JUDGMENT - H. SURESH, J.:---If a tenant claims a right of way, say, a private road, which leads to his premises, and contends that any obstruction by the landlord in the user thereof is an interference with his right to quite enjoyment of the demised premises, which Court will have jurisdiction to entertain and try such a suit? Secondly, to what extent he can enforce his right of way? These are the two questions which arise in this matter.

2. In the suit filed in the Bombay Civil Court bearing No. 8313 of 1987, the plaintiffs/tenants have pleaded that they are the tenants in respect of godowns being Block No. D and D/1 and an open space together admeasuring 7,600 square feet in Gupta Mills Estate, Reay Road, Bombay-400 010. The defendants/respondents are the landlords of the said premises. The plaintiffs say that the demised premises were let out to them by the defendants in September 1940 and that right from the inception of their tenancy they were entitled to the use of the road passing through the Estate for egress and ingress, for the beneficial enjoyment of the demised premises. The road passes through Estate and reaches Reay Road. They further say that the said road in the Estate is meant for the use of the plaintiffs and other tenants and occupants of the Estate. They further say that they have every right to the use of the said road in the Estate, and to continue to use it, without any interference, disturbance or obstruction whatsoever from any one and/or from the defendants. They say that they being the tenants of the defendants, are entitled to the covenant of quite enjoyment of the demised premises. They further plead that the defendants are in law bound not to do any act or acts to deprive the plaintiffs of the said covenant of quite enjoyment of the demised premises.

3. It is further stated that from the inception of their tenancy they (plaintiffs) have never experienced any interference or obstruction in the use of the said road from the defendants, their servants or agents or subordinates. However, six weeks before filing the suit the said plaintiffs noticed heavy articles being dumped on the said road in such a manner calculated to interfere with the plaintiffs' use of the said road and cause obstruction to the vehicular traffic of the plaintiffs and their visitors and customers. The plaintiffs protested, but, the defendants would not heed to such a protest. It is submitted that there is an obligation on the defendants not to interfere or obstruct in the user of the said road so as to deprive the plaintiffs of their beneficial enjoyment of the demised premises. They have further pleaded that the defendants have invaded or threatened to invade the plaintiffs' right to enjoy the said road.

4. On the basis of these pleadings, the plaintiffs have sought an order of permanent injunction restraining the defendants from dumping or stacking any heavy materials on the road shaded red in the plan (Ex. A to the plaint) so as to cause obstruction to the plaintiffs demised premises. They have also sought an order of interim injunction on the same terms.

5. After filing the suit, the plaintiff's took out a notice of motion bearing No. 6436 of 1987 for an interim relief pending the suit, in identical terms as the final relief in the suit. In this notice of motion, the defendants contended that the suit being a suit between the tenants and the landlords and the suit being a suit relating to terms of tenancy, the Bombay City Civil Court has no jurisdiction inasmuch as the suit would fall within the scope of section 28 of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act"). They also contended that there is no such right of way at all in favour of the plaintiffs. The learned Judge, who heard the notice of motion, negatived both these contentions. On the question of jurisdiction what was argued before the learned Judge was that the plaint on a proper analysis w

Click Here to Read the rest of this document