Bombay High Court

Smt.Kunda W/O Wasudeorao ... vs Lalit Shivram Agre & Anr on 30 October, 2017

Bench: V.M. Deshpande

                     Judgment

                                                                                                   sa399.02 24

                                                                 1

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR

                                         SECOND APPEAL NO.399 OF 2002

                     Smt. Kunda w/o Wasudeorao Kolhatkar,
                     Aged about 78 years, resident of 741, Bajaj
                     Nagar, Nagpur.                                                       ..... Appellant.

                                                        ::   VERSUS   ::

                     1.  Lalit s/o Shivram Agre, aged about 34
                     years, Occupation business, resident
                     of Zenda Chowk, Dharampeth, Nagpur.

                     2.  M/s. Structwell Constructions, a Partnership
    Deleted as 
   per Court's 
                     Firm, through its Partner Shri Sunil Bedarkar
order Dt.12.4.2010
                     43, Railway Colony Layout, Pratap Nagar,
                     Nagpur.                                                               ..... Respondent.

                     ================================================================
                               Shri Amol Mardikar, Counsel for the appellant.
                               Shri P.N. Kothari, Counsel for the respondent.
                     ================================================================


                                                     CORAM : V.M. DESHPANDE, J.

                                                     DATE    : OCTOBER 30, 2017.

                     ORAL JUDGMENT

1. Heard learned counsel Shri Amol Mardikar for the

appellant and learned counsel Shri P.N. Kothari for the

.....2/-

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sa399.02 24

respondent.

2. The present second appeal was admitted on

17.12.2002 on following substantial question of law:

"Whether the lease of respondent No.1 would continue in the new premises on the same terms and conditions irrespective of the clause in the agreement that the terms and conditions would be agreed upon by the parties on completion of new construction?"

3. The only submission, advanced before this Court

by learned counsel for the appellant, is that in view of

doctrine of frustration, as embodied in Section 56 of the

Indian Contract Act, the impugned judgment and decree

passed by the Lower Appellate Court is required to be set

aside. No other point was pressed into service at the time of

hearing.

4. The present appeal is filed by original defendant

No.1. The respondent/plaintiff's suit i.e. Regular Civil Suit

.....3/-

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sa399.02 24

No.2699 of 1991 was dismissed by learned Judge of the Trial

Court on 15.9.2000. An appeal i.e. Regular Civil Appeal No.995

of 2000 carried against the said judgment and decree was

partly allowed by the Lower Appellate Court vide judgment

and decree dated 4.5.2002. The operative portion of the said

judgment is as under:

"ORDER

Appeal is partly allowed with costs.

It is declared that the plaintiff is the defendant no.1's lessee/tenant.

Defendants are directed to deliver possession of the shop block in the new construction to the plaintiff within three months from the date of this order.

Decree be drawn up accordingly."

Sd/- Y.D. Shinde, 7 th Addl.District Judge, Nagpur.

.....4/-

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sa399.02 24

5. Following are the admitted position on record.

6. Appellant/defendant No.1 is owner of Plot No.741,

situated at Bajaj Nagar, Nagpur on which shop blocks

including suit shop block no.1 was constructed. As per

agreement dated 19.5.1988 (Exhibit 93), shop block no.1 was let

out to respondent/plaintiff on rent of Rs.450/- per month after

accepting Rs.10,000/- from him by way of deposit. As per the

said agreement, tenancy was for a period of 11 months

however, having covenant of its renewal. It is admitted

position that after the expiry of the original period of 11

month, respondent/plaintiff continued his occupation as a

tenant in the suit shop block on payment of rent to

Appellant/defendant No.1 and his occupation and possession

as tenant were never objected by appellant/defendant No.1.

7. Appellant/defendant No.1 was intending to

construct new shop-cum-residential complex on the plot. It

.....5/-

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was found that unless and until blocks are vacated, it will not

be possible to raise new construction. Therefore, another

agreement dated 23.8.1990 (Exhibit 90) was executed in

between the parties by which respondent/plaintiff agreed to

vacate the shop block and subject to some conditions to be

agreed upon by the parties on completion of new construction

work of the building, one shop was to be rented out to the

respondent/plaintiff.

