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2015 Supreme(Ori) 250
HIGH COURT OF ORISSA
D.DASH, J.
Sri Baljit Singh & anr. - Appellants
Versus
Sri Kamal Kishore Bhawsinka & ors. – Respondents
R.S.A. No. 529 OF 2014
Decided on : 17.06.2015.
Advocate Appeared:
For Appellants : M/s.. N.K. Sahu, B.Swain, N .Patnaik
For Respondents:Mr. S.P. Misra, Sr. Advocate, M/s.. Soumya M/s.hra, B.S. Panigrahi, R.K. Sahoo, D.Priyanka. E.Agarwal, S.K. Sahoo, Anup Ku. Bose, P:K. Das
Headnote:CIVIL PROCEDURE CODE, 1908 - Sec.1 00 - Indian Contract Act, 1872 - Sec.31 - Suit for eviction of the appellants - Trial Court allowed the principal relief of eviction of defendants nos. 1 & 2 - Appeal dismissed - Second Appeal - Tripartite agreement - Relationship of landlord and tenant between the plaintiff and the defendant nos. 1 & 2 had been intended to cease in future only in the happening of the event Le. coming up of multistoried building wherein the defendant No.3 had promised to sell one shop room to the defendant nos. 1 & 2 on receipt of the balance consideration and upon its occupation by the defendant nos. 1 & 2 - Defendant nos. 1 & 2 had been paying rent to the plaintiff despite of such tripartite agreement and notwithstanding the said tripartite agreement, the tenancy continued as before - Agreement in any way is not an enforceable against the plaintiff - Object projected under the agreement when now no more survive, question of getting the occupation of a shop room by the defendant nos. 1 & 2 on payment of balance consideration as agreed by way of purchase does not arise - Defendant nos. 1 & 2 cannot bank upon the said agreement to thwart the move of their eviction at the hands of plaintiffs-landlord upon termination of their tenancy - Tripartite agreement was in the nature of a contingent contract which was dependant on the project with multistoried building coming up - Unless that contingency was fulfilled the agreement is not capable of specific enforcement as stated in Sec.31 of the Indian Contract Act, 1872 - Appeal dismissed.
The agreement is clear that the defendant no. 3 had undertaken to provide a shop room to the defendant nos. 1 and 2 in the said multistoried building and that was agreed to be purchased by the defendant nos. 1 and 2 for a consideration as agreed of which a part has been paid. Even the said shop room as agreed to be sold was to be from out of the share of defendant no. 3 in the said multistoried building being the developer and not from the share of the owner-landlord who is the plaintiff. So, the multistoried having not come up in pursuance of the agreement and the defendant no. 3 having not gone for execution of the same for its completion which is no mote even possible to come in future, the question of cessation of relationship of landlord and tenant between the plaintiff and the defendant nos. 1 and 2 does not arise and the defendant nos. 1 and 2's possession in any other capacity having separate Characteristics cannot be so said.
Moreover, the plaintiff cannot be held responsible in any way for the failure of the performance of the contract between the defendant nos. 1 and 2 and defendant no. 3 as he had no obligation in the said contract towards defendant nos. 1 and 2 being a party to it as the owner of the property. So, the tripartite agreement Ext. 10, in the facts and circumstances does not have any independent existence and it being dependant on Ext. 6 which stands cancelled not for any other reason but in view of abandonment of the project which is no more possible also toe materialize as such in future, there arises or would arise no such occasion even for the plaintiff to honour Ext. 10. Thus, there arises no question of plaintiff incurring any responsibility or liability under Ext. 10 having no such obligation to be shouldered and performed towards the defendant nos. 1 and 2 under it. Said agreement has thus no enforceability against the plaintiff. The tripartite agreement Ext. 10 can be said to be in the nature of a contract that unless the project comes up with construction of multistoried building, its enforceability so far as the defendant nos. 1 and 2's getting the ship room there by way of purchase as intended would not spring up.
JUDGMENT :
This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Cuttack in R.F.A. No. 143 of 2013 confirming the judgment and decree passed by the learned First Additional Civil Judge (Sr. Division), Cuttack in C.S. No. 486 of 2005. The respondent no. 1 as the plaintiff had filed the suit for eviction of the appellants from the suit premises and for realization of arrear house rent as well as the damages. The suit having been decreed by the trial Court the same has been confirmed by the lower appellate Court.
2. For the sake of convenience, to avoid confusion and in order to bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the suit.
3. The case of the plaintiff is that he being the owner of the suit room, which is part of the Municipal Corporation Holding No. 845 in old Ward No. 15 which is now Ward No. 16 of the Cuttack Municipal Corporation had let out the same to defendant nos. 1 and 2 on payment of monthly rent of Rs. 2100/- The relationship between the plaintiff and the defendant nos. 1 and 2 is that of landlord and tenant. When such was the state of affair, the plaintiff entered into an agreement with defendant no. 3 who is a developer that the defendant no. 3 would construct a multistoried building with provision of shop rooms on the ground floor. Subsequently, the plaintiff, the defendant nos. 1 and 2 and the defendant no. 3 entered into a tripartite agreement with the terms and conditions that defendant nos. 1 and 2 would be provided with a shop room by defendant no. 3 in the proposed multistoried building. The plaintiff claims that he had no role in the said agreement except to accord his consent being the owner of the land in question as well as the landlord of the defendant nos. 1 and 2. It is stated that defendant no.3 without any justification all of a sudden abandoned the project in the midway and, therefore, the plaintiff was constrained to cancel the said agreement and also the power of attorney executed by him in favour of the Managing Director of defendant no. 3. So, it is stated that when the agreement of development got the jolt, the tripartite agreement is rendered infructuous. The plaintiff then terminated the tenancy of the defendant nos. 1 and 2 by a notice under section 106 of the T. P. Act and asked them to vacate the shop room by the end of August, 2005. Since the defendant nos. 1 and 2 did not vacate, the suit came to be filed.
4. The defendant nos. 1 and 2 in their written statement although admitted their relationship with the plaintiff as that of tenant and landlord, gave emphasis upon the tripartite agreement describing in detail about the terms and conditions of the said registered agreement. It is further stated that they are to purchase the shop room in the proposed multistoried building from defendant no.3 and in pursuance to the said promise they had vacated a portion of the tenanted premises as it was agreed and that is in order to facilitate the proposed construction work to be done by the defendant no. 3. It is further stated that they were to pay a sum of Rs. 3,08,000/- as consideration amount to the defendant no.3 for purchase of the new shop room and had already paid a major chunk of it.
It is next stated that though the defendant no. 3 had abandoned the project the registered tripartite agreement dated 23.08.1999 is subsisting and binding on all. Therefore, it is claimed that unless the defendant nos. 1 and 2 shifts to the proposed building as agreed upon, the plaintiff is stopped from evicting them in violation of the terms and conditions of the said agreement. Also, technical objections have been raised as regards the maintainability of the suit on the ground that M/s. Auto Ways (India) a partnership firm being the actual tenant the defendant nos. 1 and 2 have been made parties in their individual capacity they having been sued.
It may stated here that the said plea is not no more pressed into
