Saturday, 23 March 2019

Whether tenant can seek possession of alternate accommodation from small cause court as per his agreement with landlord?

 Reverting back to the facts of the case in hand and considering the law settled by the above referred decisions, as regards the first point for consideration it is to be held that the agreement in question clearly discloses the same to be between the landlord and tenant and the relief which is asked for under the guise of specific performance of the said agreement in the suit filed by the respondent No. 1 is squarely in terms of the rights and obligations of the tenant and landlord under the Rent Act and therefore such a suit in the Civil Court is clearly hit by Section 28 of the Rent Act.

IN THE HIGH COURT OF BOMBAY

Appeal No. 484 of 1998 in Suit No. 297 of 1976

Decided On: 10.08.2007

 Tejbai Tejshi Dedhia  Vs.  Central Bank of India and Ors.

Hon'ble Judges/Coram:
R.M.S. Khandeparkar and Dr. D.Y. Chandrachud, JJ.

Citations: 2007 (109) Bom L R 1799, 2007 (5) MhLj 869


1. This appeal arises from the judgment dated 10th February, 1998 passed by the learned Single Judge in Suit No. 297 of 1976 whereby the suit has been decreed in favour of respondent No. 1 against the appellants herein in terms of prayer Clauses (a), (b), (b)(ii) and (c) with costs. The judgment also requires the premises in occupation of the Court Receiver to be handed over to the Respondent-Bank in pursuance of a decree. The reliefs granted under the said decree include declaration that the Agreement dated 3rd May, 1973 Exhibit 'A' to the plaint to be valid and subsisting, direction to the appellants to hand over possession of the premises mentioned in Clause 6(i) of the said Agreement and to do all such things as may be necessary and to execute all such deeds, writings and papers as may be necessary to effectively carry out the said Agreement and further to pay to the respondent No. 1 Rs. 2,500/- per month from the date of the suit till possession of the premises is handed over to them and further direction to the respondent Nos. 2 and 3 to endeavour to give effect to the said agreement.

2. The appellants are the owners of the plot of land bearing No. 118/122, Kazi Syed Street, Mumbai 400 009. There was a notice issued by the Bombay Municipal Corporation for demolition of the said building on 4th June, 1946. As two of the tenants in occupation of the premises refused to hand over possession thereof, suits came to be filed for their eviction in the Court of Small Causes, Mumbai, under Section 13(1)hhh of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called as "the Rent Act", being R.A.E. Suit No. 53/387 of 1964 and R.A.E. Suit No. 109/755 of 1964. The matter was contested by the tenants upto the Apex Court without any success. On 3rd May, 1973, an agreement came to be executed between the appellants and respondent No. 1 who was one of the tenants whereby respondent No. 1 agreed to vacate the premises in its occupation admeasuring 1200 sq. ft. on the 1st floor of the building and to surrender leasehold rights, and as against this, the appellants agreed to allot on rental basis an area admeasuring 1200 sq.ft. carpet area on the ground floor and 1200 sq.ft. carpet area on the mezzanine floor along with amenities of construction of strong room, bathroom and toilets at their cost in the new building to be constructed at the place of the old building. It was also agreed that newly constructed premises shall be handed over to respondent No. 1 within a period of 1 and 1/2 years, failing which the appellants shall pay compensation of Rs. 2,500/- per month to respondent No. 1 to be calculated from the date of expiry of the period of 1 and 1/2 years till respondent No. 1 is handed over with the possession of new premises as agreed upon under the agreement. Pursuant to the said agreement, respondent No. 1 vacated the old premises and delivered the possession to the appellants and the appellants thereafter demolished the old structure and constructed a new building in its place. On 5th March, 1976, a suit came to be filed by respondent No. 1 against the appellants for specific performance of the agreement dated 3rd May, 1973 and for the claim of Rs. 2,500/- per month from the date of filing of the suit till delivery of possession of new premises. By the impugned judgment, the suit was accordingly decreed. The impugned judgment has been challenged in the present appeal. Pursuant to the order passed at the time of admission, the appellants had deposited a sum of Rs. 6,85,000/- and pursuant to the leave granted by the Court on 5th November, 1998. Respondent No. 1 has withdrawn the said amount by furnishing necessary undertaking. Meanwhile, on 9th March, 1976, in terms of the order dated 8th March, 1976 passed in Notice of Motion No. 271 of 1976, the appellants handed over vacant possession of the new premises to the Court Receiver and since then the premises are under lock and key with the Court Receiver.

