ram Mahale (dead) by his LRs. v. Mrs. Shobha Venkat Rao, AIR 1989 Supreme Court 2097. That paragraph reads as follows:

It is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.

The learned Addl. Civil Judge ought to have considered what is the dictum laid down by the Supreme Court and how far that dictum or the ratio of the case would be relevant for the purposes of considering the question that has arisen in this case.

12. The learned Addl. Senior Civil Judge has assumed that what they have stated in the plaint is correct and the injunction should be granted in their favour.

13. The learned Counsel for the revision petitioner submitted that the plaintiffs are persons engaged by the contractors of the hospital for the maintenance and other services; that the plaintiffs are not the employees for the defendant; that the hospital used to engage contractors who engage the persons like the plaintiffs; that Jaibir Singh is one of such contractors who did the work till October, 1993 and abandoned the contract and from 1st January, 1994 a new contractor is doing the maintenance; that the plaintiffs have no legal right to be in possession of the hutments and they are not entitled to order of injunction pending the suit. The learned Counsel submitted that the hospital is one of the well equipped hospitals in the city and the hospital is treating patients coming from all sections of the society and inside the campus the hospital cannot afford to have such persons as the plaintiffs who are a great stumbling block to the smooth functioning of the hospital. The plaintiffs are giving trouble to the working of the hospital and the defendant had to file a suit for injunction restraining the plaintiffs herein from causing any obstruction to the functioning of the hospital from doing any acts which will impead the working of the hospital. In that suit, interim injunction has been granted and it is still in force. At this stage, it is better to notice the submission of the learned Counsel for the plaintiffs in this behalf. Learned Counsel said that the plaintiffs have obeyed the orders of injunction and they do not propose to indulge in any activities as feared by the defendant.

14. The learned Counsel for the defendant submitted that the approach of the learned Addl. Sernior Civil Judge is erroneous and the principles laid down by this Court in the case reported in Chandu Lalv. Municipal Corporation of Delhi,AIR 1978 Delhi 174=15 (1979) DLT 168 (DB) have not been followed. The learned Counsel also refers to the decision in State of Jammu and Kashmir and Anotherv. Ghulam Rasool and Another, AIR 1979 Jammu & Kashmir 53 and M/s. Ocean Investment and Finance (P) Ltd. and Othersv. Union of India and Others, 40 (1990) DLT 225 [LQ/DelHC/1989/516] =AIR 1990 Delhi 154 following AIR 1978 Delhi 174.

15. The learned Counsel for the plaintiffs per contra contended that the order of the learned Addl. Senior Civil Judge is in accordance with law, that the plaintiffs were the employees of the hospital, they were put in possession of the servant quarters in lieu of the services rendered, that each of them is paid monthly salary @ Rs. 1,650 or thereabouts, that the defendant was collecting electricity charges from the plaintiffs, the services of the plaintiff were terminated by the hospital for which they have raised an industrial dispute and the dispute has been referred to Industrial Tribunal for adjudication. The learned Counsel further submitted that case of the defendant that the plaintiffs were employed by contractors cannot be true. As stated above, there are certain contradictions in the case of the defendant about the names of the contractors. I asked the Counsel for the defendant about the contradiction pointed out by the learned Counsel for the plaintiffs. The learned Counsel for the defendant clarified the position by stating that different plaintiffs were employed by different contractors and the written statement filed by the plaintiffs in the Civil Revision would show particular plaintiff in the case was employed by that contractor. Therefore, there is nothing inconsistent in the stand taken by the defendant in all the 15 cases. The learned Counsel for the plaintiffs further submitted that the plaintiffs were the lessees of the quarters and, therefore,, they cannot be dispossessed by the defendant without filing suits for possession. Learned Counsel submitted that the plaintiffs are poor people and if they are dispossessed they will be put irreparable loss and hardship and the balance of convenience is in favour of the plaintiffs. The learned Counsel also relied upon the certificates issued by the doctors to certain plaintiffs that they are personal peons of the Doctors. The learned counsel also relied on the Section 14(l)(i) of the Delhi Rent Control Act, 1958. That section reads as follows:

14. Protection of tenant against eviction(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment;

16. About this aspect, I have to deal with it and it would be done in the course of this judgment. The learned Counsel relied on the decision reported in AIR 1989 Supreme Court 2097 (supra) and also the decision in AIR 1986 Delhi 27.

