Abdul Khuddus v. H.M. Chandiramani

11. The first suit was filed on 27.1.1995 for permanent injunction, though the building stood demolished on 9.1.1995. Subsequently, the suit was amended to claim relief for mandatory injunction and possession. The plaintiff had pleaded that he would be taking steps for contempt of court for disobedience of the orders of Court and for damages incurred, actual or general. The cause of action was said to have arisen on 25.01.1995 when the appellant attempted to commit criminal trespass into the schedule property in possession of the plaintiff. The relevant extract from the plaint reads thus:

12. The second suit was filed on 30.10.1995 claiming damages, though such right of damages was also available when the first suit was filed on 27.1.1995. As mentioned above, the first suit was decided on 16.4.2005 which is later than the decree in the second suit. In the first suit, a finding was returned that the second suit was barred by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908[6]. The second suit was filed as an indigent person wherein the plaintiff claimed that he had 12 sewing machines, and other materials at the shop at the time of demolition. The learned trial court assessed the value of stock-in-trade of readymade garments and finished goods at around Rs.50,000/- and another Rs.25,000/- for fittings, fixtures, furniture, electrical fittings etc. The trial court further found that he had lost his earnings of Rs.10,000/- per month on the basis of Ex.P/40. The decree was to grant quantified damages and to pay Rs. 10,000/- per month till such time, the possession is handed over to the plaintiff.

13. In the first appeal, the Division Bench of the High Court interalia held that:

(i) There is lack of bonafides in issuing notice under

(ii) The notice has been issued without examining the fact that the plaintiff has got statutory protection under the Rent Act. The cause of action to demolish the building would arise only after passing an order under Section 462 of the Act and that action of the Corporation is tainted with legal malafide.

(iii) The building was demolished in haste as the order was served upon the plaintiff at 17:20 hours on 6.1.1995 and the building was demolished on 9.1.1995 without giving clear 3 days of notice period.

(iv) Section 21 of the Rent Act has overriding effect under Section 322 of the Act as statutory protection is granted to the tenant. Therefore, the proceeding under Section 322 of the Act was not permissible.

(v) That the suit is not barred by the principles of Order

14. The High Court, thus, allowed the appeal holding that the building in question was demolished in haste and the plaintiff was thus entitled to possession of the building as he was unlawfully dispossessed of the same. The Corporation and the appellant were therefore directed to restore the possession within two months of a shop comparable in size and form in the built portion of the suit property.

15. Learned counsel for the appellant vehemently argued that the High Court proceeded on the assumption that there was an interim injunction on 15.2.1995 in the first suit, however the building already stood demolished on 9.1.1995. The first suit was filed on 27.1.1995 subsequent to the demolition. Still further, an application filed by the plaintiff under Order XXXIX Rule 2A of the CPC for violation of an interim order dated 15.2.1995 was dismissed on 10.8.1998. Thereafter, the first suit was decided on 16.4.2005. Thus, there is a factual error in the order passed by the High Court.

16. The proceedings were initiated against the plaintiff under the Act vide notice issued on 24.5.1994. The said order was challenged by the plaintiff before the Writ Court wherein a Court Commissioner was appointed who reported about the dilapidated condition of the building. The High Court had given four weeks’ time to the Corporation to pass an order on the show cause notice issued. The order was passed on 5.1.1995 after giving an opportunity of hearing to the plaintiff and after visiting the site by the Deputy Commissioner of the Corporation. Thus, the plaintiff was well aware of the proceedings initiated against him by the Corporation. The order of dismissal of the writ petition on 8.12.1994 was not challenged by the plaintiff. Since the Corporation was given four weeks’ time to pass a final order, therefore, the Corporation was bound to pass an order in terms of the direction of the High Court, which was passed on 5.1.1995. The said order was served on 6.1.1995. The building was demolished on 9.1.1995, which was the third day of serving of the said order. Therefore, there is no violation neither of the order of the High Court nor the building was demolished in haste.

