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Judgment
R.S. Ramanathan, J.—The Defendant, who was unsuccessful before the Courts below, is the Appellant. The Respondent/Plaintiff filed the
suit for mandatory injunction, directing the Appellant to allot Shop No. 4 in T.S. No. 554/3 to the Respondent/Plaintiff and for other reliefs.
The case of the Respondent/Plaintiff was that the suit property belonged to the Appellant and one Kaja Mohaideen was the tenant under the
Appellant in respect of a portion of the building and in the year 1988, he sublet the shop to the Respondent and also applied to the Appellant
herein to recognise the Respondent as the tenant and that was also accepted by the Appellant and the Respondent was paying the rent from
January, 1990, by entering into an agreement and was paying of Rs. 29/-per month. Due to the fire, the entire premises was destroyed and
thereafter, it was agreed between the Appellant and the Respondent that a new building will be constructed in that place and the building will be let
out to the erstwhile tenants and the Appellant also constructed four shops and three shops were given to the erstwhile tenants and the fourth shops
ought to have been given to the Respondent and the Appellant did not give that shop to the Respondent and therefore, a letter was written on
11.03.1982, requesting the Appellant to allot the fourth shops and that was followed by the Advocate notice, dated 30.03.1992 and the Appellant
received the notice and sent a reply stating that the Respondent will consider to give the shop when second phase is constructed and as the
Appellant had refused to allot the shop No. 4 to the Respondent after construction of the shop premises the suit was filed for mandatory injunction.
The Appellant contested the suit stating that no such offer was given by the Appellant to the Respondent to hand over the new shop and after
the building premises was destroyed by fire, no tenancy agreement existed between the parties and therefore, the Respondent cannot insist that he
must be given one shop portion. It is further stated that the Respondent was not running a business inside the building and he was running a shop
selling lottery tickets outside the building by making a temporary shop on the eastern side of the building and the Respondent was never in
possession in the portion of the building in T.S. No. 554/4 and the suit property was already leased out to one H.P.A. Syed Mohammed Sahib
and there was no agreement between the parties by which the Appellant agreed to give one portion of the newly constructed premises to the
Respondent and therefore, the Respondent cannot insist that he must be given one portion. Both the Courts accepted the case of the Respondents
and held that it was agreed by the Appellant to hand over one portion after the construction of the building and admittedly, one portion is vacant
and therefore, the Respondent is entitled to the decree and passed decree in favour of the Respondent. Hence, this Second Appeal has been filed
by the Appellant.
At the time of admission, the following substantial questions of law were framed:
When admittedly the Defendant Appellant institution is governed under the Scheme Decree framed by this Court in A.S. Nos. 279 and 576 of
1948, should Clauses 52 and 53 of the decree not be complied with in joining the advisory committee as necessary party to the suit?
The failure to join the necessary party is not fatal to the suit?
When the building admittedly and completely destroyed by fire, can the tenancy will continue, assuming previously the tenancy right of the
Plaintiff remained with the Defendant?
Unlss the right of the Plaintiff is established can the Plaintiff seek remedy in bare injunction?
Mr. Srinath Sridevan, learned Counsel for the Appellant submitted that the suit was filed for mandatory injunction, directing the Appellant to
allot Shop No. 4 to the Respondent and the law of mandatory injunction are dealt with u/s 39 of the Specific Relief Act and the mandatory
injunction can be granted when there is an obligation on the part of the Appellant to do certain acts in favour of the Respondent or to prevent a
breach of an obligation and to perform certain acts, such an injunction can be granted and in this case, there is no obligation to be performed by the
Appellant and it is the specific case of the Respondent that the Appellant agreed to hand over one portion of the shop after constructing the
building in the said premises and in that case, the Respondent has to enforce the agreement by filing a suit for specific performance and he cannot
file a suit for mandatory injunction, directing the Appellant to allot the shop. Further, if the contract runs into details, in the absence of specification
of those details, the contract cannot be enforced and according to the learned Counsel for the Appellant that though the Respondent claimed the
allotment of one portion in the newly constructed building, he has not stated that the terms on which the lease has to be arrived at namely the rent,
advance, the period of lease and other conditions and in the absence of such details the Respondent is not entitled to the relief of mandatory
injunction and relied upon the judgment reported in Vinod Seth Vs. Devinder Bajaj and Another, . and M. Raja Appar and Others Vs. M.
