Sita Ram v. Aryamuni — 1965 DIGILAW 186 (ALL)

JUDGMENT S.N. Singh, J. - This is a defendant's appeal in a suit for ejectment from the land shown with letters ABCD in the scketch map given at the foot of the plaint, by demolition of the constructions raised thereon by the defendant, for an injunction restraining the defendant from interfering with the plaintiffs' possession over the land in future and for the recovery of Rs. 300/- as the value of the plaintiffs' bricks used by the defendant in raising new constructions on the land. 2. The fact giving rise to the present appeal are that the plaintiffs are the owners of the land in suit by virtue of a sale deed dated 29th July 1959. The land in suit was in the shape of an Ahata. It contained five rooms, a kitchen and a latrine. The defendant was let in the occupation of this accommodation as a tenant on payment of Rs. 6/- per month by the plaintiffs' vendors. In September 1953 the U. P. State acquired the Ahata under the U. P Land Acquisition Act being Act No. 26 of 1958. After acquiring the Ahata in dispute the U. P. State got the entire constructions of the Ahata demolished and its Malwa sold in the beginning of 1954 with the result that the Ahata became a vacant land. The plaintiffs' vendors filed a writ petition in the High Court challenging the validity of the acquisition of the Ahata by the State Government and this Court by its order dated 11th December 1956 allowed the writ petition and quashed the order of acquisition. After the decision of this Court the State released the land by its notification dated 22nd of June 1957 and gave its possession to the defendant. Thereupon the vendors of the plaintiffs determined the lease by serving upon the defendant notice dated 19th July 1957 determining their tenancy. After having determined the tenancy of the plaintiffs the vendors of the plaintiffs transferred the premises in suit in favour of the plaintiffs as already mentioned. Thereupon the vendors of the plaintiffs determined the lease by serving upon the defendant notice dated 19th July 1957 determining their tenancy. After having determined the tenancy of the plaintiffs the vendors of the plaintiffs transferred the premises in suit in favour of the plaintiffs as already mentioned. The plaintiffs having purchased the premises filed the present suit for the relief already mentioned giving the above mentioned facts and claimed the objectment on the ground that on account of the demolition of the constructions by the State the doctrine of frustration applied to the defendant's tenancy of the Ahata which came to an end and could not be revived by the act of the State in redelivering possession of the vacant land to the defendant, that in any case the tenancy having been determined by a valid notice the defendant was liable to ejectment, that the Rent Control and Eviction Act in the circumstances of the present case did not apply, that in the alternative even if the Rent Control and Eviction Act applied the defendant had made material additions and alterations to the premises that had been let out to him and that he had sub-let a portion of the premises without the plaintiffs or their predecessors permission as such he was liable to ejectment. 3. The suit of the plaintiffs was contested by the defendant inter alia on the ground that his tenancy was revived on the release of the land by the State, that he had the permission of the original lessors to raise constructions in the Ahata and the constructions on the land after the release by the State did not amount to material alterations and additions to the premises originally let out to him. He denied to have sub-let any portion of the premises and to have appropriated any bricks belonging to the plaintiffs. According to the defendant the State had not demolished the entire constructions of the Ahata. He had got possession over a partly demolished Kotha. He further disputed the validity of the notice served on him. 4. He denied to have sub-let any portion of the premises and to have appropriated any bricks belonging to the plaintiffs. According to the defendant the State had not demolished the entire constructions of the Ahata. He had got possession over a partly demolished Kotha. He further disputed the validity of the notice served on him. 4. The learned Civil Judge who tried the case on a consideration of the oral and documentary evidence found that after the acquisition of the land by the State the entire constructions that stood thereon had been demolished and the Ahata reduced to the shape of an open land, the doctrine of frustration did not apply to the instant case, that the defendant's tenancy revived on the release of the land by the State and that the defendant's tenancy had been validly terminated by the notice dated 19th July 1957. He found that the defendant had made constructions in the Ahata without the permission of the original lessors and had made material alterations and additions in the premises and