Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1054 (GAU)

Sayeda Rubia Begum v. Dasarath Prasad

2017-08-04

KALYAN RAI SURANA

body2017
JUDGMENT : 1. Heard Mr. A. Sattar learned counsel for the petitioners as well as Mr. A. Ganguly, the learned counsel for the respondent. 2. In challenge in this application filed under article 227 of the Constitution of India is the order dated 27.7.2015 passed by the court of the learned Munsiff No. 1, Lakhimpur, North Lakhimpur, by which the petition for amendment of plaint filed by the petitioners-plaintiffs under order VI, rule 17 of the Civil Procedure Code (‘CPC’) was rejected. 3. The petitioners are the plaintiffs in T.S No. 11/2010. In the said suit, the petitioners had, inter alia, prayed for ejectment of the respondent-defendant from the suit premises, for recovery of arrear rent, etc. The following prayers were made in the plaint: “Ka: A decree declaring that the defendant/tenant is a defaulter in respect of the suit premises; Kha: A decree declaring that the defendant is liable to be evicted from the schedule suit premises; Ga: A decree for realisation of the arrear rent of the month of May 2009; Gha: A decree for any other relief/reliefs to which the plaintiffs are entitled to in the eye of law as the hon'ble court may deem fit and proper.” 4. On the basis of pleadings, 8 issues were framed on 29.3.2010: “1. Whether there exists cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is bad for defect of the party? 4. Whether the defendant if defaulter in respect of rent to the plaintiff? 5. Whether the defendant is liable to be evicted from the suit premises? 6. Whether the plaintiff is entitled to realize the rent from the defendant as per prayer? 7. Whether the plaintiff is entitled to the decree and/or relief as prayed for? 8. What other relief or reliefs parties of this suit are entitled for?” 5. During the pendency of the trial, the suit premises was gutted by fire on 29.5.2011 and the suit/tenanted premises was reduced to ashes. In view of the ratio of the case of Vannattankandy Ibrayi v. Kunhabdullah Hajee, (2001) 1 SCC 564 , wherein it was, inter alia, held that if the suit premises was fully gutted by fire and it ceased to exist, then the landlord-tenant no longer existed, the petitioners were advised by the counsel to withdraw prayer No. ‘kha’. In view of the ratio of the case of Vannattankandy Ibrayi v. Kunhabdullah Hajee, (2001) 1 SCC 564 , wherein it was, inter alia, held that if the suit premises was fully gutted by fire and it ceased to exist, then the landlord-tenant no longer existed, the petitioners were advised by the counsel to withdraw prayer No. ‘kha’. As such, the petitioners filed a petition for amendment to delete prayer ‘kha’ only. 6. The witnesses of both sides were examined and cross-examined and thereafter, the case was fixed for argument. 7. At that stage, i.e., at the stage of argument, the counsel for the petitioners came to know that the case of Vannattankandy Ibrayi(supra) was overruled by a Full Bench decision of the hon'ble Supreme Court of India in the case of Shaha Ratansi Khimji v. Proposed Kumbhar Sons Hotel (P.) Ltd., 2015 (1) GLT (SC) 180. In view of the said subsequent development, i.e., change in the interpretation of law, the petitioner once again filed a petition under order VI, rule 17, CPC for amendment of the plaint for reinserting the prayer No. ‘kha’. 8. The respondent by filing their written objection, opposed the prayer. Upon hearing the parties, the learned trial court by order dated 27.7.2015, rejected the prayer for amendment with a cost of Rs. 500, inter alia, on the ground that the frequent changes in the relief sought by the plaintiff could cost prejudice to the defendant and as far as the matter in regard to the changes in the prevalent law regarding lease and tenancy is concerned, the court will take the matter into consideration, if applicable. The aforesaid order is in challenge in the present revision under article 227 of the Constitution of India. 9. The respondent has opposed the present application by filing affidavit-in-opposition. 10. The learned counsel for the petitioner has submitted that if the prayer ‘kha’ is inserted back to the plaint, the re-inserted prayer would be squarely covered by issue No. 5 and, therefore, there will be no likelihood for any amendment to the issues framed by the trial court and the nature and character of the suit will not be changed in any way. It is further submitted that in the present case, the written statement was filed prior to the first amendment of the plaint, therefore, by re-inserting the prayer ‘kha’, the respondent would not suffer any prejudice whatsoever. 11. Per contra, the learned counsel for the respondent submits that as prayer ‘kha’ of the plaint was withdrawn under order XXIII, rule 1, CPC the petitioner is not entitled to re-agitate the abandoned claim. It is further submitted that in the present case in hand, the existing prayer ‘ka’ is nothing without the prayer ‘kha’. Therefore, at present, the suit for merely for declaration without any prayer for consequential relief and, therefore, if the prayer ‘kha’ is permitted to be re-inserted by amending the plaint, the respondent would stand severely prejudiced. It is also submitted that if the amendment is allowed, it would change the nature and character of the suit. 12. The learned counsel for the respondent submits that it was a mistake on part of the petitioners to rely on the case of Vannattankandy Ibrayi (supra) because the law was well settled in this regard by the hon'ble Supreme Court of India through the case of T. Lakshmipathi v. P. Nithyananda Reddy, 2003 (5) SCC 150 : (2003) 0 Supreme (SC) 375. Para 23 thereof [quoted from (2003) 0 Supreme (SC) 375], is quoted below: “23. We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of subject-matter of demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord nor by an act of nature but solely by the act of the tenant or the person claiming under him.” 13. Having heard the learned counsel for both sides, this court has perused the materials on record. 