Gnanasambandam (deceased by L.R''s.), and according to him, u/s 14 of the Specific Relief Act, when a contract runs into such minute details, the
same cannot be enforced. He also submitted that even u/s 108(B) (e) of the Transfer of Property Act, if by fire, any material part of the property
was wholly destroyed, the lease shall, at the option of the lessee, be void and therefore, the lessee was given a right to avoid the lease in case the
tenant premises was destroyed by fire or by a natural calamity and under that section, no right is conferred on the tenant to insist the landlord to
give back the newly constructed portion to him on lessee and therefore, the Respondent tenant cannot insist that he must be given a portion after
constructing on the site.
On the other hand, Ms. R.T. Shyamala, learned Counsel for the Respondent submitted that Section 108 of the Transfer of Property Act was
interpreted by the Honourable Supreme Court in the judgment reported in (2001) 1 SCC 564 Vannattankandy Ibrayi v. Kunhabdulla Hajee and it
has been made clear in the judgment that Section 108 (B)(e) of the Transfer of Property Act has no application to the premises governed by the
State Rent Control Act and in this case, admittedly the premises belong to the Appellant which is a religious institution exempted under the
provision of the Tamil Nadu Buildings (Lease and Rent Control) Act and therefore, as per Section 108(B)(e) of the Transfer of Property Act, the
lease will not be extinguished and the lease will become void only at the option of the lessee on the destruction of the whole of the premises and the
Respondent lessee has not opted to declare the lease as void and therefore, the lease continues and when in the lease continues he is entitled to
claim the new structure. The learned Counsel further submitted that admittedly, the Respondent was a tenant in a portion of the building before it
was destroyed by fire and in the same place, four shops were constructed and three of them were let out to the erstwhile three tenants and one
shop remains vacant and even now that is kept vacant and therefore, in equity also the Respondent is entitled to claim that premises and in this
case, the Appellant also agreed to give one portion to the Respondent as evidenced by the reply Ex.A.4 and therefore, considering all these
aspects, the Courts below rightly decreed the suit.
The learned Counsel for the Appellant submitted that in Ex.A.4, the Appellant has not agreed to give one portion to the Respondent and it was
only stated that the request of the Respondent would be considered when second phase is constructed and there is no undertaking given by the
Appellant nor any promise was given by the Appellant to give one portion to the Respondent.
Heard the learned Counsel appearing on either side.
It is not in dispute that the Respondent was a tenant under the Appellant and the premises in which the Respondent was the tenant was
destroyed by fire and in that place, the Appellant had constructed four shops. It is not also in dispute that three shops were given to the erstwhile
tenants and the Appellant did not give a shop to the Respondent and therefore, the suit was filed for the relief of mandatory injunction. It is the
specific case of the Respondent that there was an arrangement between the parties by which the Appellant agreed to hand over the newly
constructed portion to the erstwhile tenants. Though the Respondent has pleaded about the agreement between the parties for handing over the
shop to the Respondent after reconstruction, Ex.A.2 and Ex.A.3 would disprove the case of the Respondent. Ex.A.2 was the letter sent by the
Respondent and in that letter, he has stated that he sought the permission of the Appellant to construct a building at his cost and it was represented
by the Appellant that the Appellant would construct the building and after the construction of the building, the building was not handed over to him.
