Judgement Key Points

ASOK KUMAR GANGULY, J.

( 1 ) THIS appeal is from an order dated 14. 06. 2002, passed by the learned Single Judge on a contested hearing and whereby the learned Single Judge was pleased to reject the injunction order continuing in favour of the petitioners/plaintiffs, the appellants before us.

( 2 ) THE matter has been argued at length and all the papers before the learned single Judge were included in the stay petition and the same was treated as informal Paper Book. This Court, with the consent of parties, heard both the appeal and the application together.

( 3 ) THE facts which are material for this case are as follows: by a registered deed of lease dated 21. 01. 1998, the petitioner No. 1 demised in favour of the respondent No. 1 a portion of the premises being 11, Dr. U. N. Brahmachari Street, Kolkata comprising office space Nos. 6, 7 and 7a on the 6th and 7th floor, super-built area of 22,722 sq. ft. of the said premises for an unexpired term of 99 years with the agreement commencing from 01. 09. 1993 and expiring on 31. 08. 2092.

( 4 ) THE dispute in this case between the parties arose out of the following covenants in the Lease Deed. Those covenants are set out below:"clause 2. 5. 2. Not to carry on any obnoxious, injurious, noisy, offensive, illegal or immoral activity in the said Units. Clause 2. 5. 3. Not to cause any nuisance or annoyance to the co-lessees and/ or occupants of other portions of the building. Clause 2. 5. 4. Not to use or allow use of the said Units for purposes other than for quiet and decent office purposes and in particular not to use the same for any residential, hotel, nursing home, boarding house manufacturing or processing workshop etc. Clause 2. 5. 6. Not to do anything whereby the other, co-lessees are obstructed in or prevented from quiet enjoyment exclusively of their respective units and jointly of the common parts. "

( 5 ) OUT of those covenants particular emphasis has been given to the restrictive covenant in Clause 2. 5. 4.

( 6 ) THE petitioners further alleged that by a letter dated 01. 08. 2001, the respondent No. 1 informed the petitioner No. 1 that it was in the process of assigning its lease-hold interest in respect of the office space No. 7a on the 7th floor of the said premises in favour of the respondent No. 2, a deemed University, for its proposed Computer Training Institute. The said notice was given by the respondent No. 1 to the petitioner No. 1 in terms of Clause 2. 6. 1. of the said lease Deed dated 21. 01. 1998 (hereinafter referred to as the said 'lease Deed' ).

( 7 ) THE petitioners through their advocate's letter dated 19. 09. 2001 protested and pointed out that the proposed user of the premises will be in contravention of Clause 2. 5. 4 of the lease deed and called upon the respondent No. 1 to desist them from creating any assignment of their lease-hold interest in the said premises in favour of respondent No. 2 for establishing the Computer Training centre.

( 8 ) THE further case of the petitioners is that they came across an advertisement issued by respondent No. 2, in the newspaper and it appears from the said advertisement that the said respondent No. 2 was going to set up an Educational Centre on the 7th floor of the said premises for conducting its three-year Degree Course in Bachelor of Computer Application.

( 9 ) SEEING the said advertisement, the petitioners filed a suit being C. S. No. 471 of 2001 in this Court for restraining the respondent No. l from subletting unit 7a of the 7th floor of the said premises to the respondent No. 2 for setting up the Computer Training Centre. Initially, an order of injunction was issued by a learned Judge of this Court, but, on the returnable date, it was submitted on behalf of the respondents that the respondent No. 1 did not intend to sub-let a portion of the said premises in favour of the respondent no. 2 but, it was in the process assigning its lease-hold right for the remaining years of lease tenure in respect

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