3. The learned Single Judge under the impugned judgment held that in the facts and circumstances of the case this Court has jurisdiction to entertain the suit as the same being a suit for specific performance of the agreement between the parties who want to establish the relationship of landlord and tenant on giving effect to the said agreement and that therefore Section 28 of the Rent Act has no application to the case in hand. It was further held that the suit agreement is binding on all the appellants and is enforceable at law, and is not null and void as alleged by the appellants. It was also held that respondent No. 1 vacated the earlier premises in their occupation and allowed the appellants to demolish the same, relying upon promise by the appellants to hand over alternate accommodation to respondent No. 1 in the new building to be constructed by and on behalf of or at the instance of appellants. It was also held that respondent No. 1 is entitled for damages from the date of the suit till the date of payment.

4. The impugned judgment is sought to be challenged on three grounds. Firstly that the impugned judgment is contrary to the decision of Full Bench of this Court in Dattatraya Krishna Jangam v. Jairam Ganesh Gore reported in MANU/MH/0113/1965 : AIR1965Bom177 . Secondly, the learned Single Judge failed to take note of the fact that the premises were in possession of the Court Receiver since 9th March, 1976 and therefore, the question of awarding damages thereafter could not arise. Thirdly, the Court could not have granted specific performance of the agreement dated 3rd May, 1973 as the existing premises cannot be segregated in terms of the agreement between the parties, and in the building in question there does not exist any premises of description which are required to be handed over to the respondent No. 1 under the said agreement. The main point on which the impugned judgment is sought to be challenged is the point of jurisdiction. It is the contention on behalf of the appellants that respondent No. 1 has sought possession of the premises in the capacity of a lessee and therefore, jurisdiction would vest in the Small Causes Court, Mumbai, in terms of Section 41 of the Presidency Small Causes Courts Act, 1882, hereinafter called as "the P.S.C. Courts Act", and the civil Court jurisdiction is barred under Section 28 of the Rent Act. It is his further contention that the new building does not have any premises of the description of the one which was agreed upon under the agreement and therefore it is not possible to comply with the agreement in question. In any case, the possession of the new premises was handed over to the Court Receiver on 9th March, 1976 and since then there has been no attempt on the part of respondent No. 1 to get possession of the said premises and therefore, respondent No. 1 is not entitled for any damages and this aspect has been totally ignored by the trial Court. The learned Counsel appearing for the appellants has sought to rely upon the following decisions on the point of jurisdiction:-(a) Dattatraya Krishna Jangam v. Jairam Ganesh Gore reported in MANU/MH/0113/1965 : AIR1965Bom177 ; (b) Babulal Bhuramal and Anr. v. Nandram Shivram and Ors. reported in MANU/SC/0136/1958 : [1959]1SCR367 ; (c) Krishna Laxman Yadav and Ors. v. Narsinghrao Vithalrao Sonawane and Anr. reported in MANU/MH/0123/1973 : AIR1973Bom358 ; (d) Babubhai Narottamdas Kansara (deceased) through his heirs v. Venilal Dahyabhai reported in 1975 (58) All I R J 49 Gujarat High Court; (e) Narendrakumar Bhogilal Shah v. State reported in MANU/MH/0086/1972 : AIR1972Bom184 ; (f) Simper v. Coombs reported in 1948(1) All ER 306 (King's Bench Division) ; (g) Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai and Ors. reported in MANU/SC/0337/1967 : [1967]3SCR343 ; (h) K. Sreenivasa Rao and Anr. v. K.M. Narasimhiah and Anr. reported in AIR 1972 Mys 90; (i) Hind Rubber Industries Pvt. Ltd. v. Tayebhai Mohammedbhai Bagasarwalla and Ors. reported in MANU/MH/0066/1996 : AIR1996Bom389 ; (j) Vannattankandy Ibrayi v. Kunhabdulla Hajee reported in MANU/SC/0816/2000 : (2001)1 SCC 564; (k) T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors. reported in MANU/SC/0263/2003 : [2003]3SCR173 ; The learned Counsel appearing for the appellants has also sought to rely upon the following decisions on the point of damages:-(a) Velayudhan Sukumaran and Ors. v. Narayana Pillai and Ors. reported in MANU/KE/0067/1967 : AIR 1967 Ker 162; (b) L. Nawal Kishore v. Rameshwar Nath and Ors. reported in MANU/UP/0172/1955 : AIR1955All594 ; (c) A.S.S. Subbaiya Pandaram v. Mahamad Musthapa Maraciyar reported in The Madras Law Journal Reports (Part III) 85;

