KISHAN CHAND v. BIHARI LAL — 1999 DIGILAW 63 (HP)

JUDGMENT R.L. KHURANA, J.—This regular second appeal against the judgment and decree dated 31.10.1992 of the learned Additional District Judge, Mandi, at the instance of the plaintiff was admitted for hearing on the following substantial question of law :— "Whether on the facts the defendants were under legal obligations to restore the premises to its original form?" There existed a shop in the ground floor of the building located in the land measuring 22.52 Sq. meters comprising of Khasra No. 1298 of Mohal Bhojpur, Sundernagar. The plaintiff was a tenant in respect of this shop under defendant No. 3 on payment of monthly rental of Rs. 25/-. The entire building including the shop was gutted in fire on 9.1.1986. 2. The case of the plaintiff is that though the shop under his tenancy was gutted in fire, his tenancy continues to subsist. He, therefore, had approached the defendants to reconstruct the shop and restore it to its original condition. Since the defendants failed to reconstruct the shop and restore it to its original condition, the plaintiff filed a suit claiming the following reliefs :— (a) mandatory injunction directing the defendants to restore the shop to its original condition within a period as may be fixed by the Court; or (b) the plaintiff be permitted to construct the same at the cost and consequences of the defendants; and (c) in the alternative if the defendants are able to dislodge the plaintiff from possession of the suit land, a decree for possession thereof. 3. The suit was resisted and contested only by defendants No. 1 and 3. They pleaded that the building was owned only by defendant No. 3 and the plaintiff was a tenant in respect of a shop under the defendant No. 3. The building including the shop was completely gutted in fire on 9.1.1986. Since the subject-matter of the base stood completely destroyed by fire, the tenancy came to an end and the plaintiff was not entitled to any relief. Following issues were framed by the learned trial Court on the basis of the pleadings of the parties :— 1. Whether the plaintiff is a tenant of the shop in suit? OPP 2. Whether the plaintiff has got no right to sue as alleged? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is a tenant of the shop in suit? OPP 2. Whether the plaintiff has got no right to sue as alleged? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the shop in suit was destroyed by an act of God for which nobody is responsible as alleged?OPD-3 (onus objected to) 5-A.Whether this Court has got no jurisdiction to try the suit? OPD 6. Relief. 4. Issue No. 1 was decided against the plaintiff while Issue Nos. 3 to 4 were found in favour of the defendants. The learned trial Court came to the conclusion that though the plaintiff was a tenant under defendant No. 3 in respect of a shop which was completely gutted in fire, the tenancy had come to an end since the subject-matter of the tenancy was not in existence. Therefore, the plaintiff had no right to sue and the cause of action. The suit was held to be not maintainable. Under Issue No. 5 the fire was held to be an act of God and accidental. While answering Issue No. 5-A against the defendants, it was held that the Civil Court had the jurisdiction. Consequent upon such findings, the suit filed by. the plaintiff was dismissed by the learned trial Court vide judgment and decree dated 30.3.1989. 5. The learned Additional District Judge while dismissing the appeal of the plaintiff affirmed the findings of the learned trial Court. 6. Admittedly, it is not the case of the plaintiff that the fire was caused due to any act of commission or omission of the defendants. The plaintiff in para 2 of his plaint has averred as under:— "That the aforesaid shop was destroyed by fire on 9.1.86 and the cause of the fire is not known to the plaintiff......" 7. While appearing as PW-1 also the plaintiff has pleaded ignorance as to the cause of fire. Since the cause of fire is not attributed to the defendants, the only conclusion is that the same was accidental. 8. Under the law, if the property is destroyed by fire or other natural calamities, there is no legal obligation on the landlord/ owner to reconstruct and restore the same to its original condition. 9. In Dr. Since the cause of fire is not attributed to the defendants, the only conclusion is that the same was accidental. 8. Under the law, if the property is destroyed by fire or other natural calamities, there is no legal obligation on the landlord/ owner to reconstruct and restore the same to its original condition. 9. In Dr. V. Sidharthan v. Pattiori Ramadasan, (AIR 1984 Kerala 181), the shop let out to the tenant was completely damaged by a lorry which had dashed into it. The tenant attempted to construct a shop at the same site which was objected to be the landlord. A suit was thereafter brought by the landlord for an injunction to stop the construction. In such suit he obtained an order of temporary injunction. However, in breach of such temporary injunction the tenant proceeded with the construction of the shop. The landlord then amended his plaint into the one for recovery of possession of the site after restoring the same to its original condition. The trial Court while decreeing the suit for possession of the site in favour of the landlord came to the conclusion that the original tenanted shop was completely destroyed in the accident and that the construction of the new shop by the tenant was unauthorised. The findings of the learned trial Court were affirmed in appeal by the learned first Appellate Court. Second appeal preferred by the tenant came to be heard by a Division Bench of the High Court. The question before the High Court was—Does not a lease deed stand terminated on the destruction of the subject-matter of the lease? 10. Following the ratio laid down in George v. Varghese (1977 (1) RCJ 254), the Division Bench held :— "Where the subject-matter of a lease like the building is totally destroyed, the tenant is not entitled to squat on the ground where the building stood or construct a new building in its place or require the landlord to put up a new structure." 