IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 03.03.2011 CORAM THE HONOURABLE MR.JUSTICE R.S. RAMANATHAN S.A.No.1739 of 1997 Nagore Dargha, Nagore, represented by its Managing Trustee, Nagore-611 002. ... Appellant/Defendant Vs. M.I.Raheem represented by his Power Agent O.M.M.Ibrahim, No.4, Khadarsha Maraikayar Street, Nagapattinam. ... Respondent/Plaintiff PRAYER: Appeal filed under Section 100 of Civil Procedure Code as against the Judgement and Decree dated 0502.1996 made in A.S.No.11 of 1995 on the file of the Principal Subordinate Judge, Nagapattinam, preferred against the Judgment and Decree made in O.S.No.109 of 1992, dated 29.04.1993 on the file of the District Munsif Court, Nagapattinam. For Appellant : Mr.Srinath Sridevan For Respondent : Ms.R.T.Shyamala JUDGMENT 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. 2.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 https://hcservices.ecourts.gov.in/hcservices/ 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. 3.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. 4.At the time of admission, the following substantial questions of law were framed: "1.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? 2.The failure to join the necessary party is not fatal to the suit? 3.When the building admittedly and completely destroyed https://hcservices.ecourts.gov.in/hcservices/ by fire, can the tenancy will continue, assuming previously the tenancy right of the plaintiff remained with the defendant? 4.Unlss the right of the plaintiff is established can the plaintiff seek remedy in bare injunction?" 5.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 under Section 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 (2010) 8 SCC 1 Vinod Seth v. Devinder Bajaj and another and (2009) 5 MLJ 210 Raja Appar v. M.Gnanasambandam and others and according to him, under Section 14 of the Specific Relief Act, when a contract runs into such minute details, the same cannot be enforced. He also submitted that even under Section 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. 6.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) https://hcservices.ecourts.gov.in/hcservices/ (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. 7.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. 8.Heard the learned counsel appearing on either side. 9.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 https://hcservices.ecourts.gov.in/hcservices/ 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. 10.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. 11.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 https://hcservices.ecourts.gov.in/hcservices/ 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 Supreme Court Cases 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. 12.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. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Subordinate Judge, Nagapattinam. 2.The District Munsif Court, Nagapattinam. 3.The Section Officer, VR Section, High Court,Madras. SAI(CO) km/19.5. S.A.No.1739 of 1997 https://hcservices.ecourts.gov.in/hcservices/