Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 211 (KER)

M. B. Muhammedali v. Ibrahim Haji

2002-03-22

N.KRISHNAN NAIR

body2002
Judgment :- N. Krishnan Nair, J. This revision is directed against the order dated 30.1.2002 of the Principl Sub Judge. North Paravur in C.M.A. No. 28/2001. 2. The facts necessary for the disposal of this revision may be stated as follows : The building bearing No. 776/1 of Edathala Panchayat belonged to the petitioner and it was taken on rent by the respondent for conducting rice, flour and Oil Mills therein. While the respondent was conducting business in the aforesaid building, the petitioner instituted O.S. 339/2000 before the Munsiff Court, Aluva for a perpetual injunction restraining the respondent from subletting or transferring possession of the building. While the suit was pending, the building was completely destroyed on the night of 10.9.2000. According to the petitioner, the building came down on its own while according to the respondent it was pulled down by the petitioner. The respondent filed O.P. 26922/2000 before this Court for giving police protection for reconstruction of the building. That original petition was disposed of by this court allowing the respondent to construct a temporary shed to house the machines and the police was directed to see that no obstruction was caused by the petitioner for the construction of the shed. This court also observed that whether the respondent can reside or do business there has to be worked out through civil and criminal proceedings. When the respondent started construction of a temporary shed, the petitioner obstructed the construction of the same and a contempt case was filed by the respondent. Thereafter, specific direction was given to the circle Inspector of Police, Aluva to give police protection to construct the temporary shed. The temporary shed was constructed with police protection on 13.2.2001. Aggrieved by the order of the Single Judge in O.P. 26922/2000, the petitioner preferred W.A. No. 2254/2000 before this Court. A Division Bench of this Court dismissed the Writ Appeal confirming the order of the Single Judge in O.P. 26922/2000. The petitioner herein did not prosecute the suit, O.S. 339/2000 and the suit was dismissed. Then the respondent filed an application before the Munsiff court, Aluva for allowing him to start his business in the temporary shed. That application was dismissed. The order of the Munsiff, rejecting the request of the respondent to start business in the temporary shed was challenged before this court in C.R.P. 1165/2001. Then the respondent filed an application before the Munsiff court, Aluva for allowing him to start his business in the temporary shed. That application was dismissed. The order of the Munsiff, rejecting the request of the respondent to start business in the temporary shed was challenged before this court in C.R.P. 1165/2001. This Court dismissed the C.R.P. confirming the order of the Munsiff. Therafter, the respondent filed the suit, O.S. 297/2001 against the petitioner for a perpetual injunction. Along with the plaint, he moved an application for interlocutory injunction restraining the petitioner from causing any obstruction to the respondent in conducting the business in the scheduled building. Though the application was stoutly opposed by the petitioner, the learned Munsiff allowed the application. Aggrieved by the order, the petitioner preferred C.M.A. 28/2001 and the learned Principal Subordinate Judge, North Paravur dismissed the C.M. Appeal confirming the order of the Munsiff. Hence, this revision. 3. The learned counsel for the petitioner strongly contended that the orders of the courts below are clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the lower courts should have found that since the tenancy is exclusively for the building and not for the land. On the destruction of the subject matter, the said tenancy stands extinguished. He also placed much reliance on the decision of the Supreme Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001)1 S.C.C. 564). On the other hand, the learned counsel for the respondent supported the impugned orders and urged that there is no ground for interference. According to the learned counsel, since this court has permitted the respondent to construct the shed, the respondent is entitled to continue his business and the lower courts were fully justified in granting the relief of interlocutory injunction. 4. The question for consideration is whether the respondent (plaintiff in O.S. 297/2001) is entitled to the relief of interlocutory injunction. He seeks an injunction restraining the petitioner herein from causing any obstruction to him in conducting the business in the scheduled building. It cannot be disputed that the respondent was in occupation of the building bearing No. 776/1 of Edathala Panchayat and he was conducting the business in the building. Admittedly, on the night of 10.9.2000, the building collapsed. It is seen that the lower courts placed reliance on Ext. It cannot be disputed that the respondent was in occupation of the building bearing No. 776/1 of Edathala Panchayat and he was conducting the business in the building. Admittedly, on the night of 10.9.2000, the building collapsed. It is seen that the lower courts placed reliance on Ext. A2 Commission report to hold that the building was destroyed by the wrongful act of the petitioner. According to me, the lower courts should not have jumped into that conclusion solely on the basis of Ext. A2 report. Ext. A2 is the copy of the report filed by the Commissioner in O.S. 309/2000 on the file of the Munsiff Court, Aluva. It is gatherable from Ext. A2 that the Commissioner's conclusion that the building had been demolished is based on interference. Even if it is assumed that the building was destroyed otherwise than by natural calamity, at this stage, it cannot be said that it was the petitioner who pulled down the building. It is also relevant to note that the respondent filed an application before the Munsiff Court in O.S. 309/2000 for allowing him to start his business in the temporary shed and that application was dismissed by the Munsiff. The order was challenged before this Court in C.R.P. 1165/2001 and the court dismissed the C.R.P. confirming the order of the Munsiff. According to me, the question whether the building was pulled down by the petitioner as alleged by the respondent or it came down on its own as contended by the petitioner could be decided only after taking evidence in the case. At present, there are no reliable materials on record to indicate that it was the petitioner who pulled down the building. Whatever may be the cause of the collapse of the building, it is not in dispute that the building was completely destroyed on the night of 10.9.2000. The respondent has no case that the land was leased out to him. According to him, he was only a tenant of the building. It is settled position that if the tenancy is exclusively for premises and not for land, on the destruction of the subject-matter the tenancy stands extinguished. In