that he had sublet a portion of the premises hence lie was liable to ejectment. He also accepted the case of the plaintiffs that the defendant had misappropriated the bricks of the value of Rs. 300/- belonging to the plaintiffs. In view of the above findings the learned Civil Judge decreed the plaintiffs' suit. 5. On appeal the lower appellate court affirmed the decision of the trial court on all the points except on the question of frustration. It disagreed with the learned Munsif on this question and held that the dectrine of frustration applied to the facts of the case with the result that the defendant could not re-enter on the site of the Ahata when no part of the constructions let out to him stood on it. The result of his findings-was that the appeal was dismissed. 6. The defendant has come up in appeal to, this Court and the learned counsel for the appellant has challenged the correctness of the decision of the two courts below on all the points. 7. On the pleadings of the parties apart from the question decided by the two courts below one another question arose as to whether in the circumstances of the present case Section 3 of the Rent Control and Eviction Act applied or not. 7. On the pleadings of the parties apart from the question decided by the two courts below one another question arose as to whether in the circumstances of the present case Section 3 of the Rent Control and Eviction Act applied or not. I have heard the learned counsel for the parties on this point as well as other points that were covered before the two courts below : 8. The points for determination in this appeal are : 1. Whether the doctrine of frustration applied to the defendant's lease in the circumstances of. the present case ? 2. Whether the notice to quit was bad in law ? 3. Whether Section 3 of the Rent Control and Eviction Act applied in the circumstances of the present case? 4. Whether the defendant hart sub-let any portion of the premises as alleged in the plaint ? 5. Whether there was any material alterations, and additions made by the defendant snaking him liable to ejectment on that ground ? 9. Sri Shanti Bhushan learned counsel for the appellant placed his case admirably well and he completely satisfied me about the incorrectness of the decision of the lower appellate court on points Nos. 1 and 4. But in view of my findings on points Nos. 2 and 3 the decisions of the courts below must be upheld. Now I take the points stated above in their serial order : 10. Point No. 1: On this point the two courts below have differed. According to the trial court the doctrine of frustration did not apply the tenancy of the defendant did not come to an end because of the constructions of the Ahata having been demolished by the Government, whereas the lower appellate court has found the doctrine of frustration applicable to the facts of this case and the defendant was not entitled to re-enter on the site of the Ahata after the order of release of the said Ahata by the Government. 11. Frustration may be defined as the premature determination of an agreement between parties, lawfully entered into and in course of opera. Lion at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so funda. 11. Frustration may be defined as the premature determination of an agreement between parties, lawfully entered into and in course of opera. Lion at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so funda. mental as to be regarded by the law both as striking at the root of the agreement, and as entirely beyond that was contemplated by the parties when they entered into the agreement. 12. The law of frustration as applied between the land-lord and tenant has been summarised in para. 1214 of the Halsbury's Laws of England at p. 553 volume 23 which is as follows : "If the tenant is evicted by some person other than his land-lord or a person claiming under title paramount, he remains liable for the rent during the period of his eviction. Thus he remains liable if he is expelled by a trespasser or enemy occupation; or if the Crown requisitions the premises in pursuance of statutory powers or in the exercise of the prerogative in time of war, or if part of the premises is demolished by a legal authority as a dangerous structure; for in none of these cases is there eviction by title paramount. An alien tenant under a lease made before the out break of hostilities remains liable for rent accruing after that date; even if he becomes as an alien enemy; or if, as an alien enemy, he is prohibited by order in Council from residing personally in the premises. It seems probable that the contractual doctrine of frustration has no application at all to a lease, since a lease is not merely a contract but also creates an estate in land, though possible in certain rare circumstances the doctrine may apply." 