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2005 Supreme(Cal) 177
High Court Of Calcutta
Bhaskar Bhattacharya, Rajendra Nath Sinha
HEILGUS PVT.LTD. - Appellant
Versus
STANDARD CHARTERED BANK - Respondent
F. M. A. T. 1471 Of 2004
Decided On : 03/15/2005
ABHIJIT MITRA, JISHNU CHAUDHURY, N.L.SINGHANIA, RATANKO BANERJEE, S.B.MOOKERJEE, S.N.MUKHERJEE, SAKYA SEN, SOURAV GHOSH, SUNIL SINGHANIA
A tenant's right of tenancy does not extend to the land beneath the building if the tenancy is restricted to the building portion, and the destruction of the building by fire terminates the tenancy.
Headnote:
INJUNCTION - TENANCY - DESTRUCTION OF BUILDING BY FIRE - RIGHT OF TENANCY - AD INTERIM INJUNCTION - TRANSFER OF PROPERTY ACT, 1882, SECTION 52 - SUMMARY SUIT FOR DECLARATION AND INJUNCTION - WHETHER AD INTERIM INJUNCTION SHOULD BE GRANTED DURING THE PENDENCY OF THE INJUNCTION APPLICATION.
Fact of the Case:
Plaintiff, a tenant of a building, filed a suit for declaration and injunction against the defendants, the landlord and a third party, seeking to restrain them from demolishing the building and encumbering the property. The plaintiff's tenancy was restricted to the building portion, and after the building was destroyed by fire, the plaintiff sought an ad interim injunction to prevent the defendants from taking any action regarding the property.
Finding of the Court:
The court held that the plaintiff had not been able to make out a prima facie case on the basis of averments made in the plaint so as to obtain an ad interim order of injunction. The court relied on the decision of the Supreme Court in Vannattankandy Ibrayi vs. Kunhabdulla Hajee, which held that on destruction of the building by fire, the tenancy of the plaintiff cannot survive.
Issues: 1. Whether the plaintiff has a right of tenancy over the land beneath the building after the destruction of the building by fire. 2. Whether the defendants can demolish the building and encumber the property without the plaintiff's consent. 3. Whether an ad interim injunction should be granted during the pendency of the injunction application.
Ratio Decidendi: 1. The court held that the plaintiff's tenancy was restricted to the building portion and did not extend to the land beneath the building. 2. The court held that the defendants could not demolish the building and encumber the property without the plaintiff's consent, but they could take steps to reconstruct the building. 3. The court held that an ad interim injunction should not be granted as the plaintiff had not made out a prima facie case and the ultimate relief claimed in the suit would not become inappropriate if the injunction was not granted.
Final Decision: The appeal was dismissed, and the interim order granted earlier was vacated.
( 1 ) THIS first miscellaneous appeal is at the instance of plaintiff in a suit for declaration and injunction and is directed against Order No. 3 dated 23rd April, 2004 passed by the learned Judge-in-charge, 7th Bench, City Civil Court at Calcutta, in Title Suit No. 461 of 2004 thereby refusing the prayer of ad interim injunction on an application under order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the appellant. By the said order, the learned Trial Judge merely issued notice upon defendants to show-cause why the prayer of the plaintiff for temporary injunction should not be granted.
( 2 ) THE appellant filed in the City Civil Court at Calcutta the aforesaid suit being Title Suit No. 461 of 2004 thereby praying for the following relief: (a) Declaration that the defendants has got no right to deny the right of the plaintiff as a tenant in respect of the tenanted premises and/or in respect of the equivalent space to be constructed in the building at the premises aforesaid; (b) Permanent injunction restraining the defendants from demolition and/ or destruction and/or changing the nature of the building, and/or the tenanted premises; (c) Permanent injunction restraining the defendants from encumbering and/or creating third party interest, alienating and/or parting with the possession of the tenanted premises without leaving or keeping apart the equivalent spaces in the new building to be constructed at the said premises for the plaintiff; (d) Temporary injunction directing the defendants to restore the tenanted premises in the same condition as it was prior to 4th July, 1999 and for the purpose for which the same was let out to the plaintiff and make over to the same within such time as this learned Court may deem fit and proper; (e) Mandatory injunction directing the defendants to provide an alternative and adequate accommodation to the plaintiff at premises no. 4, Netaji Subhas Road, Calcutta till full restoration of the said tenanted premises is made for the plaintiff in terms of prayer (d)above; (f) Receiver be appointed with the direction to take possession of the suit premises and observe that no demolition takes place and to take possession of the space measuring about 6030 square feet after reconstruction of the building and to hand over the same to the plaintiff after the construction is completed; (g) Receiver; (h) Injunction; (i) Cost; (j) Such other and/or further orders.
( 3 ) THE case made out by the plaintiff may be summed up as follows: 1. The defendant No. 1 as landlord had let out various portions of the suit building being premises No. 1, India Exchange Place, Calcutta -700 001 to various tenants. The plaintiff is a tenant of the ground floor of the building of the said premises containing the carpet area of 6030 square feet and also a servant quarter at the rear block of the said building under the defendant No. 1 at the monthly rental of Rs. 3705/ -. 2. On 4th July, 1999 when the tenant and occupier of the said premises were not there, the said premises was gutted by fire rendering the tenanted premises substantially and permanently unfit for human habitation. The said fire was caused due to fault of defendant No. 1, more particularly, by reason of its failure to keep the said premises safe and secure in all respect particularly from all fire hazards. The fire had its devastating effect on the plaintiff as the entire portion of the said premises in occupation of the plaintiff had been damaged resulting in incalculable loss to the plaintiff. 3. After the aforesaid fire, the defendant No. 1 stopped realization of rents in respect of the said premises from plaintiff which the defendant no. 1 used to do by debiting from the current account maintained by plaintiff with the defendant's Bank.
( 4 ) THE plaintiff, therefore, sent a letter dated 6th September, 1999 accompanied by cheque dated 6th September, 1999 for Rs. 7410/- and also by a further letter dated 4th October