5. On the other hand, it is the contention on behalf of the respondents that only two questions arise for consideration (i) whether the Civil Court had jurisdiction to entertain the suit in view of Section 28 of the Rent Act, and (ii) whether respondent No. 1 was entitled to damages from 9th March, 1976, that is the day on which the Court Receiver took possession of the suit premises onwards. As regards the point of jurisdiction, it is the contention on behalf of the respondents that the suit is essentially for specific performance of the agreement to lease the new premises and such suit would lie in a court of ordinary civil jurisdiction and not in the Small Causes Court as the relationship of landlord-tenant in respect of a new premises is yet to come in existence, and therefore, Section 28 of the Rent Act would not be attracted. It is his contention that the agreement in question discloses that it is an agreement to create leasehold rights and there is no landlord-tenant relationship subsisting between the parties as on today but it would continue only upon the delivery of possession of the premises in question to the respondent No. 1. The reliance is sought to be placed in the following decisions on behalf of the respondent No. 1:-(i) Raghubir Narayan Lotlikar v. G.A. Fernandes reported in MANU/MH/0067/1953 : AIR1953Bom76 (D.B.); (ii) Chunnilal Radheyshyam & Sons v. Amin Manilal & Co. Pvt. Ltd. and Ors. reported in 1982(1) Bom.C.R. 35; (iii) Vikrant Engineers and Ors. v. Shridhar Bhaskar Paranjape and Anr. reported in MANU/MH/0479/1998 : (1998)2BOMLR140 ; and (iv) Chandrakant Shankar Pradhan v. Verma Investment Corporation, Bombay and Ors. reported in MANU/MH/0046/1992 : AIR1992Bom257 . As far as the judgments cited on behalf of the appellants are concerned, it is sought to be contended on behalf of the respondents that they do not relate to the suit for specific performance of the agreement to lease. As regards the question of damages is concerned, it is the contention on behalf of the respondents that the agreement clearly provides for payment of such damages till the possession is handed over to the respondent No. 1, and till this day possession has not been handed over to the respondent No. 1. The appointment of Court Receiver was merely to safeguard the suit property and it does not absolve the appellants from their obligation under the agreement between the parties.

6. Upon hearing the learned advocates for the parties and on perusal of the records, three points arise for consideration:

(i) Whether the Civil Court had jurisdiction to entertain the suit and to order the induction of the respondent No. 1 in the suit premises as the tenant thereof in view of the provisions of law comprised under Section 28 of the Rent Act ? As a prelude to this question, it is necessary to ascertain whether the agreement in question is between the strangers to create relationship of landlord and tenant between themselves in relation of the premises or it discloses continuation of existing relationship of landlord and tenant between the parties in respect of new premises to be constructed on demolition of old premises ?

(ii) Whether the respondent No. 1 is entitled to claim damages from 9th March, 1976 the day on which the Court Receiver had taken possession of the suit premises onwards ? and

(iii) Whether in the facts and circumstances of the case no premises of the description agreed upon under the said agreement are available in the newly constructed building and that therefore the said agreement stands frustrated ?

7. As regards the first point for consideration, on glance through the plaint, it may appear to be a suit for specific performance of an agreement to create leasehold right in the newly constructed building, such an agreement having been entered into between the parties prior to commencement of the construction of the new building. However, proper reading of the said plaint along with the said agreement Exhibit-A to the plaint, it would disclose that the agreement was undoubtedly executed between the landlord and tenant, the appellants being the landlords and the respondent No. 1 being the tenant. Recital portion of the agreement discloses that the bank i.e. respondent No. 1 is a monthly tenant of the landlords and as such is in occupation and possession of the premises admeasuring 1200 sq. ft. on the first floor of the existing building standing in the property and the respondent No. 1 is paying to the landlords monthly rent of Rs. 258.92 ps. It discloses that it has been agreed between the landlords and the respondent No. 1 that in order to enable the landlords to demolish the existing structure and to construct a new building in the property, certain arrangements and agreements are arrived at between the parties with regard to obtaining of vacant possession of the existing premises in occupation of the respondent No. 1 and to provide it with a permanent accommodation in the new building to be constructed by the landlords in the said property, and that therefore, the parties are desirous of recording terms and conditions of such agreement and consequently the agreement has been executed. The Clause (iv) of the recital portion of the said agreement reads thus:

(iv) It has been agreed between the Landlords and the Bank that in order to enable the Landlords to demolish the said building and to construct new building on the said property certain arrangements and agreements have been arrived at between the Landlords and the Bank with regard to obtaining of vacant possession of the existing premises in occupation of the Bank and to provide to the Bank permanent accommodation in the new building to be constructed by the Landlords on the said property.
8. In terms of the said agreement, the respondent No. 1 agreed to vacate the premises in its occupation immediately on signing of the agreement and to hand over vacant peaceful possession thereof to the landlords to enable the landlords to demolish the said building and to construct a new building in its place. Meanwhile, the respondent No. 1 was required to find out some temporary accommodation in some other premises in any other building at its own cost. The landlords further agreed that they would construct the building consisting of basement, ground floor, mezzanine floor, and five upper floors as may be permitted by the Bombay Municipal Corporation. It was further agreed that the landlords shall, within 1 and 1/2 years from the date of respondent No. 1 handing over to the landlords vacant possession of the premises in the existing building, duly complete and construct, as sanctioned by Bombay Municipal Corporation, a new building, in all respect thereto fit for occupation and within the said period of 1 and 1/2 years shall obtain at its own cost from the Bombay Municipal Corporation the occupancy certificate in respect of the said new premises. The landlords agreed and undertook to provide to the respondent No. 1-bank the premises in the new building on the terms specified in the agreement and they include as under:

(ii) The landlords shall also construct and provide at their own costs and expenses to the bank a strong room admeasuring about 500 square feet within the said ground floor portion to be allotted to the Bank as per the Bank's specifications. The Bank will however provide at its own cost strong room doors with grill gate and air ventilators to complete strong room construction. The landlords shall also construct and provide to the bank at their own cost and expenses bathrooms and toilets in the said premises as per Bank's requirements.

(iii) It has been agreed by and between the parties that the bank shall upon being put in possession of the demised premises in the new building pay to the landlords monthly rent at the rate of Rs. 1.75/-per square feet in respect of the ground floor area and at the rate of Rs. 1/- per square feet in respect of mezzanine floor area.

(iv) Provided however and it is hereby agreed by and between the parties hereto that is the event of the landlord committing default in handing over to the bank the aforesaid area in the new building within the aforesaid period of 1 and 1/2 years, the landlords shall be liable to pay to the bank damage at the rate of Rs. 2,500/-(Rupees Two Thousand Five Hundred) per month to be calculated from the date next following the expiry of the said period of 1 and 1/2 years upto the date the landlords shall offer to handover to the bank vacant possession of the said area on the ground floor and the mezzanine floor in the new building.

The agreement also includes usual terms like the liability to pay all other taxes, etc. by the landlords as well as that the landlords to maintain the property, etc.

9. Plain reading of the agreement in question, therefore, would disclose that it is undoubtedly an agreement between the landlords and the tenant not only to the extent it refers to the agreement to deliver vacant possession in occupation of the tenant, but it also discloses that the agreement by the appellants as the landlords of the respondent No. 1 to construct a new building in place of old building and to allot to the respondent No. 1 as the tenant in such newly constructed building an area of 1200 sq.ft. on the ground floor and an area of 1200 sq.ft. on the mezzanine floor in the new building and in addition to provide strong room admeasuring 500 sq.ft. within the said ground floor portion and that the premises so to be demise were to carry rent at the rate of Rs. 1.75/ per sq. ft. in respect of the ground floor and Rs. 1/-per sq.ft. in respect of mezzanine floor. At the same time, the appellants also agreed to pay damages at the rate of Rs. 2,500/- per month in case the appellants fail to allot the new premises within 1 and 1/2 years from the date of delivery of the premises in the old building.

10. Undoubtedly, the Rent Act provides specific procedure to ensure delivery of possession of a new premises in case the tenant has to vacate the old premises for the purpose of construction of a new building in place of the old building in occupation of such tenant and such procedure being complied with, the delivery of possession of the premises in the new building is assured to the tenant under the statutory provisions under the Rent Act. It cannot be disputed that the agreement is not strictly in terms of the said procedure. Nevertheless, the agreement is essentially between the landlord and the tenant within the meaning of the said expression under the Rent Act. As already seen above, Clause (ii) of the recital portion of the agreement specifically describes the respondent No. 1 as the tenant of the appellants who are the landlords and the respondent No. 1 being in occupation of the premises in the capacity as the tenant. Further the Clause (iv) clearly provides that in order to enable the landlords to demolish the building and to construct a new building, certain arrangement and agreement had been arrived at between the landlords and the respondent No. 1, the latter being admittedly the tenant of the appellants in relation to the existing premises which are to be vacated to get the new premises in place of old one. Apparently, such arrangement or agreement is to enable the appellants who are the landlords to obtain the vacant possession of the existing premises in occupation of the respondent No. 1 in its capacity as the tenant thereof and to provide to the respondent No. 1 as a tenant a permanent accommodation in the new building to be constructed by the landlords in the said property. In other words, the agreement is essentially between the landlords and the tenant in relation to the delivery of possession of old premises to the landlord to enable him to construct a new premises in its place and further to deliver possession of a new premises to the tenant, which is essentially in terms with the provisions of law comprised under Section 13(1)(hh) read with Section 3A of the Rent Act.

11. The agreement apparently discloses admission on the part of both the parties thereto that they are landlords and tenant and the agreement has been entered into between the parties on those capacities by them. The agreement nowhere discloses that the relationship of the landlords and tenant between the parties had come to an end at any point of time. On the contrary, the agreement was executed in the facts and circumstances of the case which reveal that the respondent No. 1 had refused to vacate the old premises inspite of the order from the Bombay Municipal Corporation to demolish the old building. There was litigation between the parties without any success to the respondent No. 1 and only thereafter the present agreement came to be executed. In other words, the respondent No. 1 having failed to resist the claim of the appellants to vacate the premises in order to enable the appellants to construct new building thereupon, the respondents were left with no alternative than to execute the agreement in question. However, while executing the agreement, the bank did not surrender its tenancy right. It vacated the premises while reserving its right to occupy the premises in the new building.

