1982 PLP 1406 (CLC)

"(a) for declaration that the plaintiff is entitled to the beneficial use of the side wall of his shop according to agreement. (b) for permanent injunction on the defendants restraining them from using the said side wall against the interest of the plaintiff. (c) for order on the. defendants for removal of the said movable wooden‑stand and the show‑case. (d) for such damages as the honourable Court thinks proper. (e) any other relief that the honourable Court thinks proper. (f) for costs of the suit."

2. Briefly the facts are that the plaintiff/ respondent was the tenant of the landlady in respect of the shop No.

4. As the landlady wanted to reconstruct the building she entered into an agreement with the plaintiff/ respondent on 6th August, 1966, whereby she undertook to reconstruct the building and hand over the possession of the shop exactly on the same Place. After the construction was completed shop No. 5 facing Preedy Street was handed over to the plaintiff/respondent an January, 1967. On the side of the shop there was a passage in which an opening was proposed but it was not made. However, the landlady rented out the outer wall of the shop to the defendant/respondent for installing show‑cases. The plaintiff/respondent objected to the letting out of the outer wall of his shop and filed suit for the above reliefs which was dismissed by. the learned Civil Judge but it was decreed by the learned Appellate Court. Being aggrieved by the judgment the landlady as well as the defendant/ respondent filed separate revision applications. The main question for consideration in this case is whether the outer wall of the shop of the plaintiff/respondent could be let out or handed over to the defendant; respondent by the landlady. In this regard the agreement between the parties dated 6th August, 1961 has to be considered, first. Clauses (2), (4) and (7) of the agreement provide that the landlady shall construct the shop as before with frontage on the road i. e. Preedy Street and will hand it over to the plaintiff respondent. Clause 10 of the agreement which is more relevant to the present case is reproduced as follows :‑ "That the First Party expressly agrees and undertakes to restore the tenancy of the Second Party therein, in the newly constructed build ings, in respect of a shop measuring 9 feet 4 inches by 6 feet, facing Preedy Street, and the newly constructed shop having an opening on the adjoining passage in the plot, the passage having a width of 9 feet and joining Preedy Street and Bohra Bazar. The shop with two openings has been fully and clearly marked red in the plan annexed with this agreement and signed by both the parties."

3. According to this agreement and the plaint attached with it the landlady had agreed to provide a shop measuring 9'‑4''‑with frontage on the Preedy Street. The shop was also to have an opening in the 9 ft. wide adjoining passage in the plot joining Preedy Street and Bohra Bazar. This passage was therefore a link between the two commercial areas. The second opening was also contemplated which would have entitled the plaintiff/defendant to use this passage. The passage would have served a link between two commercial areas and would have enhanced the commercial utility and value of the shops that were constructed in that building having their openings in the passage.

4. The learned counsel for the landlords has contended that the shop 4's outer wall was 'et out about 6 months after the shop was handed over to the plaintiff/respondent but no objection was raised. However, this fact has been denied by the plaintiff/respondent and evidence has been led by him to that effect. The learned counsel for the landlady and defendant/ respondent have contended that the plaintiff/respondent was given a shop of a specified area which was restricted only inside the four walls and not beyond that. They have further contended that the right to use the outer wall did not vest in the plaintiff/respondent and therefore they cannot object to its being let out to any other party. A scrutiny of the agreement will make it clear that it was for letting out of a shop with frontage of the main road i.e. Preedy Street. There is nothing in the agreement to show that the landlady had agreed to allow the plaintiffs/respondent to use the outer wall of the shop. The learned counsel fort the plaintiff/ respondent has contended that as the shop was let out to the plaintiff/respondent it entitled the tenant to use the premises in such a manner which is commercially profitable for him and in that event it is a natural corollary that the side walls and frontage could be used for fixing boards, show‑cases and hanging articles. The learned Additional District Judge has agreed with this contention and he has given his own reasons for allowing the, appeal. The main consideration before him was that in the agreement there is nothing to show that the frontage shall be used by the plaintiff/respondent but the same is being used for hanging the articles, putting the sign board etc. and therefore, the outer wall facing the passage could also be used, by the plaintiff/respondent in the same manner. This contention does not seem to be correct. It seems that the plaintiff/ respondent had been using the old shop at the same place and had tempo rarily handed over the possession for re‑construction. Under the agree ment he was to be provided shop with a frontage at Preedy Street. There is nothing in the evidence to show that before re‑construction there was a passage which existed in the building and it was commercially used by any of the tenants of that building. The very fact that the plaintiff/respon dent had been insisting for a frontage on Preedy Street shows that it was necessary for him from commercial point of view. Every commercial organization which take any shop or office for its commercial purpose unless prohibited specifically by an agreement, is entitled by use the fron tage or outer part in a reasonable manner for its commercial purpose. In cases of shop mainly it is the frontage which is used for advertising purposes. In the present case as there was no passage existing prior to the new construction it cannot be said that it had been used by the plaintiff/respondent or that any right had been given to the plaintiff/respondent under the agreement to use that passage for the purpose of putting up his show‑cases or hanging its articles on the outer wall of the shop. The agreement provides that there will be a passage with a width of 9 feet join ing Preedy Street and Bohra Bazar. It is the duty of the landlady to main tain this width of 9 feet and it is also the duty of the tenants to see that no obstruction is created and the agreed width is maintained at all times. The passage is mainly for the use of the tenants and their customers. It cannot be let out by the landlady to any one nor can its width be reduced by any party. In view of my finding that the parties cannot reduce the width of the passage and it should be used as a passage the plaintiff/ respondent is not entitled to a decree for declaration that he is entitled to the. beneficial use of the side wall of the shop. However as the landlady and the defendant/respondent have put up show‑cases and are using the side wall it will amount to creating obstruction in the passage and will also reduce the width of the passage. Therefore, a permanent injunction is issued against the landlady and the defendant/respondent restraining them from using the side wall of ‑the plaintiff/respondent shop. The land lady and defendant/respondent are further directed to remove the wooden stand and show‑cases fixed or kept hanging on the side wall. In the result both the revision applications are dismissed and the decree passed by the learned Additional District Judge is modified to the extent stated above. The parties will bear their own costs. K. M. A. Revisions dismissed.