14. At the outset, the relevant paragraph 20 of the case of Vannattankandy Ibrayi (supra). The said paragraph appears to be the basis for the prayer for deleting prayer ‘kha’: “19. Having heard the learned counsel for both sides, this court has perused the materials on record. 14. At the outset, the relevant paragraph 20 of the case of Vannattankandy Ibrayi (supra). The said paragraph appears to be the basis for the prayer for deleting prayer ‘kha’: “19. From the aforesaid decisions there is no doubt that if a building is governed by the State Rent Act the tenant cannot daim benefit of the provisions of sections 106, 108 and 114 of the Act. Let us test the arguments of learned counsel for the appellant that on the destruction of the shop the tenant can resist his dispossession on the strength of section 108(B)(e). In this case what was let out to the tenant was a shop for occupation to carry on business. On the destruction of the shop the tenant has ceased to occupy the shop and he was no longer carrying on business therein. A perusal of section 108(B)(e) shows that where a premises has fallen down under the circumstances mentioned therein the destruction of the shop itself does not amount to determination of tenancy under section 111 of the Act. In other words there is no automatic determination of tenancy and it continues to exist. If the tenancy continues, the tenant can only squat on the vacant land but cannot use the shop for carrying on business as it is destroyed and further he cannot construct any shop on the vacant land. Under such circumstances it is tenant who is to suffer as he is unable to enjoy the fruits of the tenancy but he is saddled with the liability to pay monthly rent to the landlord. It is for such a situation the tenant has been given an option under section 108(B)(e) of the Transfer of Property Act to render the lease of the premises as void and avoid the liability to pay monthly rent to the landlord. Section 108(B)(e) cannot be interpreted to mean that the tenant is entitled to squat on the open land in hope that in future if any shop is constructed on the site where the old shop existed he would have right to occupy the newly constructed premises on the strength of original contract of tenancy. The lease of a shop is transfer of the property for its enjoyment. The lease of a shop is transfer of the property for its enjoyment. 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. Thus, when the tenanted shop has been completely destroyed, the tenancy right stands extinguished as the demise must have a subject-matter and if the same is no longer in existence, there is an end of the tenancy and, therefore,: Section 108(B)(e) of the Act has no application in case of premises governed by the State Rent Act when it is completely destroyed by natural calamities.” [copied from (2000) 0 Supreme (SC) 2038]. 15. Now it would be appropriate to quote paragraphs 20, 25, 32 and 33 of the case of Shaha Ratansi Khimji (supra): “20. Section 108 of the T.P. Act explains the rights and liabilities of lessor and lessee and provisions of the said section relevant to the present case, i.e., section 108(B)(e) reads as under: “108. Rights and liabilities of lessor or lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased: (A) Rights and Liabilities of the Lessor. ********* (B) Rights and liabilities of the Lessee …. (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 or 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;” 25. Adverting to one of the situations similar to that, now before us, the Two-Judge Bench of this court in Vannattankandy Ibrayi(supra) observed as under: “20. From the aforesaid decisions there is no doubt that if a building is governed by the State Rent Act the tenant cannot claim benefit of the provisions of sections 106, 108 and 114 of the Act. From the aforesaid decisions there is no doubt that if a building is governed by the State Rent Act the tenant cannot claim benefit of the provisions of sections 106, 108 and 114 of the Act. Let us test the arguments of learned counsel for the appellant that on the destruction of the shop the tenant can resist his dispossession on the strength of section 108(B)(e). In this case what was let out to the tenant was a shop for occupation to carry on business. On the destruction of the shop the tenant has ceased to occupy the shop and he was no longer carrying on business therein. A perusal of section 108(B)(e) shows that where a premises has fallen down under the circumstances mentioned therein, the destruction of the shop itself does not amount to determination of tenancy under section 111 of the Act. In other words there is no automatic determination of tenancy and it continues to exist. If the tenancy continues, the tenant can only squat on the vacant land but cannot use the shop for carrying on business as it is destroyed and further he cannot construct any shop on the vacant land. Under such circumstances it is the tenant who is to suffer as he is unable to enjoy the fruits of the tenancy but he is saddled with the liability to pay monthly rent to the landlord. It is for such a situation the tenant has been given an option under section 108(B)(e) of the Transfer of Property Act to render the lease of the premises as void and avoid the liability to pay monthly rent to the landlord. Section 108(B)(e) cannot be interpreted to mean that the tenant is entitled to squat on the open land in the hope that in future if any shop is constructed on the site where the old shop existed he would have right to occupy the newly-constructed premises on the strength of original contract of tenancy. The lease of a shop is the transfer of the property for its enjoyment. 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. The lease of a shop is the transfer of the property for its enjoyment. 