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2001 DIGILAW 439 (KER)

Damodaran v. Thankappan

2001-08-10

R.BHASKARAN

body2001
Judgment :- R. Bhaskaran, J. Defendants in O.S. No. 1040 of 1999 on the file of the Additional Munsiff, Cherthala, are the revision petitioners. Plaintiffs filed the suit for injunction restraining the defendants from demolishing the plaint schedule shop room and for not to evict the petitioners otherwise than in due process of law. Along with the suit, I.A. No. 4015 of 1999 was filed for temporary injunction. The building is owned by the first defendant. One of the rooms in the building was leased to the first plaintiff by the first defendant on 22.3.1980. The plaintiff was doing business in the shop room. The first defendant and the first plaintiff are co-brothers. The first defendant was demanding to vacate the premises and the plaintiff had refused to vacate the same. Since the plaintiff found that a portion of the southern wall of the building was found demolished, he filed a complaint before the Vyapari Vyavasaya Samithi, which is the association of traders, and the association lodged a complaint before the police. The plaintiffs put sheets in the portion which was removed. The defendants questioned the authority of the plaintiffs to put sheets. According to the petitioners, the defendants also threatened to demolish the building and obstruct the conduct of business. Therefore the suit was filed for the relief already mentioned earlier. 2. The defendants filed objections to the application for interim injunction. It is stated that the plaintiffs had kept the rent in arrears. The plaint schedule building was in a dilapidated condition and the petitioners had not maintained the plaint schedule building. The first defendant had filed a petition before the Sub Divisional Magistrate for demolishing the building before the Sub Divisional Magistrate for demolishing the building on 22.12.1999 and sent registered notice to the first plaintiff for vacating the room. It is also stated in the objection that the defendants have no intention to demolish the building or evict the petitioners by force. 3. While the injunction was in force, the building was said to be demolished on 26.12.1999 at 5 a.m. According to the plaintiffs, defendants 2 and 3 demolished the building on that day. It is also stated in the objection that the defendants have no intention to demolish the building or evict the petitioners by force. 3. While the injunction was in force, the building was said to be demolished on 26.12.1999 at 5 a.m. According to the plaintiffs, defendants 2 and 3 demolished the building on that day. Since the act of demolition was done during X-mas vacation, petitioners filed an application, I.A. No. 20 of 2000 immediately after reopening of court for a direction to restore status quo of the plaint schedule shop room in the place of the demolished shop room. The plaintiffs had filed a complaint before the police. According to the defendants, the building collapsed on account of its old age and it was not destroyed by them. 4. The trial court considered the application for injunction and the application for restoring status quo together. The trial court found on the basis of Exts. Al to A8 that the plaintiffs have been doing business in the shop room from 1989 till the date of demolition of the building. A commission was also taken out on the date of filing of the suit. The commissioner had noted three bricks on the southern wall of the room having been removed. Immediately after the demolition of the building, a complaint has been lodged before the police. The commissioner again visited the property after the alleged demolition took place. The trial court found that the building in question was perished due to the act of the respondents. The trial court also found that there is no total destruction of the building as the basement of the building was still existing and therefore there is no extinguishment of landlord tenant relationship. Finding that the respondents violated the injunction order and demolished the superstructure, the trial court issued a direction to the respondents to restore status quo of the plaint schedule shop room in its original position failing which the plaintiffs were directed to restore the same through the process of court at the expense of the defendants. 5. The defendants filed C.M.A. Nos. 19 and 20 of 2000 against the interlocutory orders. The appellate court confirmed the orders passed by the trial court. The appellate court found that the building was not collapsed due to natural calamities but on account of some force having been used for destroying the building. 5. The defendants filed C.M.A. Nos. 19 and 20 of 2000 against the interlocutory orders. The appellate court confirmed the orders passed by the trial court. The appellate court found that the building was not collapsed due to natural calamities but on account of some force having been used for destroying the building. This was on the basis of the commission report. The roof of the building had been fallen to the front side and the bricks of the walls were seen spread on the four sides. Therefore, the appellate court confirmed the orders passed by the trial court. 6. Before me, the learned counsel appearing for the revision petitioners submitted that when the building is demolished, the landlord tenant relationship ceases to exist and the tenant cannot seek restoration of the building. Strong reliance is placed on the decision of this Court in Kunhabdulla Haji v. Ibrayi (1998 (2) KLT 78). This Court has stated in that decision that when the shop room is destroyed either because of some act or negligence on the part of the tenant or even vis major, it could only be considered as the destruction of the subject-matter of the lease thereby putting an end to the tenancy. It was also held that on the total destruction of the building the lease would stand extinguished since a demise must have a subject-matter and if the subject-matter is destroyed the lease comes to an end. According to me, this decision cannot be made use of by a landlord who demolished the building to defeat the provisions of the Kerala Buildings (Lease & Rent