1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3301 OF 1994 Kashinath Krishnaji Jadhav (since deceased) by his legal representatives .. Petitioners versus Chandanmal Kundanmal Jain (since deceased) by his legal representatives .. Respondents Mr.P.N.Karlekar for the petitioners. Mr.Moholkar h/f Mr.R.P.Mudholkar for respondent Nos.1a and 1b. CORAM : A.S.OKA, J. DATE : 14th January 2010. JUDGMENT: . The petitioners are the legal representatives of the original plaintiff and the respondents are the legal representatives of the defendant. The original petitioner-plaintiff filed a suit for possession against the original defendant. The plaintiff contended that he was a tenant of a shop premises admeasuring 6ft X 10ft at the south corner of of ground floor of House No.14/52 situated at Mirchi Galli, Pen, Taluka Pen, District Raigad. The defendant was the owner and landlord of the said building No.14/52. According to the case of the plaintiff the tenancy was monthly tenancy in accordance with the British calendar and the rent was fixed at Rs.7/- per month. According to the case of the plaintiff he was a tenant in respect of the said shop premises from 1949. 2 2. The case of the plaintiff is that on 18th June 1981, in the early hours of the morning, the said building abruptly caught fire and was virtually reduced into ashes. On 19th June 1981 when the plaintiff made an attempt to repair the shop premises, the defendant assured him that a new building would be constructed and a shop constructed in place of suit shop premises will be handed over to the plaintiff. The defendant requested the plaintiff to make a temporary arrangement and accordingly the plaintiff started business of pan shop on a hand-cart near the building. Another tenant holding a premises in the said building filed a suit for possession against the defendant. The defendant recorded a settlement in the said suit by which a premises in the reconstructed building were offered to the said tenant. According to the plaintiff, the defendant repeatedly assured him to put him in possession of a shop in a newly constructed building. On 11th December 1981, the defendant declined to give a shop to the petitioner. Therefore, the suit was filed by the petitioner. 3. The defendant filed a written statement contending that the measurement of the suit shop given by the plaintiff was not correct. The defendant denied that there was any talk between him and the plaintiff that in the reconstructed building the plaintiff will be put in possession of a shop. 4. The trial Court decreed the suit. The trial Court held that the plaintiff has established that his tenancy rights continued to exist after the suit shop was destroyed due to fire. The trial Court decreed the suit by directing that the plaintiff shall be entitled to possession of shop to the extent of measurement of the suit 3 shop. In an appeal preferred by the defendant, the District Court has interfered and has dismissed the suit. It was held by the District Court that the plaintiff was not entitled to a decree of possesion by invoking section 17(C)(2)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the said Act). The Appellate Court held that the suit shop was located in open space having width of 10 ft between newly constructed building and the road. The District Court relied upon admission given by the plaintiff as regards location of the suit shop for coming to the conclusion that the portion where the suit shop was in existence was kept vacant by the defendant. 5. The learned counsel appearing for the petitioner submitted that as the building in which the suit shop was situated was destroyed in fire, the relationship of landlord and tenant did not come to an end. The learned counsel appearing for the petitioner submitted that provisions of section 17 of the said Act will be applicable and the act of filing the suit itself amounts to the notice to the landlord of the intention of occupy a premises in the newly constructed building. He submitted that a portion of land having width of 10 ft was kept open by the defendant while constructing a new building as per the relevant rules. He submitted that that by itself was not sufficient throw out legitimate claim of the plaintiff for possession. He, therefore, submitted that Appellate Court has committed an error by interfering with the decree passed by the trial Court. 6. On 12th and 13th January 2010, submissions of the learned counsel appearing for the petitioner were heard. None appeared for the respondents at 4 that time. When the petition was called out today for dictation of judgment, the learned counsel appearing for the respondents appeared and stated that no premises are available in the newly constructed building and therefore interference cannot be made with the impugned decree. He submitted that Appellate Court has rightly held that the plaintiff has no right in respect of newly constructed building. The learned counsel sought time to file a reply. 7. I have considered the submissions. This petition of the year 1994 arises out of a suit of the year 1981. On 12th and 13th January 2010 when the submissions of the learned counsel appearing for the petitioner were heard, the learned counsel appearing for the respondents was not present. Though on 14th January 2010 the petition was kept for judgment, by way of indulgence this Court allowed the learned counsel appearing in the respondents to make submissions. The petition is pending in this Court for last about 16 years. After the counsel for the petitioner has argued the petition, at the time of final hearing, a request made by the learned counsel appearing for the respondent for grant of time to file a reply to this petition of the year 1994 cannot be accepted and the same is rejected. 