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. Thus, when the tenanted shop has been completely destroyed, the tenancy right stands extinguished as the demise must have a subject-matter and if the same is no longer in existence, there is an end of the tenancy and, therefore, section 108(B)(e) of the Act has no application in case of premises governed by the State Rent Act when it is completely destroyed by natural calamities. 23. In V. Kalpakam Amma (supra) the Kerala High Court relying upon the definition of “building” in the State Rent Act held that there cannot be a building without 4 site and once a structure is put up in the land the site becomes part of the structure and thereafter the site becomes part of the building and on that basis the High Court held that once the premises covered by the State Rent Act is raised to the ground the tenancy continues to survive in respect of the vacant land. In our view this is not the correct interpretation of section 2(1) of the State Rent Act. Section 2(1) uses the words “part of a building or hut”. The words “part of the building” do not refer to the land on which the building is constructed but refer to any other superstructure which is part of that main building, e.g., in addition to the main building if there is any other superstructure in the said premises, i.e., motor garage or servant quarters then the same would be part of the building and not the land on which the building has been so constructed. So far the appurtenant land which is beneficial for the purpose of use of the building is also a part of the building. Thus, according to the definition of “building” in the State Rent Act the building would include any other additional superstructure in the same premises and appurtenant land. We are, therefore, of the view that the interpretation put by the Kerala High Court on section 2(1) for holding that the words “part of a building” mean the land on which the building has been constructed is not correct. We are, therefore, of the view that the interpretation put by the Kerala High Court on section 2(1) for holding that the words “part of a building” mean the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is a self-contained Act and the rights and liabilities of landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit on tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject-matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop, tenancy over the vacant land continued unless the tenant exercises his option under section 108(B)(e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non-existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a superstructure and what is protected by the State Rent Act is the occupation of the tenant in the superstructure. If the argument of the appellant's counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under English law, in a contractual tenancy in respect of building and land the liability to pay the rent by the tenant to the landlord continues even on the destruction of the building whereas there is no liability of the tenant to pay rent to the landlord on the destruction of the premises governed by the State Rent Act. Therefore, the view taken by the Bombay High Court in Hind Rubber Industries (R) Ltd. (supra) does not lay down the correct view of law. This court a number of times has held that any special leave petition dismissed by this court without giving a reason has no binding force on its subsequent decisions. Therefore, the two aforesaid cases relied on by counsel for the appellant are of no assistance to the argument advanced by him. 24. However, the situation would be different where a landlord himself pulls down a building governed by the State Rent Act. In such a situation the provisions contained in section 11 of the State Rent Act would be immediately attracted and the Rent Control Court would be free to pass an appropriate order. 25. Coming to the next question whether the civil court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the superstructure. The subject-matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the superstructure. Thus, when there is no superstructure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a civil court for recovery of possession of land. Thus, when there is no superstructure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a civil court for recovery of possession of land. In view of the matter the civil court was competent to entertain and try the suit filed by the respondent landlord.” “32. It has been further opined that once a tenancy is created in respect of a building standing on the land it is the building and the land which are both components of the subject-matter of demise and the destruction of the building alone does not determine the tenancy when the land which is the site of the building continues to exist. This interpretation, as we find, is in accord with section 108 of the Act. It is reflectible that in Vannattankandy Ibrayi's case, the two-judge Bench observed that the rights stand extinguished as on the distinction of the demise, for there is destruction of the superstructure and in its non-existence there is no subject-matter. Thus, the land has been kept out of the concept of subject-matter. In our considered opinion, the court in the said case failed to appreciate that there are two categories of subject-matters, combined in a singular capsule, which is the essence of provision under the Transfer of Property Act and not restricted to a singular one, that is, the superstructure. In T. Lakshmipathi (supra) the court took note of the fact that the land and superstructure standing on it as a singular component for the purpose of tenancy. It is in tune with the statutory provision. Therefore, we agree with the proposition stated therein to the affect that “in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of the subject-matter of demise and the destruction of the building alone does not determine the tenancy when the land which was the site of the building continues to exist”. On the touchstone of this analysis, we respectfully opine that the decision rendered in Vannattankandy Ibrayi (supra) does not correctly lay down the law and it is, accordingly, overruled. 