17. Before I deal with the authorities refer to and relied on by the learned Counsel for the parties, I want to clear the factual matrix for a prima facie consideration for the grant of injunction. The fact that there are some hutments which are called servant quarters as alleged by the plaintiffs are inside the campus of the hospital cannot be disputed. The hospital was constructed only recently. Learned Counsel for plaintiffs himself said that there are more than 100 employees in the hospital. It is not the case of the plaintiffs that all the employees of the hospital substantial or the number of them are provided with quarters. The plaintiffs have not given any description of the quarters as alleged. As stated by the defendant, there are only project hutments which cannot be described by servant quarters. The learned Addl. Senior Civil Judge has not chosen to consider this aspect and he has merely said to a poor man any roof that provides shelter is accommodation. The learned Addl. Senior Civil Judge has assumed crucial facts to be determined in the case in favour of the plaintiffs. The fact that the plaintiffs are in possession is not disputed by the defendant. It is stated in the written statement that the contractor approached the defendant and had requested the hospital to accommodate them. Under the circumstances, one has to ask oneself a question what is the character of possession by the plaintiffs Will the adjudication of industrial dispute would make the plaintiffs as lessees, assuming that the plaintiffs are the employees of the defendant whether they can ask for injunction Defendant requires the place for the hospital. From a reading of the plaint and the written statement it is clear that the plaintiffs are only in possession of the premises through the contractors employed by the hospital and they are not even licencees in the term in which we understand the word licence as defined in Section 52 of the Easements Act. The possession of the plaintiffs cannot be characterised on the basis of any lease or licence. They could be in possession only so long as they are doing services. It is only for a temporary period. Whatever way the plaintiffs are inducted in possession of the hutments either through the contractors or by the hospital directly, they do not get any legal right to be in possession and they are at the pleasure of the hospital as we understand the term. The collection of electricity charges by the hospital and the certificats issued by the Doctors would not militate against the case of the defendant that the plaintiffs have no legal right to sustain their prayer for injunction. It is for the plaintiffs to conclusively establish in the trial that they had become lessees and they cannot be dispossessed by the hospital. The hospital would not lease out the hutments or quarters inside the campus to his employees because the very purpose of providing shelter to his employees to secure their presence for the services in the hospital to meet various situations to treat the patients in emergency would be defeated. Suppose A was the employee of the hospital he was put in possession of the quarter it cannot be characterised as lease or as licence. It is in the nature of the possession of a Government servant being allotted quarters during the time of his tenure as government servant by the Accommodation Controller under the various Rent Acts. After the cessation of the employment, the servant has to surrender possession and thereafter he does not get any right at all to be in possession of the quarters. Both the Addl. Senior Civil Judge and the learned Civil Judge had not adverted the crucial aspect of the matter. They have not bestowed sufficient thoughts on the facts vis-a-vis the principles of law applicable to the facts of this case. While considering the question of grant of injunction the Courts are bound to come to some tentative conclusion on facts and it cannot be said that they would be decided at the time of the trial of the case. If that is the position, in every case a person in possession of a property on the date of the suit would be entitled to injunction ex debito justitiae on the basis of his possession whatever the nature of the possession. Suppose A trespasses into Bs property and he maintains to be in possession for a few days and files a suit for injunction against B. Can injunction be granted on the strength of his possession leaving the question whether his possession is legal or not to be decided at the time of the trial of the case