11. The Division Bench further went on to hold that on total destruction of the building, the lease stood extinguished since a demise must have a subject-matter and if it is destrDyed, the lease comes to an end. 12. The Division Bench further went on to hold that on total destruction of the building, the lease stood extinguished since a demise must have a subject-matter and if it is destrDyed, the lease comes to an end. 12. The learned Counsel for the plaintiff by placing reliance on the provisions of Section 108 (e), Transfer of Property Act, 1882, has contended that due to destruction of the shop by fire the tenancy would not come to an end and that the same can be rendered void only at the instance of the lessee, that is the plaintiff. It was further contended that even if the shop was destroyed completely, the plaintiff would continue to hold the land underneath such shop as a tenant since building includes the land underneath. Clause (e) of Section 108, Transfer of Property Act, 1882, provides:— "If by fire, tempest or flood or violence of any army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void : Provided that if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision." 13. The proviso to Clause (e) above, has no relevancy in the present case since it is not the case of the defendants that the shop was destroyed by fire as a result of wrongful act or default of the plaintiff. There is nothing on the record to suggest that the plaintiff had any time exercise the option given to him under the above provision. Therefore, it will have to be presumed that the plaintiff has not exercised the option. What then is the result? 14. The answer to this question can be found in the decision of the Kerala High Court in George v. Varghese (supra) wherein a similar question had arisen for consideration. In the said case a shop room was taken on rent by the plaintiff therein vide agreement Ex. A-l. This shop was completely destroyed by fire sometime in the year 1968. The defendant-landlord put up a new structure in the old premises and inducted his son into the new construction. In the said case a shop room was taken on rent by the plaintiff therein vide agreement Ex. A-l. This shop was completely destroyed by fire sometime in the year 1968. The defendant-landlord put up a new structure in the old premises and inducted his son into the new construction. A suit then came to be instituted by the plaintiff tenant for directing the defendant-landlord to let out the newly constructed premises to him by claiming that the agreement Ex. A-1 was still subsisting. The action was resisted by the defendant-landlord, inter alia, on the ground that Ext. A-l was terminated by the voluntary and unqualified surrender of the premises by the plaintiff-tenant. The contention raised before the High Court by the plaintiff-tenant was that agreement Ex. A-l continued to be in force and that on the strength of such agreement he was entitled to the occupation of the newly constructed building. In support of his contention, the plaintiff-tenant placed reliance on the provisions contained in Section 108 (e), Transfer of Property Act, 1882. It was held :— ".......The utmost that could be spelt out is that Ext. A-1 contract subsists. It may be relevant in this connection to refer to Section 111 of the Act, which deals with determination of leases. The destruction of the leasehold property under the circumstances mentioned in Section 108 (e) by itself does not amount to a determination of the lease under Section 111. In other words, even though the lease hold property is destroyed the tenancy is not automatically determined. Despite the destruction of the premises if the lease is to subsist who is the sufferer? Apparently it is the lessee, who is at a disadvantage because without the benefit of enjoying the right to property he is fastened with the liability to pay the contractual rent. It is presumably to avoid such a contingency that the tenant is conferred an option by Section 108 (e) to treat the contract as void and thereby avoid the liability of paying the rent in future; The learned Counsel for the appellant did not rightly bargain for the position that even if the tenant did not exercise his option and the contract continues without determination under Section 111 the tenant has got a right to compel the landlord to construct a building in the old premises and give occupation to the tenant. The qualified proposition advanced by the appellant is that even if the landlord has no obligation to construct a building at the old site, when once a structure is put up the tenant automatically gets a right to occupy the newly constructed building in view of the subsistence of the original contract. The proposition is not as easy as it is alleged to be. Suppose the destroyed building was a substantial one and the newly constructed structure is smaller in dimension and value, will the tenant be prepared to occupy the new structure agreeing to pay the old rent? To that question the appellant apparently has no answer. The only way he can get over the situation is by pleading that there is yet another option resting with the tenant either to accept or not to accept the newly constructed premises. I do not think that the express wording of Section 108 (e) is capable of any such construction. Thus Section 108 (e) of the Act cannot be construed as supporting the appellants case that he is entitled to the occupation of the new building in view of the subsistence of Ext. A-l. The appellant has thus neither a contractual nor a statutory right to compel the respondent to surrender possession of the new building to the appellant......" 15. To the similar effect it has been held in Mahadeo Prasad Shaw v. Calcutta Dyeing and Cleaning Company, (AIR 1961 Cal. 70). 