13. The above in short depicts the law of frustration as deducible from English decisions. The learned counsel for the parties in the present case cited before me English cases on the point. The learned counsel for the appellant Sri Shanti Bhushan submitted that from 1916 up to date courts in England have all taken the view one way that the doctrine of frustration did not apply to leases. The learned counsel for the parties in the present case cited before me English cases on the point. The learned counsel for the appellant Sri Shanti Bhushan submitted that from 1916 up to date courts in England have all taken the view one way that the doctrine of frustration did not apply to leases. Sri Jagdish Swarup learned counsel for the respondents fairly conceded that consensus of opinion on this point in England was against his clients' case but he referred to the case of Cricklewood Property and Investment Trust Ltd. and Co. v. Leigh tons Investment Trust Ltd., (1945) (1) All England Law Report 252 and invited my attention wherein "Lord Russel of Killowen and Lord Goddard were of opinion that the doctrine had no application to a lease while Viscount Simon L. C. and Lord Wright thought that it might apply in rare and exceptional instances." 14. But in view of the decision of the Hon'ble Supreme Court reported in the case of Satyabrata v. Mugneeram, A.I.R. 1954 S.C. 44, decision of the English courts possess only a persuasive value and may be helpful in showing how the courts in England have decided cases under circumstances similar to those which have come before Indian courts. In India the law of frustration is contained in Sections 32 and 56 of the Contract and has to be found in modified form in Section 108 (e) of the Transfer of Property Act. In the case of Satyabrat v. Hugneeram, A.I.R. 1954 S.C. 44 at page 47 the Hon'ble Supreme Court approved the decision of a Division Bench of the Nagpur High Court on the question of frustration and held as follows : "The question was considered and discussed by a Division Bench of the Nagpur High Court in Kesari Chand v. Governor General in Council LLR (1949) Nag 718 and it was held that the doctrine of frustration comes into play when a contract becomes impossible of performance, after it is made, on account of circumstances beyond the control of the parties. The doctrine is a special case of impossibility and as such comes under Section 56 of the Indian Contract Act. The doctrine is a special case of impossibility and as such comes under Section 56 of the Indian Contract Act. We are in entire agreement with this view which is fortified by a recent pronouncement of this Court in Ganga Saran v. Ram Charan, A.I.R. 1952 S.C. 9 at p. 11, where Fazl Ali, J. in speaking about frustration observed in his judgment as follows : "It seems necessary for us to emphasise that so far as the courts in this country are concerned, they must look primarily to the law as embodied in Sections 32 and 56 of the Indian Contract Act, 1872. We hold, therefore, that the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It would be incorrect to say that Section 56 of the Contract Act applies only to cases of physical impossibility and that where this section is not applicable, recourse can be had to the principles of English Law on the subject of frustration. It must be held also, that, to the extent that the Indian Contract Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehors' these statutory provisions." 15. It has been argued on behalf of the appellant relying on the case of Jiwanlal & Co. v. Manot & Co., 64 C. W. N. 932, that the entire law of the doctrine of frustration applicable to leases is to be found in Section 108(e) of the Transfer of Property Act and on this basis it had been submitted that applying the principle of Section 108(e) it will be found that this principle of frustration can be applied only at the option of the lessee. If the lessee does not choose to treat the lease as void the lease cannot be avoided by the lessor. If the lessee does not choose to treat the lease as void the lease cannot be avoided by the lessor. On the contrary it has been argued on behalf of the respondents that Section 108(e) of the Transfer of Property Act is not exhaustive and in case if the facts are not covered by Section 108(e) of the Transfer of Property Act we have to look back to Sec, 56 of the Contract Act for applying the principles of frustration and it has been further argued that the facts of the present case are not covered by Section 108(e) of the Transfer of Property Act which is as follows : "If by fine, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unlit for the purposes for which it was let, the lease shall, at the option of the lessee, be void : It is contended that this subsection applies only when there is a partial or material destruction and this subsection does not apply when there is a complete destruction. Further it is said that since in the present case the Government after acquiring it had demolished the constructions the case is not covered by the language of sub-Cl. (e) of Section 108 of the Transfer of Property Act. The