18. A similar question was mooted before the Court of Appeal in England in Hemmings and Wifev. The Stoke Poges Golf Club Limited and Another, 1920 (1) KB 720. The Court of Appeal reversed the judgment of the trial Judge who granted injunction. To appreciate the question, it is necessary to notice the facts. The plaintiff Hemmings was in the employment of Stoke Poges Golf Club Ltd. A cottage was given to the plaintiff by virtue of his being the employee of the Golf Club. He was not a tenant. In May, 1918 he left the services and worked for a neighbouring farmer. Subsequently, a notice was served on him to deliver possession of the cottage. Thereupon, possession was taken from him. He filed then the suit to recover damages for forcible entry and for assault on the basis of the alleged infringement by the defendants of the statute 5 Ric. 2, stat. 1, c. 7, which enacts that a forcible entry is a punishable offence. The learned trial Judge granted the relief prayed for by the plaintiff and the Court of Appeal, as stated above, differed from the view taken by him. The Court of Appeal noticed the distinction between the case of a person who occupies a premises by virtue of employment is servant and the case of a person who occupies as a tenant. The plaintiff therein relied upon the case in Newtonv. Harland, 1 M & G page 644 for the proposition that nobody can take possession without any recourse to Court of law and any forcible entry is a crime in law. The learned Judge Justice Erskine said in that case. There are, it is true, many cases (some of which were cited at the argument) in which it has been held that no action for trespass quare clausum fregit will lie at the suit of a tenant against the landlord for a forcible entry after the expiration of the term. The earlier authorities upon this point are collected in Daltons Justice, c. 129, p. 431; and Turnerv. Meymott.(5) But then the reason for this is also given, namely, that the plaintiff, having no title to the possession as against his landlord, can have no right of action against him as a trespasser, for entering upon his own land, even with force; for entering upon his own land, even with force; for, although the law had been violated by the defendant, for which he was liable to be punished under a criminal prosecution, no right of the plaintiff had been infringed, and no injury had been sustained by him for which he could be entitled to compensation in damages; and by Fry J. in Beddall v.Maitland (6), where he says: He can recover no damages for the entry, because the possession was not legally his, and he can recover none for the force used in the entry, because, though the statute of Richard II, crates a crime, it gives not civil remedy. The Court of Appeal dealt with this case at length and found that this case was not accepted by any Court subsequently and that was no longer good law. After having considered this case, the learned Judges came to the conclusion In the present case the defendants were undoubtedly entitled to possession of the cottage. The plaintiffs had no right and did not pretend they had any right to remain there. Assuming, but without deciding, that the entry by the defendants was a forcible entry, the right to possession was in the defendants, and the acts which are alleged as giving the plaintiffs a right of action were done in defence of their right to possession. Bladesv. Higgs(2); and of the possession which they had acquired by the alleged forcible entry. I have no fear that the present decision will encourage lawlessness as was suggested for the respondent. A person who makes a forcible entry upon lands and tenements renders himself liable to punishment, and he exposes himself also to the civil liability to pay damages in the event of more force being used than was necessary to remove the occupant of the premises, or in the event of any want of proper care in the removal of his goods. If the view of the law expressed in Newtonv.Harland (3) is correct it must follow that the law confers upon the lawless trespasser a right of occupancy the length of which is determined only by the laws delay.

19. The plaintiffs in the instant case want exactly what the learned Judges of Court of Appeal said taking advantage of the less delay they want to be in possession of the hutments as along as they could. Already two years have rolled by since the institution of the suits in December, 1993 it is not known how long it will take in the Trial Court for trial. One can visualise the plight of the hospital in the presence of the plaintiffs in the campus. The defendant would not be able to make any improvement and it cannot also accommodate its servants. The learned Counsel for the plaintiffs himself said that the plaintiffs are complaining that their things are being stolen and the learned Counsel is putting the blame on the defendant. It does not require any argument to appreciate the position of the hospital. The plaintiffs themselves say they are working out and they have to leave early in the morning and they come back only in the evenings. This is a case of res ipsa loquitur on the facts of this case. It is not necessary for me to go into the question whether a landlord would have a right to forcible re-entry but in my view it cannot be doubted that persons like the plaintiffs who are neither tenants nor licensees would have such a right. The personal privilege which was given to them by the hospital assuming it to be so, would come to an end on the termination of their services either by the contractor or by the hospital. It is fundamental that if a person assesses that he can be dispossessed only through Court of law he must show that he has a right under law to remains in possession till his rights are determined by Court of law. In this case, there is no such thing prima facie shown by the plaintiffs then they do not have right any higher than the plaintiffs in the case before the Court of Appeal.

