# ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS

- **Citation:** [2021] 10 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 2021-09-14
- **Case number:** Civil Appeal No. 1833 of 2008
- **Bench:** Hemant Gupta, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-khuddus-v-h-m-chandiramani-dead-thr-lrs-ors-34700
- **Pages:** 33

## Headnote

Karnataka Rent Control Act, 1961 - ss.5 and 21 - Karnataka
Municipal Corporations Act, 1976 - ss. 322 and 462 - Transfer of
Property Act - s.108(B)(e) - Plaintiff was inducted as tenant by an
allotment order passed by the Rent Controller in a building -
Ejectment petition filed on ground of bona fide use by landlord for
immediate purpose of demolition and erection of new building -
Corporation served notice u/s.322 of the Act citing dilapidated
condition of building - The said notice was challenged by filing
writ petition in the High Court - High Court dismissed the writ petition
with direction to pass final order - Final Order passed by Deputy
Commissioner and it directed that if the owner or occupier fails to
demolish building within 3 days then action will be taken under the
Act - Order served on plaintiff on 6.1.1995 at 5:20 PM and
demolition by the Corporation took place on 9.1.1995 at around 9
AM - Order of demolition was not challenged in statutory appeal -
Plaintiff filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages - The trial Court granted decree of the quantified damages
- In the first appeal, the High Court held that (i) there was a lack of
bona fide in issuing notice u/s.322 of the Act; (ii) there was no order
passed u/s. 462 of the Act; (iii) building was demolished in a haste
manner without giving clear 3 days notice - Therefore, the plaintiff
entitled to possession of premise comparable in size and form with
that of rented portion of suit property - On appeal, held: The
statutory tenant cannot seek repossession after demolition of building
u/s.108(B)(e) of the TP Act as the rights and liabilities of a statutory
tenant are to be found under the Rent Act - Since, the premises
were situated within the urban areas governed by the Rent Act, the
tenant has a right to seek possession only in terms of s.27 of the Act
if the decree for eviction was passed by the Court on the ground
specified under clause (j) of the proviso to sub-section (1) of s.21 -
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
In the instant case, the petition for eviction filed by the landlord
was withdrawn - S.322 of the Act is a self-contained provision which
empowers the Commissioner for immediate evacuation of the
property - The notice u/s.462 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 a dilapidated condition endangering life of
the citizens - Therefore, judgment and decree of the High Court not
sustainable - However, as the building was demolished within three
days of receipt of notice, appellant directed to compensate the
plaintiff with the damages of Rs. 5 lakhs - Order of High Court set
aside - Both the suits dismissed.
Code of Civil Procedure, 1908 - Or. II, R.2 - A building in a
dilapidated condition demolished by the corporation - Plaintifftenant filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages - The High Court held that suit is not barred by the
principles of Or.II, R.2 of CPC and cause of action in both the suits
was different - Held: 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
filed first suit after demolition of the building, the right to claim
damages for loss of the property including goods and machines
was available to the plaintiff on the said date - 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.
Allowing the appeals, the Court
HELD: 1. The judgment of this Court in Shaha Ratansi
Khimji was dealing with the

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[2021] 10 S.C.R. 643
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ABDUL KHUDDUS
v.
H.M. CHANDIRAMANI (DEAD) THR LRS. & ORS.
(Civil Appeal No. 1833 of 2008)
SEPTEMBER 14, 2021
[HEMANT GUPTA AND A. S. BOPANNA, JJ.]