17. It was also argued that the plaintiff was bound to include his claim for damages in the first suit which was filed on 27.1.1995 after the demolition had taken place. Since no grievance was raised in the first suit regarding damage to the property or to the loss of business, the second suit would be barred by the provision of Order II Rule 2 CPC. However, as per the plaintiff, the cause of action arose on 09.01.1995, when the plaintiff was dispossessed from the schedule property. The relevant extract from the plaint of the second suit reads as under: “The cause of action for the suit arises within the jurisdiction of this Hon’ble Court at Bangalore on 09.01.95 being date when plaintiff was disposed from the schedule premises with his belongings etc. and as stated above and subsequently on various dates when notices have been issued and acknowledged by the defendants-6. The value of the suit for purpose of (illegible) and jurisdiction is as per valuation (illegible) plaintiff is indigent person and he may be permitted to prosecute the above case in pharma (illegible) as he is unable to pay court fee.”

18. The finding of the High Court that notice under Section 322 of the Act was not bonafide as tenant has the protection of the Rent Act was assailed on the ground that the proceedings under the Rent Act are restricted between landlord and tenant to seek ejectment on the permissible grounds whereas the Act is much wider to ensure public safety on account of dilapidated building endangering the life and property of the occupants. Both the Acts operate in their assigned separate fields and therefore, it cannot be said that the Rent Act has the preference over the Act. It was also argued that the order passed by the Corporation on 5.1.1995 was keeping in view the building which was in old dilapidated condition and could be a cause of danger to the public. The finding of the High Court that the proceedings under the Act was an act of collusion between the owner and the Corporation is misconceived only for the reason that the appellant has withdrawn rent proceedings after the demolition of the building on 6.2.1995. The tenanted portion had ceased to exist after demolition; therefore, the relief of ejectment was no longer available to the appellant.

19. On the other hand, learned counsel for the respondents herein argued that the order of demolition was served upon the deceased plaintiff on 6.1.1995 at 5:20 pm and the building was demolished on 9.1.1995 at 9:00 am. Therefore, there was no clear three days’ notice granted to the plaintiff to vacate the premises nor to avail any legal remedy. It was further argued that order under Section 322 of the Act could not be executed without passing an order under Section 462 of the Act. Learned counsel supported the findings of the High Court that it was high handedness of the officials of the Corporation and the appellant which led not only to loss of the premises but loss of business as well. Section 322 and Section 462 of the Act read as under: “322. Precautions in case of dangerous structures. – (1) If any structure be deemed by the Commissioner to be in a ruinous state or dangerous to passersby or to the occupiers of neighbouring structures, the Commissioner may, by notice require the owner or occupier to fence off, take down, secure or repair such structure so as to prevent any danger therefrom. (2) If immediate action is necessary, the Commissioner may himself, before giving such notice or before the period of notice expires fence off, take down, secure or repair such structure or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier in the manner provided in Section 470. (3) If in the Commissioner’s opinion the said structure is imminently dangerous to the inmates thereof, the Commissioner shall order the immediate evacuation thereof and any person disobeying may be removed by any police officer. xx xx xx

462. Time for complying with order and power to enforce in default. – (1) Whenever by any notice, requisition or order made under this Act or under any rule, bye-law or regulation made under it, any person in required to execute any work, or to take any measures or do anything, a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures taken, or the thing done. (2) If such notice, requisition or order is not complied with within the time so named, then whether or not a fine is provided for such default and whether or not the person in default is liable to punishment or has been prosecuted or sentenced to any punishment for such default, the Commissioner may cause such work to be executed, or may take any measure or do anything which may, in his opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid. (3) If no penalty has been specially provided in this Act for failure to comply with such notice, the said person shall, on conviction, be punished with fine not exceeding fifty rupees for such offence.”

