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1992 Supreme(Gau) 65
GAUHATI HIGH COURT
D.N.Baruah, J.
Jatin Chandra Paul -Appellant
Versus
Manjurani Paul -Respondent
Civil Revision No. 48 of 1985
Decided On : 27-03-1992
A.Roy, R.P.Sharma, P.N.Choudhary, B.K.Das, J.P.Bhattacharjee
The destruction of a shop house by fire does not automatically determine the tenancy, as the tenancy includes not only the shop house but also the land on which it stands.
Headnote:
LANDLORD AND TENANT - TENANCY - DETERMINATION - DESTRUCTION OF SHOP HOUSE BY FIRE - WHETHER TENANCY AUTOMATICALLY DETERMINED - DOCTRINE OF FRUSTRATION - APPLICABILITY - BONAFIDE REQUIREMENT OF SUIT HOUSE BY LANDLORD - EVIDENCE REQUIRED.
Fact of the Case:
The plaintiff filed a suit for eviction of the defendant from the suit house on the ground of default and bonafide requirement. The trial court dismissed the suit, holding that the defendant was not a defaulter and there was no bonafide requirement of the suit house by the plaintiffs. On appeal, the lower appellate court allowed the appeal and decreed the suit, holding that the plaintiffs had bonafide requirement of the suit house. The defendant filed a revision petition against the appellate judgment.
Finding of the Court:
The High Court held that the destruction of the shop house by fire did not automatically determine the tenancy, as the tenancy included not only the shop house but also the land on which it stood. The Court also held that the lower appellate court erred in finding that the plaintiffs had bonafide requirement of the suit house, as there was no evidence to show that they had the financial capability to start a new business and that they had taken necessary steps for starting a fresh business.
Issues: 1. Whether the destruction of the shop house by fire automatically determined the tenancy? 2. Whether the plaintiffs had bonafide requirement of the suit house?
Ratio Decidendi: 1. The Court held that the destruction of the shop house by fire did not automatically determine the tenancy, as the tenancy included not only the shop house but also the land on which it stood. The Court relied on the following principles: * The meaning of 'building' includes the site of the building which is an integral and inseparable part of it. * Without the site, the structure of the shop room on the land cannot normally exist. * Therefore, when a shop room is let out for occupation, such lease would also normally take the site unless the site is specially excluded from the lease. 2. The Court held that the lower appellate court erred in finding that the plaintiffs had bonafide requirement of the suit house, as there was no evidence to show that they had the financial capability to start a new business and that they had taken necessary steps for starting a fresh business. The Court relied on the following principles: * The expression 'bonafide requirement' contained in section 5(1)(c) of the Assam Urban Areas Rent Control Act, 1972 must be understood with reference to the evidence adduced by the landlord as to the bonafide character of his/their requirement. * Bonafide requirement of the landlord should be genuine and honest conceived in good faith and the Court must also consider it reasonable to gratify that need. * The landlord's desire for possession however, honest it might otherwise be as inevitably a subjective element in it that desire to become a requirement of law must have an objective element of a need.
Final Decision: The High Court allowed the revision petition, set aside the judgment and decree of the lower appellate court, and dismissed the suit.
2. The predcessor-in-intrest of the first to third opposite party Late Kajal Chandra Paul alongwith fourth to seventh opposite party brought a suit in the Court of Sadar Munsiff (Title Suit No. 244 of 1975) against the predecessor-in-interest of the petitioners, Late Jagtish Chandra Paul, praying for a decree for recovery of khas possession of the premises described in the schedule of the plaint by evicting the defendants and also for recovery of rent etc. The defendant Late Kajal Chandra Paul contested the suit; filed written statement. During the pendency of the suit, Jagat Chandra Paul, one of the plaintiffs, as well as Kajal Chandra Paul, the defendant died and the legal representative of the deceased plaintiff Jagat Chandra Paul and defendant Kajal Chandra Paul were brought on the record. The plaintiff filed the suit on the ground that the defendant was a tenant and he became a defaulter. Besides, the plaintiffs also required the suit house for their own use. After recording the evidence of the witnesses on behalf of the plaintiffs and defendant, the Munsiff dismissed the suit holding that the defendant was not a defaulter and also there was no bonaftde requirement of the suit house by the plaintiffs.
3. Against this judgment and decree the plaintiff filed an appeal (Title Appeal No. 127 of 1978) in the Court of the Assistant District Judge. After hearing the parties, ADJ allowed the appeal answering the issue No.5 i.e. bonafide requirement of the suit house by the plaintiff, in favour of the plaintiffs and decreed the suit. The Assistant District Judge, however, rejected the ground of defaulter and answered the issue in favour of the defendants. Hence, the petitioners have filed this present revision petition against the appellate judgment of the Assistant District Judge.
4. This revision petition was admitted on 4.3.85 and was pending for disposal. On 19.12.91 the opposite party filed a petition informing the Court about the subsequent events that had taken place, viz. the suit premises alongwith other houses adjoining to it was completely burn down by fire on the night 15.2.91, and the suit house let out to the defendants (tenants) was completely destroyed and, therefore, the relationship of the landlord and tenant in respect of the demised house came to an end and the tenancy existed between the petitioners and opposite party stood determined by the doctrine of frustration as envisaged under section 56 of the Contract Act and also under section 108 (e) of the Transfer of Property Act (in short the of Act). Therefore, the opposite party prayed for dismissal of the suit without going to the merit of the petition.
5. Against the said petition, the petitioners have not filed any counter, controverting the averments made in the said petition. On the other hand, the counsel for the petitioner has admitted that the suit house was gutted by fire that broke out on 15.2.91 causing material destruction of the house.
6. The questions in this revision petition now require for determination are: First, whether after the destruction of the shop house by fire, the relationship between the landlord and tenant existed hereinbefore came to an end and tenancy automatically determined or not. Secondly, wither the suit premises are required by the platntiff/opposite party for their own, use and occupation?
7. I have heard both sides Mr. B.K. Das learned, counsel for the opposite party has submitted' that the suit was decreed by the trial Court and the said decree was affirmed by the first appellate Court and there being no further appeal, the tenancy was determined by the said decrees. Filing of the present revision will not Change th