Karnataka Rent Control Act, 1961 - ss.5 and 21 - Karnataka
Municipal Corporations Act, 1976 - ss. 322 and 462 - Transfer of
Property Act - s.108(B)(e) - Plaintiff was inducted as tenant by an
allotment order passed by the Rent Controller in a building -
Ejectment petition filed on ground of bona fide use by landlord for
immediate purpose of demolition and erection of new building -
Corporation served notice u/s.322 of the Act citing dilapidated
condition of building - The said notice was challenged by filing
writ petition in the High Court - High Court dismissed the writ petition
with direction to pass final order - Final Order passed by Deputy
Commissioner and it directed that if the owner or occupier fails to
demolish building within 3 days then action will be taken under the
Act - Order served on plaintiff on 6.1.1995 at 5:20 PM and
demolition by the Corporation took place on 9.1.1995 at around 9
AM - Order of demolition was not challenged in statutory appeal -
Plaintiff filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages - The trial Court granted decree of the quantified damages
- In the first appeal, the High Court held that (i) there was a lack of
bona fide in issuing notice u/s.322 of the Act; (ii) there was no order
passed u/s. 462 of the Act; (iii) building was demolished in a haste
manner without giving clear 3 days notice - Therefore, the plaintiff
entitled to possession of premise comparable in size and form with
that of rented portion of suit property - On appeal, held: The
statutory tenant cannot seek repossession after demolition of building
u/s.108(B)(e) of the TP Act as the rights and liabilities of a statutory
tenant are to be found under the Rent Act - Since, the premises
were situated within the urban areas governed by the Rent Act, the
tenant has a right to seek possession only in terms of s.27 of the Act
if the decree for eviction was passed by the Court on the ground
specified under clause (j) of the proviso to sub-section (1) of s.21 -
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
In the instant case, the petition for eviction filed by the landlord
was withdrawn - S.322 of the Act is a self-contained provision which
empowers the Commissioner for immediate evacuation of the
property - The notice u/s.462 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 a dilapidated condition endangering life of
the citizens - Therefore, judgment and decree of the High Court not
sustainable - However, as the building was demolished within three
days of receipt of notice, appellant directed to compensate the
plaintiff with the damages of Rs. 5 lakhs - Order of High Court set
aside - Both the suits dismissed.
Code of Civil Procedure, 1908 - Or. II, R.2 - A building in a
dilapidated condition demolished by the corporation - Plaintifftenant filed first suit, seeking mandatory injunction and possession
after demolition of building, followed by second suit claiming
damages - The High Court held that suit is not barred by the
principles of Or.II, R.2 of CPC and cause of action in both the suits
was different - Held: 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
filed first suit after demolition of the building, the right to claim
damages for loss of the property including goods and machines
was available to the plaintiff on the said date - 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.
Allowing the appeals, the Court
HELD: 1. 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 Transfer of Property
Act as the rights and liabilities of a statutory tenant have to be
found under the Rent Act alone. [Para 31][665-E]
2. The petition for eviction filed by the landlord was
withdrawn. Since the premises are situated within the urban areas
governed by the Rent Act (Karnataka Rent Control Act, 1961),
the tenant has a right to seek possession only in terms of Section
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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. [Para 32][665-F-H; 666-A-B]
3. Section 322 of the Karnataka Municipal Corporations
Act, 1976 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. [Para 33][666-C-E]
4. 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. 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
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
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 27
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. [Para 34, 35][666-E-F; 667-B-C]
5. The High Court has returned a finding that the Rent Act
will prevail over the Karnataka Municipal Corporations Act, 1976.
However, this Court is 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 welfareoriented 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. [Para 38]
[668-G-H; 669-A-B]
6.1. 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. In fact, there is three
days' notice from the date of the order but not from the date of
receipt of the notice. [Para 41, 42][672-G-H; 673-A-D]
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6.2. 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,
it is deemed 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. [Para 43][674-F-H;
675-A]
Ashoka Marketing Ltd. v. Punjab National Bank (1990)
4 SCC 406 : [1990] 3 SCR 649 - followed.
Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001) 1
SCC 564: [2000] 5 Suppl. SCR 630; V. Dhanpal
Chettiar v. Yesodai Amma (1979) 4 SCC 214: [1980] 1
SCR 334; Pradesh Kumar Bajpai v. Binod Behari Sarkar
(Dead) by Lrs (1980) 3 SCC 348: [1980] 3 SCR 93; K.
K. Krishnan v. M. K. Vijaya Ragavan (1980) 4 SCC
88: [1981] 1 SCR 139; N. Motilal & Ors. v. Faisal Bin
Ali & Anr (2020) 13 SCC 667 : [2020] 1 SCR 556;
Suraj Rattan Thirani v. Azamabad Tea Co. Ltd. AIR
1965 SC 295 : [1964] 6 SCR 192 ; State of Rajasthan
v. Swaika Properties (1985) 3 SCC 217 : [1985] 3 SCR
598; State of Punjab v. Khemi Ram (1969) 3 SCC 28 :
[1970] 2 SCR 657 - relied on.