20. The plaintiff asserted that the area of the subject shop was 1000 sq. feet (approx.). Reliance was placed upon schedule of property given in plaint of the first suit. It was submitted that the right of a tenant survives even after demolition of tenanted premises. Reference was made to Section 27 of the Rent Act as well as three-judge bench judgment of this Court reported as Shaha Ratansi Khimji and Sons v. Kumbhar Sons Hotel Private Limited and Ors.[7] holding that in terms of Section 108B(e) of the Transfer of Property Act,, the destruction of tenanted property would not amount to determination of tenancy under Section 111 of the TP Act. Reliance was also placed upon some judgments of

21. In respect of area of tenanted premises, the plaintiff relied upon the schedule of the property in the suit for injunction. Such schedule does not show the area in possession but shows the boundaries of the building. As per the Court Commissioner, the entire building measured about 38 feet x 16 feet. The Commissioner had given the report that northern side of the ground floor was damaged as in the inside wall, there were air cracks and leakage of water. Some of the portion of the building towards the northern side had already fallen down. The western side, adjacent to the northern wall was also in a very bad condition as the roof of the room was damaged by the cracks and leakage of water from the roof inside the northern wall. In the middle of northern wall on the first floor, 1½” cracks appeared inside the wall from the top of the roof. The length of the said crack was about 6 feet from the top. The leakage of the water from the roof of the first floor and cracks were coming in the wall of the southern side as well. The Court Commissioner found that there were cracks in the building and leakage of water on the northern side wall. The area of tenanted premises was not an issue, which would be relevant as to whether the tenanted premises had been demolished without adequate notice or if the tenant has right to enter into possession of building constructed on the site in question.

22. We have heard learned counsel for the parties and found that the judgment and decree of the High Court cannot be sustained. The argument of the plaintiff was that in spite of demolition of the building by the Corporation, the tenancy rights survive as the right of tenancy is not only in building but also in the land. Thus, the plaintiff was entitled to equivalent size of shop in the building which has been constructed on the land of which the Plaintiff was a tenant on the first floor. Reliance has been placed on judgment of this Court in Shaha Ratansi Khimji wherein the godown in possession of the tenant was demolished. The assertion of the tenant in the said case was that the owner started digging of basement for construction of a hotel next to the wall of godown. The tenant filed a suit for injunction claiming restraint order against the owner from digging as it would endanger the godown. The tenant claimed by way of an amendment to reconstruct the walls of godown. The learned trial court dismissed the suit. The appeal as well as the second appeal against the said judgment was also dismissed. This Court, in an appeal directed against the three orders passed by the courts below interpreted Section 108(B)(e) of the TP Act holding that right has not been conferred by the statute on the lessor for determination, therefore, it will not be permissible for the Court to add another ground of base or fulcrum of ethicality, difficulty or assumed supposition. The tenancy rights would continue over the land even after the building was demolished. This Court approved the judgment of this Court reported as T. Lakshmipathi & Ors. v. P. Nithyananda Reddy & Ors.[9] wherein the landlord initiated eviction proceedings on the ground that he requires the premises for his own bona fide use and that tenant was in arrears of rent and had also sub-let the premises. This Court overruled the judgment of this Court reported as Vannattankandy Ibrayi v. Kunhabdulla Hajee10 and held as under:

23. A perusal of the above extract from the judgment shows that this Court noticed that there are two categories of tenants namely, a tenant under the TP Act and the other under the State Rent Laws. There is no assertion that the property in question in the said case was governed by State Rent Laws. It was a case where the owner started digging a ditch towards the northern side wall of the suit property. During the rainy season, the water used to get accumulated in the said ditch and that the owner closed the access road to the said property. It was also alleged that the owner went ahead with destruction of the godown and demolished the western wall of the godown. The judgment does not deal with statutory tenant protected by a particular statute but with the principles of a contractual tenancy in terms of Section 108(B) (e) of the TP Act. In fact, the para quoted in the three judge bench judgment is an alternate argument raised in the Vannattankandy Ibrayi, which is evident from the following para:-

24. In Shaha Ratansi Khimji, the Court has considered the alternative argument assuming that Section 108(B)(e) of the TP Act is applicable. However, the primary argument that being a statutory tenant, right has to be culled out only from the Rent Laws had not been raised or considered. It is the alternative argument which has not found favour with the three Judge Bench in Khimji case. In respect of the statutory tenant, different aspects of rights of statutory tenant need to be examined, which are not the same as rights of a lessee under the TP Act.