In Ex.A.3, it was stated that the Appellant assured that after constructing the new shops, the same would be given to the erstwhile tenants. In
Ex.A.2 the earlier letter, there was no mention about the undertaking or the agreement by the Appellant to hand over the premises after
reconstruction and only in Ex.A.4, it is stated that the Appellant assured to hand over the new building. In both the letters Ex.A.2 and Ex.A3, the
terms of the lease were not mentioned and admittedly, the Appellant has not agreed to hand over the premises to the erstwhile tenants as per the
old terms. Therefore, in the absence of any details about the terms of tenancy, the Respondent cannot enforce that agreement. Further, except the
statement made in Ex.A.3 and in the plaint, there is no proof adduced by the Respondent that the Appellant agreed to hand over the new premises
to the Respondent after reconstruction. As a matter of fact, in Ex.A.4, the reply given by the Appellant to Ex.A.3, it has been stated that his
request of the Respondent would be considered when second phase is constructed in the suit property. Therefore, the Respondent has not proved
any arrangement or agreement between the parties by which the Appellant agreed to hand over one portion to the Respondent. Even assuming that
there was an agreement between the parties by which the Appellant agreed to hand over one portion, such agreement can be enforced only in a
the suit filed for specific performance and that cannot be done in a suit filed for mandatory injunction. Further, as stated supra, the parties are silent
about the terms of the lease and it is rightly submitted by the learned Counsel for the Appellant that the Respondent has not stated anything about
the rent, period of lease, advance and the other conditions to be incorporated in the lease and therefore, the contract cannot be enforced which
contains various details and when there is no evidence about the details of the terms of lease by both the parties, the contract cannot be enforced.
Therefore, even assuming that there was an agreement between the parties that the agreement cannot be enforced in a suit for mandatory injunction
and in the absence of any details about the terms of the contract the contract cannot be enforced.
Further, for issuing the mandatory injunction, there must be an obligation to be performed by the other side and that obligation must be clear
and should not be vague. In this case, according to the Respondent, the obligation on the part of the Appellant was to hand over the vacant
possession. Admittedly, it is not the case of the Respondent that the Appellant has agreed to hand over the vacant possession of the newly
constructed portion on the same term as agreed before the destruction of the property by fire. Therefore, when the Respondent expects the
Appellant to hand over the newly constructed portion, he must also spell out specifically the terms and conditions agreed and in the absence of
terms and conditions, no obligation is cast upon the Appellant to perform his part by handing over his premises. Therefore, in that event also the
Respondent is not entitled to the relief of mandatory injunction.
As per Section 108 (B)(e) of the Transfer of Property Act, in that event of whole of the leasehold properties is destroyed by fire or by natural
force, the lease shall be at the option of the lessee be void. No doubt in the judgment reported in (2001) 1 SCC 564, the Honourable Supreme
Court held that 108(B)(e) of the Transfer of Property Act has no application in the case of the premises governed by the State Rent Control Act.
In this case, admittedly, the building belongs to the Appellant which is religious institution, which is exempted from the provision of Tamil Nadu
Buildings (Lease and Rent Control) Act and therefore, Section 108 (B)(e) will apply to the lease in question. But, it has been made clear in the
above judgment that the said provision was introduced for the benefit of the tenants for the reason that after the destruction of the building though
the lease continues the tenant has to pay the rent. Therefore, the provision was introduced giving an option to the tenant to declare the lease
agreement as void and avoid payment of further rent. Therefore, even though the tenancy continues as per the provisions of Section 108(b)(e), that
right was given to the tenant to avoid the transaction, otherwise, he is liable to pay the rent. Therefore, the provision of 108(b)(e) cannot be taken
advantage by the tenant to claim that the tenancy continues and he is entitled to the portion. Even assuming that tenancy continues that will not
clothe the tenant from claiming the same premises in the absence of any agreement about the rent, period of lease and other conditions.
Unfortunately, both the Courts below did not consider all these aspects and decreed the suit erroneously. Hence, the judgment and Decree of the
Courts below are set aside. Subsequently, the substantial questions of law 3 and 4 are answered in favour of the Appellants.
The learned Counsel for the Appellants did not press the substantial questions of law 1 and 2 and therefore, they are not answered. As the
substantial questions of law 3 and 4 are in favour of the Appellants, the Second Appeal is allowed and the judgment and Decree of the Courts
below are set aside. No costs.