16. Insofar as the question that the building includes land underneath is concerned, suffice to say that the law does not provide that lease of building above is impermissible or that it necessarily takes in the site underneath as well. The lease of a building alone is possible is apparent from the following passage in Mahadeo Prasad Shaw v. Calcutta Dyeing and Cleaning Company (supra): "Having held that the lease has not been frustrated because of demolition of one of the structures and having further held the petitioner tenant is entitled to restitution, the question is to which property the tenant may be restituted. I would make it clear there is no question of restitution with regard to the demolished structure. The structure has been demolished and is not in existence, so no question of tenants option arises with regard to the non-existing properties. I would make it clear there is no question of restitution with regard to the demolished structure. The structure has been demolished and is not in existence, so no question of tenants option arises with regard to the non-existing properties. The structure was leased out, not the land underlying and after the structure was demolished, the tenant cannot be put in possession of that structure as a matter of fact even if he would like to be so put in possession; he has no right to build on the land another structure nor has he any right to compel the landlord to raise a similar structure for him............” 17. In view of the above, the question arising for determination is whether the lease in favour of the plaintiff covered only the shop or the land underneath as well. 18. The plaintiff in para-1 of his plaint has specifically averred that he is a tenant of the shop on the ground floor of the building. To the similar effect is his statement as PW-1. During the course of cross-examination the plaintiff admitted that a rent note was duly executed when the shop was let out to him. Such rent note has not been placed on the record of the case by the plaintiff. He has merely stated that such rent note is not in his possession. No steps were also taken by the plaintiff to call upon the defendants to produce the rent note. Therefore, by drawing an adverse inference it will have to be presumed that had such rent note been produced the same would not have supported the case of the plaintiff to show that the land underneath the shop was also let out. Therefore, in the present case it can be held that the tenancy was only in respect of the shop. 19. Even if it be assumed that the shop premises included the land underneath, no benefit can be derived therefrom by the plaintiff by taking recourse to Section 108 (e) of the Transfer of Property Act, 1882. 20. Therefore, in the present case it can be held that the tenancy was only in respect of the shop. 19. Even if it be assumed that the shop premises included the land underneath, no benefit can be derived therefrom by the plaintiff by taking recourse to Section 108 (e) of the Transfer of Property Act, 1882. 20. As held in George v. Varghese (supra), it is presumably to avoid a contingency of the lessee being fastened with the liability of payment of rent even if a material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, that the tenant is conferred an option by Section 108 (e), Transfer of Property Act, 1882, to treat the lease as void. However, that does not mean that in case where the subject matter of the lease like the building is totally destroyed, the tenant is entitled to squat on the ground where the building was situate or construct a new building in its place or require the landlord to put up a new structure. 21. Much reliance was placed by the learned Counsel for the plaintiff on the ratio laid down in Krishna Laxman Yadav and others v. Narsinghrao Vithalrao Sonawane and another, (AIR 1973 Bom. 358), wherein it was held that destruction of tenanted house by flood does not determine tenancy and that the suit by tenant to declare rights to re-occupy corresponding portion in the new house proposed to be constructed by the landlord on the same site is maintainable. 22. The above ratio is not applicable to the present case. The case before the Bombay High Court was the one under Section 28 of the Bombay Rents, Hotel and Lodging House Rate (Control) Act, 1947. No similar provision exists in the Himachal Pradesh Urban Rent Control Act, 1987. 23. There is no denying that the building of which the shop in question was a part was located in the Urban area of Sundernagar and the provisions of Himachal Pradesh Urban Rent Control Act, 1987 are applicable. Under Section 13 thereof every landlord is duty bound to keep the tenanted premises in good and tenantable repairs. 23. There is no denying that the building of which the shop in question was a part was located in the Urban area of Sundernagar and the provisions of Himachal Pradesh Urban Rent Control Act, 1987 are applicable. Under Section 13 thereof every landlord is duty bound to keep the tenanted premises in good and tenantable repairs. On the failure of the landlord to perform such duty, right has been conferred upon the tenant to carry out such repairs and deduct the expenses so incurred from the rent or to recover the same from the landlord provided, however, that the amount so deducted or recoverable, in any year shall not exceed 1/ 12th of the rent payable during the year. An additional provision has been made under subsection (3) of Section 13 in respect of the buildings which have become unhabitable or non-usable for want of repairs. In such cases, the tenant has been conferred a right to approach the Rent Controller for necessary directions for carrying out repairs, and/or to make the building in good condition and tenantable repairs. In such eventualities, the amount to be deducted from the rent or recoverable from the landlord, in a year, is not to exceed three months rent. 24. The question as to what is meant by the word "repairs" under Section 13 of the Himachal Pradesh Urban Rent Control Act, 1987, came up for consideration before a learned Single Judge of this Court in Laxman Dass v. Suresh Kumar, (1993 (2) Shim. L.C. 315). It was held that "reconstruction" of a building does not fall within the ambit of "repairs" and as such the Rent Controller has no power to permit the tenant to carry out reconstruction. Following the observations made by Lord Justice Buckley in Lurcottv. Wakelly, 1911(1) KB 905, it was held that if repair of the whole subject matter has become impossible a covenant to repair does not carry an obligation to renew or replace. For the foregoing reasons the substantial question, on which the present appeal was admitted for hearing, is answered in the negative and against the plaintiff. Resultantly, the present appeal is dismissed leaving the parties to bear their own costs.