25. A Seven Judge Bench in the judgment reported as V. Dhanpal Chettiar v. Yesodai Ammal11 was examining a question as to whether a statutory tenant is entitled to notice of termination of tenancy contemplated by Section 106 of the TP Act or not. It was held that since statutory tenant is entitled to protection under the Rent Act, therefore, the procedure prescribed under the TP Act would not be applicable. The Court held as under:

26. In a later judgment reported as Pradesh Kumar Bajpai v. Binod Behari Sarkar (Dead) by Lrs.12, a three Judge Bench of this Court was examining the claim of tenant with respect to right to pay arrears of rent in terms of Section 114 of the TP Act. The following argument was examined: “9. …….The only question that arises and which was seriously contended for on behalf of the respondent is that in addition to the safeguards provided to the tenant under the Act, he is also entitled to the benefits of Section 114 of the Transfer of Property Act. Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act 3 of 1947 restricts the rights of the landlord to have the tenant evicted. But for the statutory provisions, the landlord would be entitled to evict the tenant according to the terms of the contract or the provisions of the Transfer of Property Act. As the Rent Act has restricted the power of the landlord to evict the tenant except in accordance with the provisions of the Act, the terms of the contract and the provisions of the Transfer of Property Act to that extent are no longer applicable.”

27. The question raised on the basis of the argument of the tenant was found to be without any substance that he was entitled to double protection under the Rent Act and under the TP Act. The Court held as under: “12. …..If the relief provided for under the section is available, as the lessee had tendered the rent in arrears along with the interest thereon and his full costs in the suit, it was open to the court to pass an order relieving the lessee against the forfeiture. The plea of the learned Counsel for the tenant is that this provision should also be read into the U.P. (Temporary) Control of Rent and Eviction Act. In a decision of seven-Judges, Bench of this Court in V. Dhanapal Chettiar v. Yasodai Ammal [(1979) 4 SCC 214: (1980) 1 SCR 334] the question as to whether in order to get a decree for eviction, the landlord under the Rent Control Act should give notice as required under Section 106 of the Transfer of Property Act was considered. This Court held that determination of the lease in accordance with the Transfer of Property Act is unnecessary and that if a case is made out for eviction under the Rent Act, it is itself sufficient and it is not obligatory to determine the lease by issue of notice as required in accordance with Section 106 of the Transfer of Property Act. The learned Counsel for the tenant submitted that the decision is confined only to the question as to whether notice under Section 106 of the Transfer of Property Act is necessary and did not decide as to whether the provisions of the other sections of the Transfer of Property Act are applicable. It is to be noted, however, that the question of determination of a lease by forfeiture under the Transfer of Property Act, was specifically dealt with by the court and it was held that the claim of the tenant that he is entitled to a double protection (1) under the Rent Act and (2) under the Transfer of Property Act, is without any substance. In the case before us, it is not in dispute that after the Rent Act came into force, the landlord cannot avail himself of clause 12 which provides for forfeiture, even if the tenant neglected to pay the rent for over two months. The landlord cannot enter into possession forthwith without notice. The only remedy for him is to seek eviction under the provisions of the Rent Act. In such circumstances the tenant cannot rely on Section 114 of Transfer of Property Act and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of Section 3(1) had been fulfilled.”

