NAGORE DARGHA Vs. M I RAHEEM

JUDGEMENT

(1.) 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 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 11.3.1982, requesting the appellant to allot the fourth shops and that was followed by the Advocate notice, dated 30.3.1992 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.) 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 in Vinod Seth v. Devinder Bajaj and Another (2010) 8 SCC 1 : (2010) 8 MLJ 163 and Raja Appar v. M. Gnanasambandam and Others (2009) 5 MLJ 210 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.