Shaha Ratansi Khimji and Sons v. Kumbhar Sons Hotel
Private Limited and Ors. (2014) 14 SCC 1 : [2014] 6
SCR 1101; T. Lakshmipathi & Ors. v. P. Nithyananda
Reddy & Ors. (2003) 5 SCC 150 : [2003] 3 SCR 173;
R.S. Grewal & Ors. v. Chander Prakash Soni & Anr
(2019) 6 SCC 216 : [2019] 6 SCR 130; Allahabad Bank
v. Canara Bank & Anr (2000) 4 SCC 406 : [2000] 2
SCR 1102 - referred to.
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
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Case Law Reference
[2014] 6 SCR 1101
referred to
Para 20
[2003] 3 SCR 173
referred to
Para 22
[2000] 5 Suppl. SCR 630
relied on
Para 22
[1980] 1 SCR 334
relied on
Para 25
[1980] 3 SCR 93
relied on
Para 26
[1981] 1 SCR 139
relied on
Para 28
[2019] 6 SCR 130
referred to
Para 29
[2020] 1 SCR 556
relied on
Para 30
[1985] 3 SCR 598
relied on
Para 37
[1990] 3 SCR 649
followed
Para 39
[2000] 2 SCR 1102
referred to
Para 40
[1970] 2 SCR 657
relied on
Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1833 of
2008.
From the Judgment and Order dated 28.09.2006 of the High Court
of Karnataka at Bangalore in R.F.As No.88 of 2004, 1247 of 2005 and
15 of 2004.
With
Civil Appeal No. 1834 of 2008.
Sanjay Parikh, Sr. Adv., Ms. Hetu Arora Sethi, Advs. for the
Appellant.
Basava Prabhu Patil, Sr. Adv., Yatish Mohan, Subhash Chandra
Sagar, E. C. Vidya Sagar, Aman Gupta, Ms. Manjula Gupta, Shubhranshu
Padhi, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals are directed against an order passed by
the Division Bench of the High Court of Karnataka on 28.9.2006 in
three First Appeals filed before it. The first appeal was against the
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judgment and decree passed by the Additional City Civil & Sessions
Judge, Bangalore on 16.4.2005 in O.S. No. 10082 of 19951 whereby the
suit of plaintiff, now represented by his legal heirs, for permanent and
mandatory injunction was dismissed on 16.4.2005. The other appeal arises
out of another suit filed by the plaintiff for claiming damages in O.S. No.
16643 of 19992 which was decreed on 6.10.2003. The Plaintiff was
found entitled to recover a sum of Rs.1,25,000/- as damages towards
the loss/destruction of machineries, furniture, fittings and stock-in-trade
apart from the damages @ Rs.10,000/- per month towards the loss of
business of plaintiff from 9.1.1995 till the possession is restored, subject
to final decision of first suit. The defendants, official respondents and
the owner, filed two separate appeals against the same. The third appeal
arises out of first suit decided by the Additional City Civil Judge, Bangalore
on 16.4.2005 whereby the suit of the plaintiff for permanent and
mandatory injunction was dismissed.
2. All the three appeals were taken up and decided together by
the High Court. The High Court dismissed the appeals arising out of the
judgment and decree passed by the trial court in favour of the plaintiff
whereas, the appeal arising out of judgment and decree in first suit filed
by the plaintiff was allowed.
3. The plaintiff was inducted as a tenant on 7.5.1974 by an
allotment order passed by the Rent Controller under Section 5 of the
Karnataka Rent Control Act, 19613. The rented portion was on the first
floor of the two-floor building of Premises No. 50, Ebrahim Saheb Street,
Civil Station, Bangalore.
4. One Panduranga Shetty was the owner of the building. Such
building was constructed in 1903 with Mangalore tiles and wooden
beams. The appellant Abdul Khuddus was arrayed as defendant No. 7
in the first suit and defendant No. 1 in the second suit and was the
purchaser of the front portion of the building vide sale deed dated
18.3.1994. Sheikh Hyder purchased the rear portion of the building on
the same date whereas one Sheikh Mohd. purchased the northern side
of the building on 9.12.1994. The Bangalore City Corporation4 is the
appellant in the third appeal.