28. In another judgment reported as K. K. Krishnan v. M. K. Vijaya Ragavan13 an argument was raised relying upon Section 108(j) of the TP Act that lessee has a right to sublease the whole or any part of his interest in the property. Therefore, the landlord cannot seek eviction on the ground of subletting under the Kerala Buildings (Lease and Rent Control) Act. The Court held as under:

29. In another judgment reported as R.S. Grewal & Ors. v. Chander Prakash Soni & Anr.14, the Court was examining a case where a legatee under a Will was given life interest. It was argued that creation of a tenancy which will continue beyond the life of the legatee will amount to transfer of the interest beyond the life of the legatee. The Court held that the protection which is conferred upon the tenant against eviction, except on specified grounds, arises as a consequence of statutory prescription under rent control legislation. The Court held as under:

30. In another judgment reported as N. Motilal & Ors. v. Faisal Bin Ali & Anr.15, it was held that even during the period of contractual tenancy, if the premises are governed by the Rent Laws, the parties have an option to seek determination of fair rent. It was held as under:

31. In view of the binding decisions of the larger bench and keeping in view the fact that the judgment of this Court in Shaha Ratansi Khimji was dealing with the rights of contractual tenant, the statutory tenant cannot seek repossession after the demolition of building under Section 108(B)(e) of the TP Act as the rights and liabilities of a statutory tenant have to be found under the Rent Act alone.

32. The petition for eviction filed by the landlord was withdrawn. Since the premises are situated within the urban areas governed by the Rent Act, the tenant has a right to seek possession only in terms of Section 27 of the Act if the decree for eviction has been passed by a Court on the ground specified under clause (j) of the proviso to sub-section (1) of Section 21. Even if it is assumed that decree of eviction was passed on the withdrawal of the eviction petition, the tenant has to seek possession of the premises from the date on which he delivered vacant possession of the premises to the landlord. The plaintiff filed first suit claiming right over the land after demolition of the building but being a statutory tenant, he had to avail the remedy under the Rent Act as the provisions of the TP Act are not applicable to the building and land situated within urban area. In view of the provisions of the Act, the terms of the TP Act cannot be applied for in respect of statutory tenants. The High Court has returned a finding that the plaintiff was a statutory tenant. In view of the said fact, the remedy of the tenant, if any, has to be found within four corners of the Rent Act and not under the TP Act.

33. Another argument raised by the tenant was that a notice under Section 462 of the Act was not served. We do not find any merit in the said argument. Section 322 of the Act is a self-contained provision which empowers the Commissioner for immediate evacuation of the property and any person disobeying such orders was to be removed by any Police Officer. Section 462 of the Act is in respect of execution of any work or to take any measures or to do anything. The works and the measures mentioned therein are in respect of other provisions in the statute which contemplate compliance by the citizens. Section 322 of the Act is an independent provision. Therefore, the notice under Section 462 of the Act was not required to be issued. The time for complying with the order does not arise in the case of a building which was in dilapidated condition endangering life of the citizens. Thus, we do not find any merit in the said argument as well.

34. The plaintiff had filed the first suit on 27.1.1995 after the tenanted premises were demolished. The right to claim damages for loss of the property including goods and machines was available to the plaintiff on the said date. In fact, in the second suit, the plaintiff has pleaded that the cause of action arose to him on 9.1.1995. The Order II Rule 2 CPC reads thus:

35. A perusal of the above Rule would show that every suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The cause of action is a bundle of facts and relief of damages is construed to be a component of such bundle of facts. The plaintiff was conscious of the fact that he wants to sue for damages which is evident from his averment in para 9 of the plaint of the first suit but the plaintiff was required to obtain leave of the Court before filing suit for damages subsequently. The High Court has clearly erred in law in holding that the cause of action for both the suits is different.

36. The cause of action as held in Suraj Rattan Thirani v. Azamabad Tea Co. Ltd.16 is a bundle of facts which included the relief of possession as well as the loss which occurred on account of alleged demolition. This Court held as under: “29. We consider that the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Mian [75 IA 121] is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression “same cause of action” which occurs in a similar context in para (1) of Order 2 Rule 2 of the Civil Procedure Code observed: “In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is/are the causes of action in the two suits in substance — not technically — identical?”