Control) Act by saying that the building itself is demolished and stating that the landlord tenant relationship does not exist. That was not the purport of the decision. In this case, the plaintiffs filed the suit apprehending demolition of the building and finding that three bricks on the southern wall of the room was already removed. There was also a threat by the defendants that the plaintiffs will be evicted forcefully after demolishing the building. An injunction was granted by the trial court. If the building was demolished by the landlord in violation of the injunction order he cannot take shelter under the decision in Kunhabdulla Haji 's case and say that the building is no longer in existence and there is no landlord tenant relationship. An injunction was granted by the trial court. If the building was demolished by the landlord in violation of the injunction order he cannot take shelter under the decision in Kunhabdulla Haji 's case and say that the building is no longer in existence and there is no landlord tenant relationship. That decision is not a licence to demolish the building by the landlord to get the tenant evicted. Therefore, a finding that there is violation of injunction order is a pre-requisite for a direction to restore the building in its original petition. If the injunction order is violated and the building is demolished certainly the defendants can be directed to restore the building to its earlier position. 7. The crucial question to be considered is whether the defendants violated the injunction order. In this case, the Courts below considered the question of making the injunction order absolute and the application to restore the building and passed a common order. If the finding of violation of the injunction order is based on evidence, there is no scope for interference under S.115 of the Code of Civil Procedure. Though Exts. Al to A10 have been marked they are not seen proved by any witnesses. Exts. Al to A8 are produced only to show that the plaintiffs were doing business in the shop building. They have nothing to do with the demolition. Exts. A9 and A10 are copy of mahazar in Crime No. 529 of 1999 of Cherthala Police Station and certified copy of the FIR in Crime No. 529 of 1999 respectively. It is pointed out by the counsel for the revision petitioners that the police has referred the case for want of evidence. No oral evidence is adduced to prove the allegation of violation of injunction order. Violation of injunction order being punishable under 0. 39, R.2A is quasi criminal in nature and the case cannot be decided on mere inferences. The trial court has held in paragraph 13 as follows: "The certified copy of the mahazar prepared by the Sub Inspector of Police, Cherthala, is marked as Ext. A9 and the certified copy of the FIR is marked as Ext. A10. So from Exts. A9 and A10 and the conduct of the third respondent at the time of visit of Ext. A9 and the certified copy of the FIR is marked as Ext. A10. So from Exts. A9 and A10 and the conduct of the third respondent at the time of visit of Ext. C2 Commissioner and circumstances I informed (inferred?) that the respondents demolished the plaint schedule room." The only admissible evidence without proof is the report of the commissioner who has reported that the bricks of the wall were seen on the four sides and the roof were seen on the front side. The report may be admissible in evidence without proof. Based on the report that bricks were lying on four sides of the room and the roof was seen fallen on the front side it is inferred that the defendants have violated the injunction order. A finding in violation of injunction order even without a formal proof by any one of the petitioners giving oral evidence or any other eye witnesses affects the very jurisdiction of the court to pass an order as is done by the trial court. -As a matter of fact, it is the definite case of the plaintiffs in the petition that one of the plaintiffs saw the building being demolished. But he did not give evidence to prove the same. Since it was at 5 a.m. and he was going to the temple there might have been other witnesses also. It is not in dispute that the building was under disrepair for several years and the first commission report itself shows that roof of the room is partly destroyed and to support the roof three poles are seen fixed from inside the room. Evidently, these temporary supports were given for the roof to remain there. In such circumstances in the absence of a positive evidence of violation of the injunction order and merely proceeding on inferences will be without jurisdiction as the consequences are very serious. At the same time no person who has violated the injunction order should be allowed to go scot-free. In such circumstances in the absence of a positive evidence of violation of the injunction order and merely proceeding on inferences will be without jurisdiction as the consequences are very serious. At the same time no person who has violated the injunction order should be allowed to go scot-free. I am therefore inclined to give an opportunity to the plaintiffs to adduce oral evidence in support of the application for restoration of status quo and if the trial court is satisfied that there is evidence to show that the defendants violated the injunction order the trial court should pass an order to restore status quo by the defendants and failing which the plaintiffs must be allowed to do so. It is only because the matter has to be seriously taken note of that I am giving an opportunity to the plaintiffs to adduce evidence. No party can be deemed to have violated the court's order by mere inferences and no party should be allowed to get away from the consequences of violation of the order of court if there is evidence to prove such violation. Since the appellate court has only repeated the finding of the trial court both orders are set aside and the matter is remanded to the trial court for enabling the parties to adduce oral evidence and the trial court shall dispose of the application within two months from the date of receipt of copy of this order. The parties shall appear in the trial court on 22.8.2001. The C.R.P.s are disposed of as above.