1 Hereinafter referred to as the 'first suit'
2 Hereinafter referred to as the 'second suit'
3 For short, the 'Rent Act'
4 For short, the 'Corporation'
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
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5. The appellant herein filed an ejectment petition seeking
ejectment of the plaintiff under Section 21(1)(j) of the Rent Act on the
ground that the premises were required for bonafide use by the landlord
for the immediate purpose of demolishing them and erecting a new building
in place of the premises sought to be demolished.
6. A notice under Section 322 of the Karnataka Municipal
Corporations Act, 19765 was issued by the Corporation on the ground
that the building was in dilapidated condition, unsafe and dangerous. The
plaintiff challenged the said show cause notice in W.P. No. 20400 of
1994 whereby an ad-interim stay was granted by the High Court. Later,
Shri B. Ravi Kumar, Advocate was appointed as a Commissioner on
27.9.1994 to visit the property and submit a report which was done on
16.11.1994. In the report, it was stated that the building was in a bad
condition and that there were also cracks in the building, leakage of
water etc.
7. The High Court dismissed the writ petition on 8.12.1994 as the
same was directed only against show cause notice. However, the High
Court directed the officials of the Corporation not to demolish the building
except pursuant to a final order to be made within four weeks. The
operative part of the order of the High Court reads as under:
"5. Accordingly this petition is disposed of with a direction to
respondent-2 not to dismantle the building in question without
making any final order pursuant to notice, Annexure-A and serving
a copy of the final order on the petitioner. It is made clear that
none of the respondents should take any steps to dismantle the
building except pursuant to a final order made by respondent-2. It
is further made clear that if the petitioner sustains any injury on
account of the alleged dilapidated condition of the building,
respondents 7 to 10 shall not be held responsible. Respondent-2
shall make the final order within four weeks to serve a copy of
the same on the petition a week therefrom. Liberty is reserved
petitioner to take steps as are allowed against the final order."
8. It is thereafter the Deputy Commissioner of the Corporation
passed an order on 5.1.1995 after personally inspecting the building and
returning a finding that the building was in poor condition. It was noticed
that it was the duty of the Corporation to take action in order to prevent
5 For short, the 'Act'
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any imminent danger to the public independently of the dispute, if any,
between the parties. The operative part of the order reads as under:
"After careful consideration of all aspects the objections filed by
the occupier Sri. H.M. Chandiramani are overruled and it is
ordered and directed that the building situated at No. 50, Ibrahim
Saheb Street, Bangalore, which is in a dilapidated and dangerous
condition be taken down immediately to avoid any danger to the
passers by.
If the owner or occupier fails to take down the building within 3
days action will be taken by the Bangalore Mahanagar Palika
under Section 462(2) of the K.M.C. Act, 1976 to take down the
building at the cost of the owner and the said cost will be recovered
as per Section 470 of K.M.C. Act, 1976."
9. The said order was served upon the plaintiff on 6.1.1995 at
5.20 PM and the building was demolished by the Corporation on 9.1.1995
at around 9 AM. The possession of vacant land was given to the owners.
The order of demolition was not challenged in appeal in terms of Section
444 of the Act or before any other authority or forum.
10. The appellant relies upon the communication dated 09.01.1995
on behalf of Bina Chandiramani, wife of the deceased plaintiff, and
Sharmila Chandiramani, daughter of the deceased plaintiff which was
made in the handwriting of the daughter. It was averred that they have
carried the goods such as garments, machinery, fittings etc., in the
absence of the plaintiff in vehicle No. CAS 337, thus it was an implied
surrender of possession.
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:
"9. ............The plaintiff will be taking steps against the defendant
and corporation officials for contempt of court, disobedience of
orders of Court and for damages incurred actual, general by the
plaintiff separately.
ABDUL KHUDDUS v. H.M. CHANDIRAMANI (DEAD) THR LRS.
[HEMANT GUPTA, J.]
