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Madhya Pradesh High Court · body

2012 DIGILAW 605 (MP)

Shankar Prasad v. State of M. P.

2012-06-26

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. This appeal under section 96 of CPC has been filed by the plaintiffs against the judgment and decree dated 10.10.1995 passed by learned 3rd Additional District Judge, Satna in Civil Suit No.9-B/1994 whereby the suit of the plaintiffs for realizing rent has been partly decreed. 2. Briefly stated the suit of the plaintiff is that firm M/s. Shankar Properties, Satna is being owned by Shankar Prasad, Smt. Parmawati and Yogesh Kumar who are husband, wife and son respectively. They have been arrayed as plaintiffs 1 to 3. In Khasra No.512/1 and 512/2 area measuring 0.809 hectare has been recorded in the name of Shankar Properties. The description of the suit property has been mentioned in para 2 of the plaint. According to the plaintiffs on the said land they constructed a structure of godown and the said godown was being given on tenancy basis. The plaintiffs and defendant No.4 entered into a contract of tenancy in the year 1991 and rent Rs.1.50 lacs yearly was fixed for one year. The tenancy commenced from 1.5.1991 and was to be ended on 30.4.1992 because season year of Tendu leaves commenced from 1.5.1991 to 30.4.1992. After obtaining the godown in question on tenancy basis by the defendants they were keeping Tendu leaves in it and a document of rent note was executed which in original is with the defendants. Further it has been pleaded by the plaintiffs that it was agreed that the defendants shall be free to obtain the godown on tenancy basis in future also. 3. On 7.7.1991 there was a firebreak, as a result of which, the Tendu leaves which were kept in godown were burnt and the superstructure of the godown was also burnt. The burnt leaves of Tendu were continued to be kept in the godown and despite several requests made by the plaintiffs to deliver possession so that necessary repair work may be carried out and it may be re-let for the season 1992, but, the defendants did not give the possession and gave assurance that before the expiry of period of tenancy i.e. 30.4.1992 they would clean the godown by removing the burnt leaves and thereafter possession will be delivered to plaintiffs. Despite oral request made by the plaintiffs as well as in writing the defendants did not remove the burnt and unburnt Tendu leaves, as a result of which, the plaintiffs themselves got the godown cleaned in which they incurred a sum of Rs.7,000/-. 4. It is the further case of the plaintiffs that despite oral requests were made by them, the defendants did not pay the rent for the period July 1991 to 30.4.1992 and therefore plaintiffs are entitled to recover following amount : Sl.No. Period Amount 1. Balance amount of rent for the period Rs.1,25,000/- July 1991 to 30.4.1992 2. Interest @ 18% per annum w.e.f. Rs. 39,930/- 1.5.1992 to 10.2.1994 (the date when the suit was filed) 3. Expenses of the plaintiffs incurred for Rs. 7,000/- removing the burnt and unburnt Tendu leaves and the garbage Total .... Rs.1,72,930/- The plaintiffs also sent notice through their counsel on 26.3.1992 and 28.6.1993 but by their reply dated 7.7.1992 the defendants denied to pay any amount and therefore present suit has been filed by the plaintiffs. 5. A joint written statement was filed by the defendants and it has been pleaded that fourth defendant Managing Director, Purviya Sidhi Jila Vanupaj Sahakari Evam Maryadit Sidhi (in short “4th defendant”) took the impugned godown of the plaintiffs in the year 1991 to store Tendu leaves for the season from 1.5.1991 to 30.4.1992 on tenancy basis. In para 4 of the written statement it has been pleaded that rent was to be paid in four equal instalments which were to be paid in the month of August, 1991, November 1991, February 1992 and May 1992. Further it has been admitted by the defendants in the written statement that according to clause 8 of the agreement the period of tenancy can be extended and the rate of rent can also be enhanced. The stand of defendants in the written statement in paras 7 and 10 is that because on account of firebreak the impugned godown was gutted and therefore there is no godown in existence and hence payment of rent does not arise. Thus, it has been prayed that suit be dismissed. 6. The stand of defendants in the written statement in paras 7 and 10 is that because on account of firebreak the impugned godown was gutted and therefore there is no godown in existence and hence payment of rent does not arise. Thus, it has been prayed that suit be dismissed. 6. Learned trial Court framed necessary issues and after recording the evidence of the parties, partly decreed the suit upto the extent of Rs.7,000/ by holding that plaintiffs are entitled to get the charges of removing burnt and unburnt Tendu leaves and garbage. 7. In this matter this appeal has been filed by the plaintiffs. 