12. Perhaps, it would have been a different thing if the agreement had to disclose that the respondent No. 1 had surrendered its leasehold rights, and independently as a proposed new tenant, the respondent No. 1 has entered into an agreement with the appellants to hire premises in the building to be constructed in the property in place of the old demolished building. The agreement nowhere discloses any such intention or conduct on the part of the parties. On the contrary the agreement essentially discloses continuation of landlord-tenant relationship between the parties. The agreement refers to the existing relationship of the landlord-tenant in relation to the existing premises and further continuation of such relationship in relation to the premises in the new building to be constructed on demolition of the old building. The clause regarding payment of rent nowhere discloses that the same would amount to an independent agreement of lease in relation to the premises to be allotted, unconnected to the existing landlord-tenant relationship between the parties.

13. All decisions which are sought to be relied upon on behalf of the respondents are undoubtedly in relation to the suit for specific performance of an agreement. Equally it is true that a person seeking specific performance of an agreement to lease can initiate action in the civil court, as such a suit would be for specific performance of an agreement simplicitor. However, when the parties to such an agreement undisputedly disclose a clear admission on their part about existence of landlord-tenant relationship in respect of the premises which are sought to be vacated in terms of the agreement in that regard, and further disclose an intention to continue the said relationship even in respect of a new premises in the new building on completion of construction thereof in place of the old building to be demolished, it cannot be said that such an action would be merely for a specific performance of the agreement; it would be essentially an action for specific performance of the agreement for continuation of the existing leasehold rights.

14. A tenant surrendering its leasehold right and thereafter entering into an agreement for lease in respect of a new premises without disclosing or referring to any existing landlord-tenant relationship, would certainly be a matter for specific performance of an agreement for lease of new premises and it would not be a case of continuation of existing leasehold right. However, that is not the case in the matter in hand for the reasons stated above.

15. Section 28(1) of the Rent Act reads thus: "28(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,

(a) in Greater Bombay, the Court of Small Causes, Bombay,

(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge in the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply [or between a licensor and a licensee relating to the recovery of the licence fee or charge ] and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and [subject to the provisions of Sub-section (2),] no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question.

16. The Full Bench in Dattatraya Krishna Jangam's case (supra) had clearly held that Section 28 of the Rent Act confers jurisdiction upon the special Court not only to decide questions referred to in the section, but also all matters which are incidental or ancillary to the determination of those questions and the said observation was made by relying upon the decision of the Apex Court in Meheresingh Sethi v. Khurshed Satarawalla reported in MANU/MH/0184/1954 : (1954)56BOMLR540 and Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewalla reported in MANU/SC/0071/1952 : [1953]4SCR226 . It was further held that:

It has been contended that in a suit on contract the tenant claims his rights under the contract. He does not claim any rights under the Act. No claim or question, therefore, arises under the Act or any of its provisions. The suit is under the general law and will consequently be outside the purview of Section 28. We have given our anxious consideration to these arguments, but we do not think that we can uphold them.
It was further held that:

Section 28 refers to any suit or proceeding between a landlord and a tenant relating to recovery of possession of any premises to which any of the provisions of Part II apply. These words are wide enough to include every suit between a landlord and a tenant, whether the tenancy is contractual or is continued by reason of the provisions of the Act, provided the relief asked for relates to possession. There is nothing in this section or in any other section of the Rent Act which would justify cutting down the scope of Section 28 or holding that suits on contract were intended to be excluded from the purview of this section. The arguments advanced virtually amount to saying that a tenant holding the premises on a contract as contradistinguished from a tenant holding the premises by reason of the provisions of the Act would be entitled to the benefits under the Act, but would enforce his rights not in a Court of exclusive jurisdiction provided by the Act but in the ordinary Court. There is no reasonable ground for giving such an interpretation to the section. It is not in dispute that in cases of contractual tenancies a landlord will not be able to recover rent in a Court other than the special Court. There is no reason to hold that even though that may be the case, suits relating to recovery of premises alleged to be held on contractual tenancies would lie in Courts other than special Courts. A suit on a contract will, therefore, also attract the provisions of Section 28. Being a suit under Section 29 it will be a suit under the Act and will have to be disposed of in conformity with the provisions of the Act.
Referring to the contention that in a suit on contract, no relief is claimed under the Rent Act, it was observed by the Full Bench of this Court that:

...On a proper interpretation of the provisions of Section 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted, but also a suit in which it is claimed that the relationship of a landlord and tenant within the meaning of the Act subsists between the parties. The Courts which have jurisdiction to entertain and try such a suit are the Courts specified in Section 28 and no other.

