1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the District Court of Solapur dated 28th August, 1992 in Civil Appeal No.224 of 1986 allowing the Appeal preferred by the Respondents/landlords and decreeing the suit for possession with direction to the Petitioners to deliver possession of the suit premises to the Respondents on or before 31st October, 1992.

2. Briefly stated, the Respondents filed Suit being Regular Civil Suit No.412 of 1980 in the Court of Solapur against the predecessor of the Petitioners Shri Ganpati Andappa Mulage, the original tenant-defendant for recovery of rent and possession of the suit property being one shop premises admeasuring 5’ x 9’ situated in Saraf Bazar in Solapur city on the ground of bonafide and reasonable requirement of the Plaintiffs for their personal use and occupation. The said suit however, was dismissed by the Trial Court on the finding that the Plaintiffs failed to establish that the suit premises were required by them for their own use and occupation and that greater hardship would be caused to the Petitioners/tenants, in the event of decree of conviction being passed.

3. As aforesaid, against the said decision, the Respondents/landlords carried the matter in appeal, which however, succeeded and decree of possession has been passed against the Petitioners/tenants in relation to the suit premises. The Appellate Court has reversed the finding recorded by the Trial Court on both the counts for the reasons recorded in the impugned Judgment.

4. Before I proceed to consider the main issue involved in the suit for possession, it would be apposite to deal with the issue which arises on account of subsequent development during the pendency of the present writ petition. It is common ground that on account of riot in the city, the suit premises were completely gutted due to fire on 11th October, 2002. In other words, the suit premises which were let out to the predecessor of the Petitioners are no more in existence. In this context, the preliminary point raised on behalf of the Respondents is that the right of the Petitioners/tenants to pursue the present remedy does not survive and the Petition should be dismissed on that count alone.

5. To buttress this argument, reliance has been placed on the decision of the Apex Court in the case of Vannattankandy Ibrayi v/s. Kunhabdulla Hajee[(2001) 1 Supreme Court Cases 564. My attention is also invited to the another reported decision of our High Court in the case of Shivram Ladu Nitardekar v/s. Alex Fernandes & Ors.[2006(1) Bom.C.R.846] and unreported decision dated 17th December, 2008 in W.P. No.376 of 1994. However, according to the Petitioners/tenants, the fact that the suit premises have been completely destroyed due to fire does not extinguish tenancy as the lease of the suit premises- (which is a shop), was not only lease of the superstructure but also of the site. In such a case, the exposition of the Apex Court in the case of T. Lakshmipathi & ors. v/s. P. Nithyananda Reddy & ors. reported in [(2003) 5 SCC 150 will have to be invoked to hold that the Petitioners’ right to pursue the present remedy would still survive.

6. Before examiningthe above argument we shall advert to the stand of the respective party in the pleading. The Plaintiffs instituted suit for recovery of possession of the suit premises on the assertion that what was let out to the Defendant/tenant was "a shop premises" admeasuring 5’ x 9’ on monthly tenancy basis. In reply the Petitioner/tenant did not claim that the shop premises along with the site beneath the shop premises was also let out to him. Now, it is common ground that the suit premises is fully destroyed due to fire on 11th October, 2002. The Plaintiffs had no role in the said development.

7. Be that as it may, the Petitioners/tenants moved a formal application before this Court being Civil Application No.356 of 2005 praying for lib