20. The learned Counsel for the defendant submitted that the learned Addl. Senior Civil Judge has failed to follow the principles laid down by Full Bench of this Court reported in AIR 1978 Delhi 174 (supra). The plaintiffs in that case, who asked for injunction, were in occupation of kiosks as per the contract given by the Municipal Corporation of Delhi. On the termination of the contract the M.C.D. wanted to take possession. The plaintiffs therein moved the Court for injunction. The lower Courts refused to grant injunction. The Full Bench of this Court considered the case decided by the Supreme Court reported in Lallu Yeshwant Singh (dead) by his legal representativev. Rao Jagdish Singh and Others, AIR 1968 SC 620 [LQ/SC/1967/355] and Munshi Ram and Othersv.Delhi Administration, AIR 1968 SC 702 [LQ/SC/1967/351] and distinguished them. Ultimately the Full Bench said Temporary injunction sought by the petitioners could be granted, if their case was covered by the three well-established principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in their favour, in that the refusal of the injunction would cause greater inconvenience to them, and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances, on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act. This decision has been followed in AIR 1990 Delhi 154 (supra) by Mr. Justice Nag under different circumstances. The same principle has been mentioned by the Madras High Court by Mr. Justice A. Alagiriswami as His Lordship then was in Mac. Laboratories (Private) Ltd.v. V.R. Nathan, Sole Proprietor of V.R. Nathan & Sons,1967 (1) MLJ 353. In England the principles have been succinctly laid down by the House of Lords in the case called American Cyanamid Co.v. Ethicon Ltd., (1975) 1 All. ER 504. This was followed by the Court of Appeal in Cayne and Another v. Global Natural Resources Plc, (1984)1 All. ER 225. The Court of Appeal said that shorn of all verbiage the question, the Court has asked itself is What can the Court do in its best endeavour to avoid injustice. In this case, I ask myself the same question. The Court of Appeal also said while referring to the balance of convenience that the balance of risk of doing injustice would better describe the process involved.

21. The learned Counsel for the plaintiffs vehemently contended that the judgments of the Supreme Court reported in AIR 1968 S.C. 620 (supra) and AIR 1989 S.C. 2097 (supra) and the decision in Smt. Shakuntlav. Hira Nand Sharma and Others,AIR 1986 Delhi 27 would conclude the matter in favour of the plaintiffs. The learned Counsel submitted that in the light of the principles laid down therein the defendant hospital cannot seek to possession of the plaintiffs and if at all the defendant should institute suits for recovery of possession of the hutments from the plaintiffs. In my view, there is absolutely no substance in the argument of the learned Counsel for the plaintiffs. If the facts of the case are perused it will be clear that the cases will not be of any help to the plaintiffs. Admittedly, in AIR 1989 S.C. 2097 (supra) the tenant was dispossessed by the landlord. At one stage, it is observed by the Supreme Court that the landlord went to the extent of saying that he was entitled to take possession without recourse of law. In this connection, the Supreme Court observed noting.

Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or by the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singhv.Rao Jagdish Singh, (1968) 2 SCSR 203 at pp. 208-210: (AIR 1968 620 at pp. 622-623). This Court in that judgment cited with approval the well-known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd.v.Naresh Narayan Roy, 51 Ind App 293 at p. 299: (AIR 1924 PC 144) where it has been observed (p.208)(of SCR): (at p.622 of AIR):

In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

22. Their Lordships of the Supreme Court were pleased to observe that a tenant was in a settled possession of the property. It is only in that context Their Lordships were pleased to mention that where a person is in a settled possession of the property even on the assumption that he has no right to remain in possession of the property cannot be dispossed by the owner of the property except by due course of law. It is only in that connection Their Lordships had occasion to refer A.I.R. 1968 S.C. 620 and AIR 1968 S.C. 702 (supra).