learned counsel supported this submission of his by relying on the cases of Kshitish Chandra v. Shiba Rani Devi, AIR 1950 Calcutta 441 and Gurdarshan Singh v. Bishan Singh, A.I.R. 1963 Punjab 49, which support his submissions completely. He submitted that the decision reported in the case of Jiwanlal & Co. v. Manot & Co., requires reconsideration. As against this the learned counsel for the appellants in reply submitted that the case of Kshitish Chandra v. Shiba Rani Devi does not lay down the correct law. He submitted that the decision reported in the case of Jiwanlal & Co. v. Manot & Co., requires reconsideration. As against this the learned counsel for the appellants in reply submitted that the case of Kshitish Chandra v. Shiba Rani Devi does not lay down the correct law. This case was desented to in the cases of Jugal Kishore v. Subh Karan, AIR 1952 Calcutta 571 and Mahadeo Prasad v. Calcutta D. & C. Co., AIR 1961 Calcutta 70 It was submitted that as the Transfer of Property Act has special provision regarding leases the general provision as enacted in Section 56 of the Contract Act would not apply in view of the specific provision relating to leases under Section 108(e) of the Transfer of Property Act and in that view Section 56 of the Contract Act has no application to leases and instead of that Section 108(e) will apply so far as frustration relating to leases is concerned, and for this proposition reliance was placed on the cases of Mahadeo Pd. v. Calcutta D. & C. Co. head note (b) and Kedar Lal v. Hari Lal, A.I.R. 1952 S.C. 47. These two cases supported the submissions of the learned counsel for the appellant." 16. I have considered the respective submissions of the learned counsel for the parties and have gone through the case cited by the learned counsel. In my opinion if I may say so with great respect I am in respectful agreement with the view, expressed in the cases of Jiwanlal Co. v. Manot & Co.' and Mahadeo Prasad v. Calcutta D. & C. Co.'. Section 108 of the Transfer of Property Act is exhaustive so far as the rights and liabilities of lessor and lessee are concerned. This section has given the various rights and liabilities of the lessor and lessees. There is good reason for the enactment of Section 108 (e) of the Transfer of Property Act which has given an option to the lessee to treat a lease void on the happening of a certain event. For if there is a material destruction it is to the prejudice of the lessee and even after that destruction the lessee wants to continue in possession he has been given an option to remain in possession and fulfill the part of his contract. For if there is a material destruction it is to the prejudice of the lessee and even after that destruction the lessee wants to continue in possession he has been given an option to remain in possession and fulfill the part of his contract. In such a case if the lessee chooses to continue the terms of the lease it will not at all be prejudicial to the lessor and it has rightly been enacted that in such a case it is the option of the lessee that would bring about frustration if at all this term is applicable in such a case, for frustration would ordinarily mean the dissolution of the contract automatically. We can safely say that this will be a modified form of frustration which has been enacted in Section 108(e) of the transfer of Property Act. 17. In view of the above discussion I find that the defendant not having exercised his option to treat the lease as void his tenancy did not come to an end by the acquisition of the premises under the Land Acquisition Act or by the complete destruction of the construction by the State Government. The learned counsel for the respondent further submitted that in view of the fact that the property was acquired in 1953 and the defendant did not choose to pay the rent for all these years he will be deemed to have surrendered the premises in favour of the lessor. I do not think that such an inference can be drawn by mere non-payment of the rent. When the property was acquired by the Government it was both the lessors as well as the lessees interest that were acquired. The defendant might have thought of adjusting the rent in the compensation he might have got from the Government. This point of implied surrender had not been taken in the courts below and on the fact of the present case I am not prepared to infer implied surrender. In view of the above discussion I accept the contention of the learned counsel for the appellant that the lower appellate court erred in holding that the principle of frustration applied to the facts of the present case. 18. Points Nos. 2 and 3, So far as the validity of the notice is concern. ed it could not be successfully challenged by the learned counsel for the appellant. 