The destruction of a leased property by an irresistible force does not automatically terminate the lease, but the lessee has the option to avoid the lease.

YASHODA NANDAN, J. :- When this second appeal came up for hearing before a learned single Judge, he felt disinclined to agree with the views of this Court expressed in Dr. Kundan Lal v. Shamshad Ahmad (1964 All LJ 1120) : (AIR 1966 All 225) and Rahim Bux v. Mohammad Shafi (AIR 1971 All 16) and consequently referred the following two questions for consideration by a large Bench:

"1. Whether on the facts and the circumstances of the case doctrine of frustration as contained in S. 56 of the Contract Act will apply and whether the tenancy was automatically terminated after the building had fallen down?

2. Whether on the facts and circumstances of the case relationship of landlord and tenant subsists even with regard to newly constructed shops and the plaintiffs can claim possession of the same?" That is how this appeal which should have been decided by a learned single Judge happens to be before this Bench.

2. The material facts giving rise to this appeal are that admittedly Radhey Kishan alias Chillar, the predecessor-in-interest of the appellants before us, was the tenant of a shop constructed of mud-walls and Khaprail roofing situate in the town of Azamgarh since 30 years or more before the institution of the suit giving rise to this appeal. The shop was in a state of complete disrepair and consequently the Khaprail roof as also some of the walls fell down. Radhey Kishun consequently on the 10th Oct., 1960 applied under S. 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, in the court of the learned Munsif City, Azamgarh. On the 18th March, 1961, the learned Munsif inspected the shop that was in the tenancy of Radhey Kishun in the presence of the parties and their counsel. On the 22nd Mar., 1961, he recorded an Inspection Note, the material part of which was to the following effect:

"It was found that the entire accommodation has fallen down and the first sight view of the Commissioner was correct. On two sides there were no independent walls but the other two walls north and west had fallen down and another wall in the accommodation was for a few cubits standing in a dilapidated condition and thus practically the accommodation has to be reconstructed and more than major repairs were needed meaning that the accommodation has substantially fallen down."

As a consequence of the inspection made by him, the learned Munsif dismissed the application under S. 7-E of U. P. Act No. 3 of 1947 on the 22nd Mar., 1961 itself. An application under S. 151 of the Code of Civil Procedure was also rejected by the learned Munsif. Radhey Kishan consequently on the 20th Sept., 1961 instituted the suit giving rise to this appeal alleging that the respondent in his capacity as Mutawalli of a Masjid was the landlord of the shop of which he was the tenant on a monthly rent of Rs. 8/-. The shop was of Khaprail and its Chhajan fell down as also some of the walls. The application made by the plaintiff under S. 7-E of U. P. Act of 1947 had been dismissed by the learned Munsif. When the plaintiffs application under S. 7-E of U. P. Act No. 3 of 1947 was dismissed, on the night intervening the 19th and 20th Sept., 1961 the defendant with the aid of some accomplices forcibly removed two doors fixed by the plaintiff himself as well as the old wood for Chhajan stored by him. It was averred that the defendant was preventing the plaintiff from using his shop by covering the demised premises with Tripal and threatened to occupy forcibly the site of the shop of which the plaintiff was the tenant. It was prayed that by means of a permanent injunction the defendant be prohibited from interfering with the plaintiffs possession as tenant of the site of the shop and the surviving constructions. An application was also made for an interim order of injunction. Initially the trial court passed an order that status quo be maintained. Ultimately after hearing the parties, the learned Munsif vacated the interim order. The injunction order having, been v