30. The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijomonse Dasee v. Suddanund [(1873) 12 Beng LR 304, 315] and extracted the following passage as laying down the approach to the question: “Their Lordships are of opinion that the term ‘cause of action’ is to be construed with reference rather to the substance than to the form of action….” Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits.

The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same fact…….”

37. In State of Rajasthan v. Swaika Properties17, this Court held that cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to seek relief against the defendant. The Court held as under:-

38. The High Court has returned a finding that the Rent Act will prevail over the Act. However, we are unable to agree with this observation. Both the statutes are enacted by the State of Karnataka. The Act deals with the municipal functions which are wider and welfare-oriented towards the residents of the area of Corporation, whereas the Rent Act has a limited application for determining the rights of land owner and tenant. Both operate in separate spheres as both have different objectives to be achieved.

39. In Ashoka Marketing Ltd. v. Punjab National Bank18, a Constitution Bench held that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. The Court held as under:-

40. In Allahabad Bank v. Canara Bank & Anr19, this Court held that there can be a situation in law where the same statute is treated as a special statute vis-à-vis one legislation and again as a general statute vis-à-vis another legislation. Between the Act and the Rent Act, the Act is a general statute enacted as a third tier of local Government administration. The functions of the Corporation, inter alia, includes the regulation and maintenance of the land and building, hygiene and health, public streets and other for a larger section of the inhabitants falling in the municipal area, whereas the Rent Act deals with the issues between the landlord and the tenant conferring right to the landlord to seek eviction and correspondingly provide protection to the tenant. Therefore, the finding of the High Court that Rent Act would prevail over the Act is clearly erroneous as both legislations operate in separate distinct spheres having different objectives in mind.

41. The finding of the High Court that the building was demolished without giving clear three days’ notice is partly correct. The notice was served upon the plaintiff on 6.1.1995 and the building was demolished on 9.1.1995. Thus, clear three days’ notice was not served upon the plaintiff. The plaintiff was however aware of the proceedings initiated by the Corporation on the ground that the building in question was in dilapidated condition and unsafe for human inhabitation. The plaintiff had challenged such notice before the High Court. The High Court had given four weeks’ time to the Corporation to pass a speaking order after giving an opportunity of hearing to the plaintiff. The building was inspected by the Deputy Commissioner of the Corporation and opportunity of hearing was granted to the plaintiff as well. Therefore, it is not a case where there was any sudden development leading to the demolition of the building but the order of demolition was a considerate action passed after the report of the Court Commissioner was submitted before the High Court and the Corporation was given time to finally decide the show cause notice issued on 24.5.1994.

42. In fact, there is three days’ notice from the date of the order but not from the date of receipt of the notice. This Court in State of Punjab v. Khemi Ram20 held as under:

43. Once the order was passed by the Corporation on 5.1.1995 and was put on the means of communication, the date of actual receipt of notice is insignificant as the receipt could be delayed by the recipient, though there is no such attempt or finding. The wife and daughter of the plaintiff had removed the goods including sewing machines etc., hence the damages would include any loss of goods and the machines which were in the tenanted premises in question. Keeping in view the fact that the building was demolished within three days of the receipt of notice, we deem it appropriate to order the appellant to compensate the plaintiff with the damages of Rs.[5] lakhs. Such amount will be payable to the legal heirs of the deceased plaintiff in accordance with law. The appellant shall deposit a sum of Rs. 5 lakhs within a period of two months before the trial court.

44. Consequently, the order of the High Court dated 28.09.2006 is hereby set aside and both the suits are dismissed, subject to payment of Rs. 5 lakhs to the legal representatives of the plaintiff within two months. The appeals are allowed .............................................. J. (HEMANT GUPTA) ............................................. J. (A.S. BOPANNA) NEW DELHI; SEPTEMBER 14, 2021.