8. By inviting attention to section 108(e) of the Transfer of Property Act, 1882 (in short “T.P. Act”) it has been vehemently contended by Shri Agrawal, learned counsel for appellants that on account of firebreak, the tenancy was never determined by the lessee (defendants) and if that would be the position since the lease of the land on which superstructure of godown was constructed was still in possession of the defendants and lease was never determined, therefore, the defendants are jointly and severally liable not only to pay rent for the period from July 1991 to 30.4.1992 but they are also liable to pay interest as well as other charges for cleaning the garbage etc. In support of his contention learned counsel has placed heavy reliance on the decision of Kerala High Court George J. Ovungal v. Peter [AIR 1991 Kerala 55]. Thus, it has been prayed that suit for plaintiffs’ be decreed in toto. 9. On the other hand Shri Sharma, learned Panel Lawyer appearing on behalf of respondent No.1-State argued in support of the impugned judgment and submitted that since the godown was totally gutted and it was not at all in the use of defendants, therefore, the question of payment of rent to the plaintiffs does not arise. Nobody has appeared on behalf of other respondents though served. 10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 11. The only question which is to be decided in this appeal is whether learned trial Court rightly dismissed the suit of the plaintiffs for realization of rent for the period July 1991 to 30.4.1992 because on 7.7.1991 godown in question was totally burnt and became unusable. 12. 11. The only question which is to be decided in this appeal is whether learned trial Court rightly dismissed the suit of the plaintiffs for realization of rent for the period July 1991 to 30.4.1992 because on 7.7.1991 godown in question was totally burnt and became unusable. 12. The rent note (Ex.D-1) has been placed on record and its execution has not at all been disputed by the defendants. On bare perusal of this rent note it is gathered that godown was taken on tenancy basis for a period w.e.f. 1.5.1991 to 30.4.1992 on yearly rent of Rs.1.50 lacs which was to be paid in four instalments and first instalment was to be paid in the month of August, 1991, second in November, 1991, third in February 1992 and fourth instalments was to be paid in the month of May 1992. According to the rent note if any damage is caused to the godown, the defendant No.4 M.P. Rajya Laghu Vanupaj Vyapar Evam Vikas Sahakari Evam Maryadit (4th defendant) would not be liable to pay any damage. According to condition No.6 if any damage is caused to the superstructure of the godown resulting into damage to the leaves, the plaintiff (lessor) shall be liable to pay the damages to defendant No.4. Condition No.7 stipulates that plaintiffs are liable to carry out the necessary repairs and in case the same is carried out by the lessee, the charges shall be deducted from the rent. On careful scrutiny of the rent note (Ex.D-1) this Court finds that this condition has not at all been contemplated that in case of any fire which may take place in the godown, the privity of contract of lessor and lessee would come to an end and lease would become void. The possession of defendant No.4 (Cooperative Society) throughout remained with them for the entire period 1.5.1991 to 30.4.1992. The possession of defendant No.4 (Cooperative Society) throughout remained with them for the entire period 1.5.1991 to 30.4.1992. On bare perusal of the letter (Ex.P-15) dated 17.12.1991 this Court finds that it was written by fourth defendant to plaintiff that the burnt material which was affixed in the godown has already been removed by the plaintiff and further plaintiff has started reconstruction of the godown, but, the garbage which is lying in the godown should also be removed and defendant No.4 is not having any objection in case godown which has been gutted is rebuilt and for the purpose of reconstruction of godown, the rooms inside the godown occupied by the employees of defendant No.4 would be vacated. Thus, this document indicates that the possession of godown which was leased out throughout, remained with the fourth defendant.There is no pleading of the defendants that after the firebreak took place in the immovable property/godown, the lease was ever determined by the lessee and therefore according to me in such a situation section 108(e) of T.P. Act will come into play, which reads thus: “Section 108(e). 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. There is no document on record that after the firebreak took place, the lessee opted to render the lease agreement to be void. On the contrary, the letter (Ex.P-15) indicates that possession throughout remained with the lessee. There is no pleading of the defendants including 4th defendant that on account of firebreak which took place in the leased out godown, the lessee opted to declare the lease agreement to be void or the possession was ever handed over to the lessor, the plaintiff. On the contrary, it is borne out from paras 7 and 10 of the written statement that because on account of firebreak the godown did not remain in existence, hence defendants (including defendant No.4) are not liable to pay any rent w.e.f. July 1991 to 30.4.1992. 14. On the contrary, it is borne out from paras 7 and 10 of the written statement that because on account of firebreak the godown did not remain in existence, hence defendants (including defendant No.4) are not liable to pay any rent w.e.f. July 1991 to 30.4.1992. 14. According to me, if during subsistence of lease period any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let-out because of fire, the lease at the option of the lessee can be avoided and in this regard the aforesaid clause (e) of section 108 of T.P. Act applies. Indeed, the land upon which the godown was constructed was leased out to the 4th defendant and the godown will also include the land upon which the superstructure of the godown was built upon, therefore, since the possession of the land was still with the 4th defendant and it was never handed over to the plaintiff by the lessee holding the lease to be void, therefore, 4th defendant is liable to pay the rent for the period from July 1991 to 30.4.1992. In this regard I may profitably place reliance on the decision of Supreme Court Raja Dhruv Dev Chand v. Raja Harmohinder Singh [ AIR 1968 SC 1024 ]. 