18. Points Nos. 2 and 3, So far as the validity of the notice is concern. ed it could not be successfully challenged by the learned counsel for the appellant. The only thing he submitted was as to whether the tenancy which was terminated by the vendor could be taken advantage of by the plaintiffs (vendees). In my opinion there does not appear to be any bar to the vendees in relying on the notice of the determination of the lease by the vendor whom after the purchase they have not waived the same. Now having accepted that there was a valid determination of the lease we have to see whether the suit of the plaintiffs for ejectment could be decreed or not. On the determination of the lease the plaintiffs got a right to eject the defendant. It is only when Section 3 of the Rent Control and Eviction Act is held to be applicable he can be refused the relief of ejectment. In order to apply Section 3 of the Rent Control and Eviction Act the eviction sought must be from an accommodation. 'Accommodation' is defined as follows : "Accommodation' means residential and non-residential accommodation in any building or part of a building. On the facts found by the courts below it is apparent that the ejectment sought in the present case was not from an accommodation as contemplated by the Rent Control and Eviction Act. As such in my view Sec., 3 of the Rent Control and Eviction Act was not applicable in the circumstances of the present case. It has been argued on behalf of the appellant that the respondents should not be permitted to raise this point in second appeal though they had mentioned this point in their plaint but they did not press it before any of the two courts below as such they will be deemed to have abandoned it. I have considered this objection of the learned counsel for the appellant but do not think that the plaintiffs can be disallowed from arguing this point in second appeal. I have considered this objection of the learned counsel for the appellant but do not think that the plaintiffs can be disallowed from arguing this point in second appeal. My reasons for so holding are that the plaintiffs are not at all at fault when they had pleaded this fact in their plaint and when they have succeeded from the trial court it was not necessary to have argued this point before the lower appellate court unless the lower appellate court had disagreed with the decision of the trial court. It is only when the respondents found that the view taken by the courts below may not be acceptable to this Court that this argument was advanced. The appellant has not been taken by surprise and on the admitted facts of the case this point of law arises and the Supreme Court in a very recent case Chitturi Sabbaenna v. Kudana Subbanna, Civil Appeal No, 598 of 1961 decided on 18th Dec. 1964 held that when the question sought to be raised was a pure question of law and was not dependant on the determination of any question of fact it should be allowed to be raised at the appellate stage. In this case no question of fact has to be determined but the applicability of Section 3 has to be seen of the admitted facts of the case. The respondents are always entitled to support the decree of the lower appellate court on other grounds than decided by the lower appellate court. It was next contended that Section 3 of the Rent Control and Eviction Act should be applied to this case because at the time of the letting what was given to the defendant was an accommodation and if on account of supervening circumstances the accommodation has disappeared it should be deemed to be an accommodation in the eye of law. It was submitted that if this submission of his is not accepted hardship may occur to the tenant for whose benefit this Control of Rent and Eviction Act was passed and he gave an illustration that if his submission is not accepted land-lords might pull down the accommodation and make the purpose of the Act in fructuous. It was submitted that if this submission of his is not accepted hardship may occur to the tenant for whose benefit this Control of Rent and Eviction Act was passed and he gave an illustration that if his submission is not accepted land-lords might pull down the accommodation and make the purpose of the Act in fructuous. The illustration taken by the learned counsel is an extreme one but in that case in my view the land-lord will be refused the relief on the ground that he cannot take advantage of his own wrong. But in the present case the facts found disclose that there was no act of the land. lord which was responsible for the demolition of the constructions Bonafides of the land-lord cannot be doubted. It is on account of the efforts of the land-lord that the order of acquisition was quashed. He was not at all instrumental in bringing about the demolition of the construction. On a plain reading of Section 3 of the Rent Control and Eviction Act I am clear in my mind that it is the state of affairs at the date of suit which is relevant for the purposes of this section. In this case either the premises in suit is a vacant land or if the construction made by the defendant is considered it has come in existence after 1951. In either case it will not be covered by the definition as contemplated by the Rent Control and Eviction Act. In my view after determining the lease and since Section 3 of the Rent Control and Eviction Act was not applicable in the circumstances of the case the plaintiffs were entitled to the relief of ejectment claimed." 