RAHIM BUX Vs. MOHAMMAD SHAFI

JUDGEMENT

(1.) THIS second appeal filed by the defendants is directed against a judgment and decree dated 5-1-1962 passed by the lower appellate court under which the claim of the plain tiff in respect of a shop situate in the town of Lucknow for possession and in junction has been decreed though the same had been dismissed by the trial court.

(2.) THE facts of the case as found by the courts below are that the plain tiff-respondent is a tenant of a shop which was a part of a big building owned by the defendants-appellants 1 to 3. This entire building including the shop in dispute was demolished by the land lords on 4-4-1958 in pursuance of a notice issued to them by the Municipal Board. Lucknow under Section 265(1) of the U. P. Municipalities Act. THE plain tiff-respondent filed a suit for injunction on 17-4-1958 restraining the landlords from interfering with his possession over the said premises, offering at the same time to pay rent for these premises even in the condition in which they existed then and in the alternative praying for a decree for possession. During the pendency of the suit the landlords were injected by the trial court from making any construction on this land but sub sequently this injunction was modified and the landlords were permitted to re build on this land at their own risk.

(3.) THE next point that was raised on behalf of the appellants was that after the demolition of the building the contract of tenancy was frustrated and it became impossible of performance under Section 56 of the Contract Act. This argument also does not appear correct. In the first place the doctrine of frustration applies to purely con tractual obligations and not to a con tract creating an estate or interest in land which had already accrued in favour of a party. On behalf of the ap pellants reliance was placed on a ruling Kshitish Chandra Mondal v. Shiba Rani Debi, AIR 1950 Gal 441. This ruling has no application to the facts of the present case. In that case a thatched shop which had been let out to a tenant had been destroyed by a fire and subsequently the tenant in spite of protests from the land lord reconstructed that shop. THE land lord after terminating the tenancy by a notice filed a suit for possession which was resisted by the tenant. THE suit of the landlord was decreed on other grounds but an additional ground on which the tenant was held liable to eject ment was also given that after the des truction of the premises, the contract of tenancy became void by the doctrine of frustration. On behalf of the respon dent reliance was placed on a ruling, Court of Wards Dada Siba Estate v. Raja Dharan Dev Chand, AIR 1961 Punj. 143 which is more to the point. In this case it was held that Section 56 of the Con tract Act embodies a positive rule of law relating to doctrine of frustration and this section must be treated as ex haustive so far as it goes and the same is applicable only to purely contractual obligations and not to a contract creat ing an estate in land which had already accrued in favour of a party. With res pect, I find myself in agreement with the principle laid down in this ruling. So this doctrine of frustration cannot apply to a lease of the present nature. Moreover, in this case even if this doc trine had been applicable, the facts do not show that the contract of lease had become impossible of performance. THE landlord, who demolished the premises in compliance with a notice issued by the Municipal Board under Section 263 1971 AIL/2 I G-12 (1) of the Municipalities Act, could re build the premises in the same form in which they existed before, and the rights of the lessor and lessee would then be available with respect to the new pre mises. So this second point raised on behalf of the appellants has also no force.