A tenant or a sub-tenant who claims his rights under the contract with his landlord is also a tenant within the meaning of the Act. His landlord is also a landlord within the meaning of the Act. The dispute between them in regard to possession must also be decided in conformity with the provisions of the Act. Even in a suit brought by a tenant on the basis of his contract, the matters which will be directly and substantially in issue will be: (1) whether the plaintiff is a tenant and whether the suit is between a tenant and the landlord as alleged, and (2) whether the plaintiff is entitled to relief in regard to possession. These will be the principal issues which the special Court will have to adjudicate upon. It will have to decide these issues directly and not incidentally. Consequently these issues cannot be the subject matter of a fresh suit under Section 29A.

Lastly it was ruled by the Full Bench of this Court that:

In our opinion, therefore, assuming that a claim to a tenancy or a sub tenancy can be regarded as a question of title, the title in respect of which a suit will lie under Section 29A must be a title de hors the Act, i.e. a title other than a title of a landlord, tenant or sub-tenant, whether such title is acquired or is alleged to have been acquired under a contract or under the provisions of the Act. If, therefore, in a suit or a proceeding under Section 28 a person's claim relating to possession on the basis of his being a tenant or a sub-tenant has been negatived, he cannot file a suit under Section 29A to again try and establish his rights as a tenant or a sub-tenant, as the case may be.
17. In Babubhai Narottamdas Kansara's case (supra), it was held that:

...even though the suit is for specific performance of an agreement to lease and even though actual relationship of landlord and tenant is not existing between the parties in presenti, the suit will still be covered by Section 28 of the Act.
It was a case wherein the agreement between the parties was to let the property after fixation of the standard rent. The question of fixation of standard rent is obviously within the domain of the jurisdiction of the Small Causes Court. Though the decision is not directly on the point in issue, it would reveal that the issue of jurisdiction in terms of Section 28 of the Rent Act is to be decided bearing in mind the existence of relationship of the landlord and tenant between the parties revealed from the agreement based on which the claim for possession of the premises on rent is made.

18. In Babulal Bhuramal's case (supra), the Apex Court held that where the plaint in the suit admits that the defendants were landlords of the premises at various stages and the plaintiffs were their tenants, the suit is essentially a suit between a landlord and a tenant and that the suit does not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs.

19. In Krishna Laxman Yadav's case (supra), it was held by the Division Bench of this Court that Section 28 of the Rent Act makes a Court of Small Causes, a Court of exclusive jurisdiction in respect of suits and proceedings between a landlord and a tenant relating to the recovery of possession of any premises to which the provisions of Part II of the Rent Act are applicable. It was further held that once it is established that the contract to lease between the parties in relation to the premises which were let out to the tenant was never put to an end, it is but obvious that whenever landlord puts up a new construction in place of old construction, the tenancy having not come to an end, the tenant has every right to claim tenancy in respect of newly constructed premises in place of old one, and such a suit would lie in the Court of Small Causes.

20. In Hiralal Vallabhram's case (supra), the Apex Court was dealing with the subject of jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. In Narendrakumar Bhogilal Shah's case (supra), the learned Single Judge of this Court was dealing with the matter of construction of Section 18 of the Rent Act. The King's Bench Division in Simper's case (supra) was dealing with the point as to whether the destruction of the premises would put to an end to the tenancy of the land under the provisions of the Landlord and Tenant (War Damage) (Amendment) Act, 1941, and further on erection of a new house, whether the tenant would be entitled for possession of a new house. None of these decisions are on the point in issue in the matter in hand.

21. The decision in Vannattankandy Ibrayi's case (supra) is in relation to the matter arising under Kerala Rent Act wherein the issue was whether the tenant without consent or permission of the landlord can put up a new construction on the site where the old structure was destroyed, and it was held that Section 11 of the Kerala Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the superstructure, and even when there is no superstructure in existence, the landlord cannot claim recovery of possession of vacant site under the Kerala Rent Act.

22. In T.Lakshmipathi's case (supra), the Apex Court had clearly held that the tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolition of the tenanted premises by the successors of tenant. It was further held that the doctrine of frustration belongs to the realm of law of contracts and it does not apply to a transaction where not only a privity of contract but a privity of estate has also been created inasmuch as that a lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer of Property Act read with Section 105, which defines a lease of immovable property as a transfer of a right to enjoy such property. It was also held 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 and more so the building has been destroyed or demolished neither by the landlord or by an act of nature but solely by the act of the tenant or the person claiming under him.