33. In the present case, it is not in dispute that the respondent purchased the lessor's interest. On the touchstone of this analysis, we respectfully opine that the decision rendered in Vannattankandy Ibrayi (supra) does not correctly lay down the law and it is, accordingly, overruled. 33. In the present case, it is not in dispute that the respondent purchased the lessor's interest. The lease continued even thereafter and did not extinguish. The lease was subsisting when the shares of the land were purchased by the respondent. But the interest of the lessee was not purchased by the respondent. What has been purchased by the respondent is the right and interest of ownership of the property. The interest of the appellant as lessee has not been vested with the respondent. Therefore, we are of the view that the tenancy of the appellant cannot be said to have been determined consequent upon demolition and destruction of the tenanted premises.” 16. Having observed that the petitioners herein had previously withdrawn the prayer ‘kha’ of the plaint on the basis of the ratio of the case of Vannattankandy Ibrayi (supra). Moreover, at that time, the learned counsel for the respondent herein did not place the case of T. Lakshmipathi (supra). Even without considering whether the subsequent decision by a co-ordinate Bench can be considered to be per incurium, it is now seen that the Full Bench decision of the hon'ble Supreme Court of India, rendered in the case of Shaha Ratansi Khimji (supra) has settled the law on the point by specifically over-ruling the case of Vannattankandy Ibrayi (supra), there is no doubt that the present amendment has been necessitated owing to the said Full Bench decision in the case of Shaha Ratansi Khimji(supra). 17. In view of the discussion above, this court is of the opinion that the petitioner has been able to successfully demonstrate that the present amendment has been necessitated owing to the said subsequent development and change in the interpretation of law, arising from overruling of the case of Vannattankandy Ibrayi (supra). Therefore, this is not a case where there is any lack of due diligence on part of the petitioners. 18. Moreover, it is further seen from the impugned order that the learned trial court had recorded that only prayer for was earlier dropped from the original plaint, however, the issues framed were not altered. As per the impugned order the original plaint was filed on 21.4.2010. 18. Moreover, it is further seen from the impugned order that the learned trial court had recorded that only prayer for was earlier dropped from the original plaint, however, the issues framed were not altered. As per the impugned order the original plaint was filed on 21.4.2010. The suit premises were gutted by fire on 21.5.2011. There is no dispute in the bar that the issues were framed on 29.3.2010, and the petition for earlier amendment was filed on 16.7.2012 and after the amendment was allowed the amended plaint was filed on 18.10.2012. Therefore, both the previous and the present amendment had occasioned because of subsequent events. 19. This court is of the view that merely on the ground that the suit is an old pending one, cannot be the sole ground for refusing amendment of the plaint in the present case in hand, as such amendment is found to be necessitated by the subsequent events. In the present case, the subsequent event was the change in the interpretation of the legal right arising out of the ratio of the case of Shaha Ratansi Khimji (supra). Therefore, in the opinion of this court the learned trial court had committed jurisdictional error by referring the “subsequent event” to the fire without appreciating that it was not because of fire that the subsequent petition for amendment of the plaint was moved. This not the case where amendment can be refused on the ground that on an earlier occasion the amendment of plaint was once allowed. In this regard a straight-jacket formulae cannot be laid down and each case for amendment of plaint or written statement, as the case may be, must be evaluated by the court concerned in light of the unique facts of each case on the basis of the applicable law. 20. In view of the discussion above, having found that the impugned order is vitiated by the jurisdictional error, the impugned order dated 27.7.2015 passed by the learned Munsiff No. 1, Lakhimpur, North Lakhimpur, in Misc. (J.) Case No. 5/2015 arising out of T.S. No. 11/2010 is hereby set aside and the prayer for amendment of the plaint vide Misc. (J.) Case No. 5/2015 stands allowed. 21. (J.) Case No. 5/2015 arising out of T.S. No. 11/2010 is hereby set aside and the prayer for amendment of the plaint vide Misc. (J.) Case No. 5/2015 stands allowed. 21. In view of the statement made by the learned counsel for the petitioner before this court that the petitioner-plaintiffs would not bring on record any further pleadings and that there was no requirement from their side for alteration/amendment of any issues already framed in the suit, the learned court below would be at liberty to pass any consequential orders, as may be required, to permit the respondent to file any additional written statement and/or amended written statement, if so advised, in respect of the prayer No. ‘kha’, permitted to be re-inserted in the plaint on amendment being allowed. The learned trial court will, thereafter, proceed with the matter in accordance with law. 22. The revision stands allowed. The parties will bear their own costs. 23. The parties are directed to appear before the learned Court of Munsiff No. 1, Lakhimpur, North Lakhimpur on 24.8.2017 without any further notice for appearance and by producing certified copy of this order, seek further instructions from the said learned court.