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10. In the meanwhile, the defendant, who, under law cannot be in
possession of schedule premises and is attempting to take forcible
possession of the same and letting out and alienate the same to
others and also to put up construction. He cannot do so under law,
until disposal of the HRC Petition. The plaintiff has legal right to
be protected. The plaintiff is rudely shocked at the high handedness
of the defendant. In the evening of 25.01.95, alongwith his
henchmen, the defendant tried to commit criminal trespass into
the schedule property and wanted to put up wall etc. whereupon
the plaintiff made hue and cry and by which there was commotion
and a oral complaint also given to the police, and in writing on
25.01.95 for which no acknowledgement was given, however the
defendant could not succeed in his attempt and the plaintiff has
sent copy of the said complaint under certificate of posting today
to the police.
11. The cause of action for the suit arises within the jurisdiction of
this Hon'ble Court at Bangalore on 25.01.95 and subsequently
thereafter, when the plaintiff attempted to commit criminal trespass
into the suit schedule property, within the jurisdiction of this Hon'ble
Court."
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, 19086. 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:
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(i)
There is lack of bonafides in issuing notice under Section
322 of the Act, therefore, the order passed is not legal and
valid.
(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 II of
Rule 2 of the CPC.
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
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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
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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.
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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, 18828, 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 the High Courts in support of such argument.
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
7 (2014) 14 SCC 1
8 For short, the 'TP Act'
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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, 11⁄2" 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
9 (2003) 5 SCC 150
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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. In Vannattankandy Ibrayi the learned Judges referred to
the decision on common law, the principles in American
jurisprudence, and various decisions of the High Courts and
adverted to two categories of tenants, namely, a tenant under the
Transfer of Property Act and the other under the State rent of
laws and proceeded to interpret Section 108(B)(e) to hold that
where a premises has fallen down under the circumstances
mentioned therein, the destruction of the shop itself does not amount
to determination of tenancy under Section 111 of the Act and
there is no automatic determination of tenancy and it continues to
exist.......
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27............................On the touchstone of this analysis, we
respectfully opine that the decision rendered in Vannattankandy
Ibrayi (supra) does not correctly lay down the law and it is,
accordingly, overruled.
28. In the present case, it is not in dispute that the respondent
purchased the lessor's interest. The lease continued even
thereafter and did not extinguish. The lease was subsisting when
the shares of the land were purchased by the respondent. But the
interest of the lessee was not purchased by the respondent. What
has been purchased by the respondent is the right and interest of
ownership of the property. The interest of the appellant as lessee
has not been vested with the respondent. Therefore, we are of
the view that the tenancy of the appellant cannot be said to have
been determined consequent upon demolition and destruction of
the tenanted premises.
29. In view of the facts and circumstances of the case, we have
no other option but to set aside the impugned judgment and decree
dated 18-7-2006 passed by the High Court of Judicature of
Bombay in Shaha Ratansi Khimji & Sons v. Proposed Kumbhar
Sons Hotel (P) Ltd. [Shaha Ratansi Khimji & Sons v. Proposed
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Kumbhar Sons Hotel (P) Ltd., Second Appeal No. 109 of 2006,
decided on 18-7-2006 (Bom)] and judgment and decree dated
30-11-2005 passed by the Additional District Judge, Karad in RCA
No. 86 of 2002. However, taking into consideration the fact that
the appellant is not in possession of the suit property since long,
we are not inclined to direct restoration of possession of suit
property to the appellant. Instead we direct the respondent to pay
a sum of Rs 20,00,000 (Rupees twenty lakhs only) in favour of
the appellant towards compensation for depriving the appellant
from enjoying the suit property within two months, failing which it
shall be liable to pay interest @ 6% per annum from the date of
the judgment."
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:-
"20. From the aforesaid decisions there is no doubt that if a building
is governed by the State Rent Act the tenant cannot claim benefit
of the provisions of Sections 106, 108 and 114 of the Act. Let us
test the arguments of learned counsel for the appellant that
on the destruction of the shop the tenant can resist his
dispossession on the strength of Section 108B(e). In this case
what was let out to the tenant was a shop for occupation to carry
on business. On the destruction of the shop the tenant has ceased
to occupy the shop and he was no longer carrying on business
therein. A perusal of Section 108(B)(e) shows that where a
premises has fallen down under the circumstances mentioned
therein the destruction of the shop itself does not amount to
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