19. Point No. 4: On this point I am again in agreement with the learned counsel for the appellant that the plaintiffs having pleaded in para. 8 of their plaint one kind of sub-letting they cannot rely on a different sub-letting without amending the plaint. In the plaint in Para. 8 the plaintiffs had alleged that the defendant had let out four wooden stalls on the western border of the compound to sub-tenants. This case of the plaintiffs had not been accepted by the two courts below. They had accepted sub-letting entirely of a different kind. In the plaint in Para. 8 the plaintiffs had alleged that the defendant had let out four wooden stalls on the western border of the compound to sub-tenants. This case of the plaintiffs had not been accepted by the two courts below. They had accepted sub-letting entirely of a different kind. It was held that the defendant has sub-let the premises to bus owners which was not the case set up in the plaint. The learned counsel for the appellant is right in submitting that when the plaintiffs had based their case on sub-letting of one kind they could not be allowed to rely on a sub-let ting of a different type. He has supported his submission by relying on the cases of Trojan and Co. v. Nagappa, A.I.R. 1953 S. C. 235 head note (d), Deoki Nandan v. Murlidhar, A.I.R. 1957 S. C. 133 head note (i) and M. M. B. Catholicos v. T. Paulo Ayira, A.I.R. 1959 S.C. 31 head note (e). These cases fully support his submissions and I am inclined to accept it. 20. The learned counsel for the respondents in reply invited by attention to a replication in which the sub-letting accepted by the courts below was allowed but this replication cannot be used in favour of the plaintiffs when this was rejected by the trial court with a clear order that the facts disclosed in the replication could be brought on the record by means of an amendment application. The plaintiffs having failed to get their plaint amended they cannot be allowed to rely on the replication. 21. In view of what has been said above I hold that the plaintiffs have failed to prove illegal sub-letting as alleged in the plaint and the courts below erred in holding a different sub-letting not pleaded in the plaint. 22. Point No. 5: In my view of my decision on points Nos. 2 and 3 it is not necessary to determine this point. However, since both the parties have put forth their submission this point I am expressing my views on this point as well. It has been argued on behalf of the appellant that what the defendant has done in this case is to make certain constructions on the site of the old constructions which had been demolished by the State Government and the new constructions are much less than the old ones. It has been argued on behalf of the appellant that what the defendant has done in this case is to make certain constructions on the site of the old constructions which had been demolished by the State Government and the new constructions are much less than the old ones. On the other hand it has been argued by the learned counsel for the respondents that in view of Section 108(p) of the Transfer of Property Act the defendants were not entitled to make constructions on the land without the permission of the lessor. This submission is borne out by the said section. Not only this the submission of the learned counsel for the respondents finds also support from the case of Jiwanlal & Co. v. Manot & Co.' wherein the learned Judge has observed as follows: "I have also held that neither the lessee has a right to raise a new structure at his cost on the demolished portion nor can he compel the lessor to build another." 23. The result is that if the constructions are completely demolished the lessee if he wants to use the vacant land he can use the same without treating the lease as void but neither he has a right to make constructions of his own nor can he compel the lessor to make a new construction for him. In such circumstances if the tenant makes the construction against the provisions of law in my opinion it has to be held that he has made material alterations and he should be deemed to have made himself liable to ejectment even if the Rent Control and Eviction Act is held applicable to the facts of the case. The learned counsel for the appellant has supported his submission on this point as well by relying on the cases of Sardar Bahadur Mathur v. Kali Prasad Gupta, 1961 A.L.J. 137, and Jai Bhawan v. Padam Sen, 1964 A.L.J. 991 but the cases cited by the learned counsel are clearly distinguishable from the facts of the present case. 24. In view of my decision on points Nos. 2, 3 and 5 the appeal fails and is hereby dismissed with costs.