Destruction of leased property does not terminate the lease rights as long as the land exists; the doctrine of frustration is not applicable.

JUDGMENT :

DINESH KUMAR SHARMA, J.

1. The present regular second appeal filed under Section 100 CPC read with order XLII CPC challenging the judgment and decree dated 28.02.2015 passed by learned ADJ-13 (Central), Tis Hazari Courts, Delhi in RCA No. 3/2011 titled Shri Jai Prakash Aggarwal vs. Ms. Kiran Chawla & Ors. filed by appellant against the judgment dated 29.01.2011 passed by learned Civil Judge, Delhi in Suit No. 795/08/02.

2. The learned First Appellate Court while hearing the civil appeal challenging the judgment and decree dated 29.01.2011 passed by learned Civil Judge, Delhi in Civil Suit No. 795/08/02 dismissed the appeal and upheld the order of the learned Trial Court. Aggrieved of this the appellant filed the present appeal challenging the impugned order on the ground that the same is against the facts of the case and law applicable on it whereby the learned First Appellate Court failed to appreciate that the lease of the building includes the land on which the building stands and the doctrine of frustration cannot be invoked on destruction or demolition of a building under lease where privity of contract and estate is created. The appellant has also challenged the impugned judgment on the ground that learned First Appellate Court failed to appreciate that there was no termination of tenancy by the Respondent and that the rent was regularly being paid to the Respondent which was duly acknowledged by receipts. Lastly, the Appellant raised the ground that the impugned judgment was not in sync with the judgment of the Apex Court passed in T. Lakshmipathi vs. R. Nithyananda Reddy , (2003) 5 SCC 150 , relied by the learned First Appellate Court.

3. In the Memorandum of Appeal the appellant raised the following substantial question of law:

(i) Whether the judgments of the Courts below is per incuriam and is in ignorance of the Law settled by the Hon'ble Supreme Court in Shaha Ratansi Khimji & Sons Vs. Proposed Kumbhar Sons Hotel P. Ltd. & Ors. in Civil Appeal No. 127 of 2007 decided on 10.07.2014

4. Notice was issued to the respondents. The respondent No.1 was proceeded ex-parte as recorded in order dated 02.09.2015. On 02.09.2015 the Court formed the following question of law:

Whether the judgments of the Courts below are per incuriam and are in ignorance of the law settled by the Hon'ble Supreme Court in Shaha Ratansi Khimji & Sons Vs. Proposed Kumbhar Sons Hotel P. Ltd. & Ors. in Civil Appeal No. 127 of 2007 decided on 10.07.2014.

5. Sh. Alok Kumar, learned senior counsel for the appellant states that the impugned order is liable to be set aside as the same is erroneous as having been passed on the basis of judgment in Vannattankandy Ibrayi (Supra). Learned senior counsel submits that in Shaha Ratansi Khimji & Sons (Supra) the Apex Court relied upon T. Lakshmipati (Supra) and inter alia held that the decision rendered in Vannattankandy Ibrayi (Supra) case does not correctly lay down the law.

6. Brief factual matrix of the case is that the appellant is the tenant of Shop No. 27 in Property No. 5863, Swadeshi Market, Sadar Bazar, Delhi 110008, under Smt. Kiran Chawla and Smt. Sumitra Devi. Learned senior counsel submits that Smt. Kiran Chawla had filed a suit against the appellant for permanent and mandatory injunction bearing CS No. 407/2002 alleging therein that the appellant being the tenant in respect of Shop No. 27 in Property No. 5863, Swadeshi Market, Sadar Bazar, Delhi 110008 along with tenant of Shop No.28 are raising unauthorized constructions. It is an admitted fact that on 31.12.2001 fire occurred in the Sadar Bazar area in which Shop No.27 and 28 bearing Property No. 5863, Swadeshi Market, Sa