22. In AIR 1968 S.C. 702, the Supreme Court had decided the question that had arisen before Their Lordships on the facts of that case. In that case the property in question was under the management of manager, Evacuee Property. Prior to that the property was owned by Muslim landlords and after their migration to Pakistan the property came under the management of Evacuee Property. A few persons claiming to have purchased from the authorities under the in public auction sought to dispossess the tenant who was in possession for a long time and that was resisted and there was a quarrel which ended in criminal prosecution. The person claiming to be purchasers under public auction gave a complaint to the police which culminated in a criminal trial. That the persons claiming to be already in possession, who were accused, attacked them. In other words, the tenant group was the accused and a plea of private defence was taken. Two things were noticed by Their Lordships of the Supreme Court; first was the nature of possession of the tenant group, the second was whether there was lawful delivery of the property by the authorities under the to the complainants. The prosecution contended that the officers under the had taken possession and he delivered possession of the property to the purchaser in public auction. Therefore, the tenant group again claimed to be in possession. That was rejected by Their Lordships of the Supreme Court and it was held that the alleged delivery by the officer was nonest. In paragraph 14, Their Lordships were pleased to observe:

It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stay or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.

Therefore, Their Lordships were pleased to deal with different situation and this decision would not be of any assistance to the plaintiffs in this case. The decision in AIR 1968 S.C. 620 (supra) would not also be of any assistance to the plaintiffs. In this case also, the question that was mooted by the Supreme Court is entirely a different and the observation made by the Supreme Court cannot be taken out of its context be pressed into service. The decision reported in AIR 1986 Delhi 27. Decision rendered by Justice Kapur is also a case of tenant and, therefore,, cannot be of any assistance to the plaintiffs. The concept of settled possession is explained by Their Lordships of the Supreme Court in Puran Singh and Othersv.The State of Punjab, AIR 1975 SC 1674 [LQ/SC/1975/178] . The learned Counsel for the plaintiffs also relied upon Ram Rattan and Othersv. State of Uttar Pradesh, AIR 1977 SC 619 [LQ/SC/1976/460] which again does not help the plaintiffs.

24. It is my considered view that the reliance placed by the learned Counsel for the plaintiffs on Section 14(l)(i) is not at all relevant. That will apply to a case where there has been a clear jural relationship of landlord and tenant and that is not the case here. It is a basic principle of law that right to an interlocutory injunction is dependent on the enforcement of a substantial right and they can not be considered in isolation. The Supreme Court had occasion what is prima facie case in Dalpat Kumar and Another v.Prahlad Singh and Others, (1992)1 Supreme Court Cases 719 [LQ/SC/1972/38] at page 722 In our considered view, the High Court committed manifest error of law in jumping to the above conclusion to allow the appeal. This appeal is, accordingly, allowed. The order of the High Court is set aside and that of the Trial Court is confirmed. It is made clear that any observations made either by the Trial Court or the High Court or of this Court should be taken to be not relevant at the trial on merits. These are our only prima facie observations, subject to adduction of evidence and proof at the trial on merits in the suit. The parties are directed to bear their own costs. The word tenant is defined in Section 2(1) of the Delhi Rent Control Act, 1958 which is as under:

(1) tenant means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract,

(i) a sub-tenant;

(ii) any person continuing in possession after the termination of his tenancy; and

(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid persons:

(a) spouse,

(b) son or daughter, or, where there are both son and daughter, both of them,

(c) parents,

(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family upto the date of his death, but does not include,

(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be reopened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976;

(B) any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1882 has been granted.

The learned Counsel for the plaintiffs apparently would rely upon the definition in 2(1)(B) that even if he is a licensee the plaintiffs would come into the definition and could be called a tenant. There is no such case put forth in the plaint and they cannot be called licensees as defined in Section 52 of the Easements Act.

25. For all these reasons, the orders in all the 15 cases of the learned Addl. Senior Civil Judge, Delhi, are set aside and the orders of the learned Civil Judge are restored and the civil revision is allowed and injunction issued in all the 15 cases would stand vacated. No costs.