15. Indeed, clause (e) to section 108 of the T.P. Act will apply only when the godown in question which was destroyed on account of fire and the lessee (4th defendant) by exercising his right under this provision, would have declared the lease to be void. But, it is not at all the case of the defendants including the 4th defendant who entered into agreement of lease with the plaintiff. Since the lessee (4th defendant) did not exercise the said right, his status continued as lessee. There is a Division Bench decision of King’s Bench in Simper v. Coombs [1948(1) All England Law Reports 306], wherein Lord Denning, J. has held that tenancyof the land, which had never been determined by a notice to quit, will not be determined by either the destruction of the premises and in such a situation, the provisions of the landlord and tenant shall remain in existence and tenant is entitled to remain in possession of the leased premises. In this case in July 1944 a house which was let on a weekly tenancy, was demolished by a flying bomb and the tenant went to live elsewhere. No notice to quit was served and no other steps were taken to determine the tenancy in accordance with law by the lessor. In that situation it was held that the tenancy still subsists. In the given case at hand also the similar facts are there. I have already held hereinabove that during the lease period the 4th defendant was in possession of the land upon which superstructure of godown was constructed and was leased out and therefore since possession of the land which was also leased out to 4th defendant was with the said defendant, the lease was not determined and therefore the 4th defendant is liable to pay rent w.e.f. July 1991 to 30.4.1992. Similar view has been taken by Kerala High Court in George J. Ovungal (supra). 16. As a matter of fact, as it appears from the pleadings of the defendants that because the godown itself is not in existence, therefore, the question of making any payment of rent for the lease period does not arise. Indeed the defendants are raising the plea of doctrine of “frustration” which is applicable to section 56 of the Indian Contract Act, 1872 (in short “Contract Act”). This doctrine is applicable in England. It would be relevant to quote section 56 of the Act, 1872 which reads thus : “56. Agreement to do impossible act. -- An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful. -- A contract todo an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful. -- Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisor did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promise sustains through the non-performance of the promise. -- Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisor did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promise sustains through the non-performance of the promise. (Emphasis supplied) To me, this doctrine is not applicable as far as lease is concerned, because in a lease the mutual rights and obligations of lessor and lessee are settled subject to a contract to contrary by clause (e) to section 108 of the T.P. Act (see Transfer of Property Act by Mulla 8th edition page 856). The Supreme Court in Raja Dhruv Dev Chand (supra), in para 8 has also held that this doctrine cannot be extended by analogies borrowed from the English common law. By placing reliance on its earlier decision Satyabrata Ghose v. Mugneeram Bangur and Co. [ AIR 1954 SC 44 ], in para 13 it has been held by their Lordship in Raja Druv Dev Chand (supra), that authorities in the Courts in India have generally taken the view that section 56 of the Contract Act is not applicable when the rights and obligations of the parties arise under a transfer of property under a lease. Therefore, according to me, the plea of doctrine of “contract of frustration” which has been taken by defendants (including 4th defendant) is not applicable in the present case. 17. Learned trial Court by ignoring and overlooking the provisions of section 108(e) of the Act, 1882 has partly decreed the suit of plaintiffs holding that plaintiffs are not entitled for the rent w.e.f. July 1991 to 30.4.1992 which is ex facie illegal. Indeed, the plaintiffs are entitled to recover a sum of Rs.1.25 lacs (Rupees One lac and twenty five thousand) from 4th defendant and interest @ 9% per annum w.e.f. July 1992 till date of filing of the suit which is 10.2.1994 and also future interest @ 6% per annum. Since defendants have not preferred any cross-objections nor filed separate appeal challenging that part of the decree of the learned trial Court directing them to make the payment of Rs.7,000/- to clean the garbage, the said judgment and decree has attained finality and the same is hereby affirmed. 18. Accordingly, this appeal stands allowed to the extent indicated hereinabove. Since defendants have not preferred any cross-objections nor filed separate appeal challenging that part of the decree of the learned trial Court directing them to make the payment of Rs.7,000/- to clean the garbage, the said judgment and decree has attained finality and the same is hereby affirmed. 18. Accordingly, this appeal stands allowed to the extent indicated hereinabove. The suit of the plaintiffs is decreed to the aforesaid extent against the defendant No.4 Managing Director, Purviya Sidhi Jila Vanupaj Sahakari Evam Maryadit Sidhi with costs. Counsel fee, according to schedule, if pre-certified. .............