8. The learned counsel appearing for the petitioner relied upon a decision of Division Bench of this Court in the case of Krishna Laxman Yadav Vs. Narsingrao Vitthalrao Sonawane (74 Bombay Law Reporter 29). This was a case where petitioners were tenants of small tenements in a house. The house was considerably damaged by flood and was required to be pulled down by the 5 Municipal Corporation as it had become dangerous to human life. The respondent landlord commenced construction of a new building at the site of the old house and had attempted to let out rooms in the new house to the third parties. The suit was filed by the tenants under the provisions of the said Act for a declaration that their tenancies were not extinguished and they were entitled to occupy the tenements as tenants in the newly constructed building having an area equivalent to original tenements occupied by them. A mandatory injunction for delivery of possession was sought. The respondent landlord contended that the petitioners were not entitled to protection under the said Act as the premises subject matter of tenancy have been destroyed. The trial Court decreed the suit. The Appellate Court interfered with the decree and dismissed the suit. The Division Bench held that the claim of the petitioners for declaration relating to the tenements in new building would be within the meaning of phrase “premises” as defined in section 5(8) of the said Act and therefore the suit filed under section 28 of the said Act was maintainable. The Division Bench held that the tenancies of the petitioners continued to exist notwithstanding the destruction of the premises. The Division Bench held that right of occupation was incidental to tenancy which continued to exist between the parties and tenants had right of occupation in respect of new tenements in equal proportion at about the same place as in the original house. The Division Bench therefore restored the decree passed by the trial Court in favour of the petitioners therein. 9. Now coming back to the facts of the case, the finding of the Courts below 6 is that the building in which suit premises was situated caught fire and was destroyed due to fire. It is not in dispute that after the destruction of the building, the defendant landlord constructed a new building after obtaining permission of the local authority. As per the rules and regulations, while constructing new building, certain open area was required to be maintained between the newly constructed building and the road line. The Appellate Court has relied upon an admission of the plaintiff to show that the place where suit shop was located has not been constructed upon. 10. Based on documentary evidence and evidence of shop inspector, the trial Court recorded a finding that the petitioner was running a pan shop in the suit shop and had obtained licence which was valid till 1990. The finding that the plaintiff was a tenant in respect of shop premises has not been disturbed by the Appellate Court. The Appellate Court held that no case was made out under any of the provisions of the said Act and in particular under section 17of the said Act for compelling the landlord to give possession of the premises having a same area as suit shop. Thus, this Court will have to proceed on the footing that the plaintiff was a tenant in respect of shop premises admeasuring 6ft X 10ft in house No.14/52. The building in which suit shop premises was situated caught fire which led to its destruction. The defendant has constructed a new building on the same property in place where old house was situated. As per the requirements of rules of the Municipal Corporation, an open space having width of 10 ft has been maintained from the plinth of the building up to road line. In 7 view of the law laid down by the Division Bench, damage to the house due to fire does not extinguish tenancy rights of the plaintiff as the tenancy has not been determined in accordance with provisions of the said Act. The defendant landlord could construct a new building only because the old building was damaged due to fire. The tenancy rights in respect of shop premises in the old building subsist and therefore the plaintiff was entitled to claim tenancy in respect of premises having equal area on ground floor of the newly constructed building. The subsisting rights of the plaintiff as tenant cannot be defeated on the ground that the suit shop was located on an area which is required to be kept open as a marginal distance as per the rules of the Municipal Council. The tenancy of the plaintiff was as regards a shop premises in the old building in place of which a new building has been erected. 11. The suit was between a tenant and his landlord relating to possession of a premises subject matter of tenancy. The relationship between the parties continued as such event after destruction of the building in view of the law laid down by the Division Bench of this Court in the case of Krishna Yadav (supra). As the rights of the plaintiff as a tenant continue to exist, shifting of location of newly constructed building is no ground to deny relief of restoration of possession in favour of the plaintiff. The location of the building was required to be shifted in view of requirement of the local authority of maintaining a marginal distance from the road. Therefore, the decree of the trial Court has been interfered with by the District Court on irrelevant grounds. The approach of the District Court is contrary 8 to well established law. 12. As stated earlier, the learned counsel appearing for the respondents appeared after the petition was adjourned for judgment. It must be recorded here that he pointed out that third party interests have been created by the respondents in respect of all the premises in the newly constructed building. Again that is no ground to deny the decree for possession in favour of the petitioner. The tenancy rights of the petitioner subsist and hence he is entitled to possession of the premises having approximately the same area as area of the suit premises. 13. Hence, the impugned judgment and decree of the Appellate Court deserves to be quashed and set aside. 14. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and decree dated 8th March 1994 passed by the District Court is quashed and set aside and judgment and decree passed by the trial Court on 31st July 1991 is restored. (b) Rule is made absolute in above terms with no orders as to costs. (A.S.OKA,J)