this connection, it is relevant to note the decisions of this Court in George v. Varghese (1976 KLT 859) and V. sidharthan (Dr) v. Pattiori Ramadasan (1984 KLT 538). It is settled position that if the tenancy is exclusively for premises and not for land, on the destruction of the subject-matter the tenancy stands extinguished. In this connection, it is relevant to note the decisions of this Court in George v. Varghese (1976 KLT 859) and V. sidharthan (Dr) v. Pattiori Ramadasan (1984 KLT 538). In George v. Varghese (Supra), a shop room was taken on rent by the appellant from the respondent and the room was destroyed by accident fire. The appellant vacated the premises and started his business in another building. In due couse, the land lord put up,a new structure in the old premises and inducted his son into the new construction. The appellant instituted the suit for directing the landlord to let out the newly constructed premises to the appellant. It was held by this court that the appellant had neither a constructual nor a statutory right to compell the land lord to surrender possession of the new building to the appellant. 5. In V. Sidharthan (Dr) v. Pattiori Ramadasan (supra) it was held that when there was a total destruction of the shop, the tenancy should extinguish as the demise must have a subject-matter and if the same is destroyed, the tenancy comes to an end. No doubt, a Division Bench of this Court in V. Kalpakam Amma v. Muthurama Iyer Mutukrishna Iyer (AIR 1995 Kerala 99) took a different view of the matter. But, no reliance could be placed on the Kalpakam Amma's case (supra) in view of the decision of the Supreme Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee (supra). In that case, it has been held by the Supreme Court that if a building is governed by the State Rent Act the tenant cannot claim the benefit of the provisions under sec. 106, 108 and III of the Act. According to the Supreme Court, the lease of a shop is the transfer of property for its enjoyment and on destruction of the shop, the tenancy cannot be said to be continuing since the tenancy of a shop presupposes a property in existence and there cannot be subsisting tenancy where the property is not in existence. In the case, admittedly, the tenanted shop had been completely destroyed. Therefore, the tenancy right in respect of the building stands extinguished. In the case, admittedly, the tenanted shop had been completely destroyed. Therefore, the tenancy right in respect of the building stands extinguished. The learned counsel for the respondent strongly contended that since a shed had been constructed in the old premises as per the judgment of this court, in O.P. 26922/2000, the decision of the Supreme court referred to above is not applicable to the facts of this case. I cannot agree. It is true that on the strength of the judgment of this court in O.P. 26922/2000, the petitioner constructed a temporary shed to house the machinery. The petitioner was not allowed to construct a shed or building which is in excess of what is required to house the machinery. This court has not permitted the respondent to function the unit by operating the machinery in the shed. The learned Judge made it clear that whether the respondent can reside or do business in the rented premises are all matters to be decided in civil or criminal proceedings. In this connection, it is also relevant to note the following observations of the Division Bench in Writ Appeal No. 2254/2000. According to us, sufficient safeguard has been given by the learned Single Judge in order to see that the permission granted to construct a shed to house the machinery would not in any manner affect the respective rights of the parties. "In this connection it is also relevant to note the following observations of this Court in C.R.P. 1165/2001 : What is seen from the judgment in the original petition as well as the judgment in the writ appeal is that permission was given for construction of a temporary shed for the purpose of storing the machineries. The direction given cannot be understood as one for restoring the building in it original condition. "Merely because this Court permitted the petitioner to put up a shed to house the machinery, it cannot be said that the petitioner has got a right to conduct business in the building. As already stated, on the destruction of the building, the tenancy right stands extinguished. The permission given by this Court to put up a shed to house the machinery cannot be taken as a licence to conduct the business in the newly put up shed. As already stated, on the destruction of the building, the tenancy right stands extinguished. The permission given by this Court to put up a shed to house the machinery cannot be taken as a licence to conduct the business in the newly put up shed. The learned counsel for the respondent further contended that the decision of the Supreme Court referred to above is applicable only to a case where the destruction of the subject-matter is by natural calamity. According to the learned counsel, in this case, the building was pulled down by the petitioner and therefore, it cannot be said that there is an extinguishment of the tenancy right. The learned counsel also placed reliance on the tenancy right . The learned counsel also placed reliance on the decision of the Supreme Court in Ashok Kapil v. Sana Ullah (dead) and others (1996)6 S.C.C. 342) and contended that the petitioner who pulled down the building should be prevented from taking advantage of his own wrong. No doubt, the maxim, "Nullus commodum capere potest de injuria sua propria' (No man can take advantage of his own wrong) is one of the salient tenets of equity. If the building was destroyed by the wrongful act of the petitioner, he is not entitled to get the assistance of the court for enjoying the fruit of his own wrong. In this case, as already stated, the question whether the building came down on its own or was pulled down by the petitioner, can be decided only after taking evidence . If on evidence it is found that the petitioner was responsible for the collapse of the building, the respondent should be allowed to conduct the business in the shed where the machinery is now housed. Unless the issue is finally decided, it is not just and proper to permit the respondent to conduct the business in the temporary shed. It is also relevant to note that the respondent has not obtained the licence or permission from the Grama Panchayat to conduct or continue the business in the temporary shed. On a consideration of the entire facts and circumstances of the case. I am of the view that the respondent herein has not made out a prima facie case. It follows that he is not entitled to the relief of interlocutory injunction as prayed for. On a consideration of the entire facts and circumstances of the case. I am of the view that the respondent herein has not made out a prima facie case. It follows that he is not entitled to the relief of interlocutory injunction as prayed for. In the result, the impugned orders are set aside and the revision is allowed.