23. In K.Sreenivasa Rao's case (supra), the learned Single Judge of Mysore High Court had held that once it is clear that the intention of the tenants in handing over possession of the tenanted premises to the landlord was with a view to enable the landlord to demolish and reconstruct the premises leased to them reserving their rights of re-entry under the Rent Act, and even though the landlord was not a consenting party to the conditions laid down, by the mere fact of surrender of possession, the tenants did not surrender their tenancies.

24. In Hind Rubber Industries Pvt. Ltd.'s case (supra), it was held that in terms of Section 108(e) of the Transfer of Property Act, the lessee's rights do not come to an end with destruction of the premises by fire and he has got the right to occupy the structure as may be constructed by the landlord in place of the destroyed structure.

25. In Raghubir Narayan Lotlikar's case (supra), it was held that Section 28 of the Rent Act applies only to those suits between the landlord and the tenant where a landlord has become entitled for possession or recovery of the premises demised. Under the Transfer of Property Act, a landlord becomes entitled to possession when there is a determination of tenancy. As in that case, it was found that the suit was found to be one for specific performance of an agreement, and therefore, in that context, it was held that even though the result of granting the decree would have entitled the landlord to obtain the possession of the premises, the suit was not hit by Section 28 of the Rent Act.

26. In M/s.Chunilal Radheshyam's case (supra), it was the contention that as a result of the decree passed in the earlier suit, the plaintiffs had become entitled to get from the defendants certain area in the new building constructed at the place where originally another building was standing and that the cause of action had arisen for filing a suit as the defendants had not given them possession of the area in the new building which was equivalent to the area which was occupied by them in the old building. It was also the grievance of the plaintiffs that the area, possession of which had been given to them, was not according to the map of the new area agreed upon between the parties. The suit related to the deficit area and the relief prayed was for possession of the same. It was in those facts and circumstances of the case while dealing with the issue of jurisdiction, it was held that if the agreement is to create leasehold right, then the jurisdiction will not be in Civil Court but if there is an agreement which creates right of leasehold then the situation could be different.

27. Vikrant Engineers' case (supra) was a case wherein the suit was filed by the plaintiffs claiming therein that the defendants who are the owners of the plot of land did not have enough fund to raise construction therein, and therefore, they had approached the plaintiffs and under the agreement between the parties, the plaintiffs had advanced certain amount to the defendants and the defendants had agreed to construct a building suitable for a factory and to lease the same to the plaintiffs. It was not the case between the landlord and tenant wherein the tenant agrees to deliver possession of the old premises in order to enable the landlord to construct a new premises to be given to the tenant on rent.

28. In Chandrakant Shankar Pradhan's case (supra), it was a suit by the builder who had purchased the property from the original landlord while agreeing with the occupants of the building to allot accommodation to them in the new building on ownership basis after demolition of the old building and construction of a new building, and in those circumstances it was held that it was purely a case for specific performance of an agreement between the parties who are not the landlord and the tenant, and therefore, Section 28 of the Rent Act had no application.

29. Reverting back to the facts of the case in hand and considering the law settled by the above referred decisions, as regards the first point for consideration it is to be held that the agreement in question clearly discloses the same to be between the landlord and tenant and the relief which is asked for under the guise of specific performance of the said agreement in the suit filed by the respondent No. 1 is squarely in terms of the rights and obligations of the tenant and landlord under the Rent Act and therefore such a suit in the Civil Court is clearly hit by Section 28 of the Rent Act.

30. As regards the second point for consideration which relates to the claim for damages, it is the contention on behalf of the appellants that the possession of the premises having handed over to the Court Receiver on 9th March, 1976 and since then the possession is with the Court Receiver and no efforts having been made by the respondent No. 1 to get the possession from the Court Receiver since then, the learned Single Judge could not have decreed the suit in relation to the damages with effect from 9th March, 1976. On the other hand, it is the contention on behalf of the respondent No. 1 that no such point was urged before the learned Single Judge and the same cannot be argued in appeal. It is the further contention on behalf of the respondent No. 1 that in terms of the Clause 6(iv) of the agreement, the appellants are liable to pay the sum of Rs. 2,500/- per month till the date of handing over possession to the respondent No. 1 and since the possession has not been handed over to the respondent No. 1, the appellants cannot absolve themselves of the liability to pay damages. The appointment of the Court Receiver was merely to safeguard and protect the suit property and it does not in any manner mitigate the obligations of the appellants to hand over possession of the premises to the respondent No. 1.

31. We having already held that the Civil Court's jurisdiction to entertain the suit for restoration of possession is barred in terms of Section 28 of the Rent Act, the point would then arise whether the suit merely in relation to the claim of damages would survive before the Civil Court. Undisputedly, the claim for damages is based on the Clause 6(iv) of the agreement between the parties. We have already held that the agreement is essentially between the landlord and tenant. We have also held that the suit as filed is barred in terms of Section 28 of the Rent Act. Obviously, therefore, the question of claiming damages independently of giving effect to the agreement between the parties does not arise. It is only upon the agreement being given effect to, the question of damages on account of delay in giving effect to the agreement would arise. However, this point has not been raised by either of the parties, nor any arguments in that regard have been advanced. The arguments which are advanced in the matter are summarised as above. Consequently we will have to deal with the point.