8. With the aforesaid admitted position on record, it

is the contention of the respondent/plaintiff that

appellant/defendant No.1 got plan of new construction

sanctioned from the sanctioning authority namely the Nagpur

Improvement Trust by representing that the shop in

possession of the respondent/plaintiff is an unauthorized one

and the said will be demolished. Such undertaking was given

by appellant/defendant No.1 with the Nagpur Improvement

.....6/-

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Trust. The respondent/plaintiff, therefore, filed a suit with

the following prayers :

"It is, therefore, prayed that it be declared by decree of declaration that the plaintiff is the tenant of defendant no.1 and cannot be evicted from the suit premises without following the due process of law.

b) The defendants be perpetually restrained from disturbing or interfering with the possession of the plaintiff over shop block no.1 in the existing construction on plot no.741, Bajajnagar, Nagpur.

c) The defendants be directed by mandatory injunction to deliver the possession of one shop block in the new construction to the plaintiff.

d) The defendants be further restrained by a prohibitory injunction from delivering possession of one shop block in the new construction to any other person.

e) Costs of this suit be awarded to the plaintiff.

.....7/-

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f) Any other relief, which this Hon'ble Court deems fit in the circumstances of the case, be granted to the plaintiff."

9. The suit was contested by appellant/defendant

No.1. Original defendant No.2, a builder who was joined as

respondent No.2 in this appeal, was deleted as per order dated

12.4.2010.

10. According to learned counsel Shri Amol Mardikar

for the appellant, the respondent/plaintiff failed to adhere

with the conditions in agreement dated 23.8.1990 inasmuch as

the respondent/plaintiff failed to vacate the suit shop block on

his own. Therefore, he is not entitled for the possession in the

new shopping complex.

11. It is admitted that appellant/defendant No.1

allowed respondent/plaintiff to take entry in shop block No.1

as a tenant on payment of monthly rent of Rs.450/-. Not only

that, she accepted Rs.10,000/- towards deposit. It is not the

.....8/-

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case of the landlady that at any point of time

respondent/plaintiff failed to pay the agreed rent. Though

agreement (Exhibit 93) was only for a period of 11 months, it

is the case of both the parties that after initial period of 11

months, respondent/plaintiff/tenant was occupying the

premises as a tenant and was paying rent regularly.

12. From the record it is clear that the shop premises,

which was in occupation with respondent/plaintiff, was

demolished and he was evicted. The respondent/plaintiff was

not evicted from the suit shop block after following due

process of law. On the contrary, on unilateral letter given by

appellant/defendant No.1 with the planning authority, viz. the

Nagpur Improvement Trust, to obtain the building map

sanctioned for proposed shopping complex, it was stated that

the shop block in possession of the respondent/plaintiff was

an unauthorized construction.

.....9/-

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13. Merely because the shop block was demolished by

the Nagpur Improvement Trust, the tenancy of

respondent/plaintiff will not come to an end. Law is well

crystallized on this aspect. In the backdrop of the facts of the

case in hand, I am reminded the law as laid down and the

observation of the Division Bench of this Court in the case of

Krishna Laxman Yadav and ors ..vs.. Narsinghrao Vithalrao

Sonawane and anr, reported at AIR 1973 Bombay 358 and

relevant paragraph No.11 which is reproduced hereinunder:

"Further contention made by Mr. Mhamane was that the petitioners would not be entitled to any specific performance because the premises which were given to the petitioners were destroyed and no new building structure had been put up on the land on which the original house was situated. There is evidence on record showing that the Respondent No.1 himself admitted that on the land in question he had already put up a construction consisting of four rooms. Having regard to the Petitioners' suit he had stopped proceeding to complete the whole

.....10/-

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construction as he had originally intended to do. The plans sanctioned by the Municipal Corporation go to show that he had intended to put up a new building. As already discussed above, the new construction of small room tenements which the first Respondent is about to complete on the land on which the original house was situated must be made available to the Petitioners for occupation as tenants of the first Respondent. The right of occupation is incidental to the contract of tenancy which has continued to exist between the parties. The tenants would be entitled to specific performance of their rights in respect of the construction that will be put up. The Petitioners would be entitled to occupy the tenements, of equal proportion and at about the same place as in the original house. We are unable to accept Mr. Mhamane's submission in connection with the above rights of the Petitioners that the failure of the first Respondent to complete the new construction was good defence. The existence of new construction was unnecessary for granting the relief claimed in the suit."

14. In my view, the shop block, which was leased out

.....11/-

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to the respondent/plaintiff, which was demolished by the

Nagpur Improvement Trust, cannot determine or terminate

the tenancy rights of the respondent/plaintiff ipso facto.

15. Further, agreement dated 23.8.1990 (Exhibit 90)

speaks about giving one shop block in newly constructed

building subject to condition to be agreed upon by both the

parties. The Appellate Court has directed that

appellant/defendant No.1 shall deliver the possession of the