32. Even assuming that the point which is sought to be raised in this appeal was not urged before the learned Single Judge that itself will not disentitle the appellants from raising the said point. Once the factual matrix pleaded is already established or is not in dispute and the point is raised merely on the basis of undisputed factual matrix, the question of disentitling the appellants from raising such point does not arise. Failure to urge the said point before the learned Single Judge will not disentitle the appellants from raising the said point in appeal.

33. It is not in dispute that the possession of the premises was handed over to the Court Receiver on 9th March, 1976. It is also a matter of record that the respondent No. 1 at no point of time had made any effort to get the possession of the premises from the Court Receiver. In other words, the appellants are not in possession of the premises since 9th March, 1976 and at no point of time after filing the suit there was an attempt made by the respondent No. 1 to get the possession of the premises. The suit was filed on 5th March, 1976. Once it is established that the appellants were already divested of the possession of the suit premises, the respondent No. 1 could not have expected the appellants to deliver possession of the premises to the respondent No. 1 after 9th March, 1976, and it was for the respondent No. 1 itself to move necessary application to obtain possession of the premises from the Court Receiver. There is no explanation forthcoming from the respondent No. 1 as to what prevented it from moving the court to take possession of the premises from the Court Receiver. In the circumstances, the respondent No. 1 would not be entitled to take advantage of its own failure to take appropriate steps in the matter to get the possession of the premises from the Court Receiver. Its own failure cannot be allowed to be made a cause of action for damages against the appellants. The suit having been filed on 5th March, 1976 and the possession of the suit premises having been delivered to the Court Receiver on 9th March, 1976, the appellants would be liable to pay damages in terms of the said agreement from the date of expiry of 1 and 1/2 years to be counted from the date of delivery of the possession of old premises by the respondent No. 1 to the appellants till 8th March, 1976.

34. In Velayudhan Sukumaran's case (supra), the Kerala High Court has held that the possession of Receiver must be taken to be the possession of the party ultimately successful before the Civil Court. The said ruling was delivered by Kerala High Court while dealing with the case wherein the lower Court had considered that the successful party is the party who had succeeded before the criminal court in obtaining an order that he was in possession at the time when dispute which prompted for necessary action in terms of Section 145 of the Code of Criminal Procedure had commenced. It was held that the successful party is not the one who succeeds before the criminal court but he is the one who succeeds ultimately before the civil court. The decision was in totally different set of facts and the question which arose for consideration was totally foreign to the issue in the matter in hand.

35. In Subhaiya Pandaram's case (supra), the Madras High Court had ruled that the possession of the Court through a Receiver can only be on behalf of the party finally held by the Court to be entitled to the properties in dispute. Those were the observations in a suit for possession of the property as being lawfully entitled thereto on the basis of possessory title. It has nothing to do with the matter relating to claim for possession by tenant.

36. In L. Nawal Kishore's case (supra), it was a case wherein the property was attached in the insolvency proceedings at the instance of the applicant and it remained locked up as the Receiver could not let out a major portion of it to anyone in spite of his efforts in that direction, and in those circumstances it was held that the damage caused to the building was the direct consequence of the attachment and as it was locked up by the applicant, and therefore, he alone was responsible for damages.

37. All these three decisions which are sought to be relied upon on behalf of the appellants are on totally different issue, not relevant for the matter in hand.

38. For the reasons stated above, therefore, the second point for consideration is to be answered in negative with the rider that the claim for damages can be restricted to the period prior to 9th March, 1976 from the day on which the period of 1 and 1/2 years had expired from the date of delivery of vacant possession of the old premises by the respondent No. 1 to the appellants. But, the entitlement therefore would depend upon the enforceability of the said agreement which is in the exclusive jurisdiction of the Small Causes Court under Section 28 of the Rent Act.

39. As regards the third point for consideration, once we hold that the civil court had no jurisdiction to entertain the suit in the facts and circumstances of the case, the said point also does not fall for consideration by the civil court and it would be entirely within the domain of the Court of Small Causes to deal with such issue in case the suit is filed in that Court for giving effect to the agreement in question between the parties. The point therefore is answered accordingly.

40. For the reasons stated above, therefore, the appeal succeeds. The impugned judgment and decree is hereby set aside and the suit is dismissed as not maintainable on account of lack of jurisdiction in view of Section 28 of the Rent Act. In view of dismissal of the suit, the appointment of Receiver in relation to the premises in question stands vacated.

41. There shall be no order as to costs.


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