DR. KUNDAN LAL Vs. SHAMSHAD AHMAD AND OTHERS

JUDGEMENT

(1.) THIS is a tenants second appeal from the decree of the Civil Judge, Meerut, allowing the landlords claim for arrears of rent at a rate higher than that allowed by the trial Court. The appellant Dr. Kundan Lal was a tenant of a shop of which Shamshad Ahmad and others were the landlords. It is common ground that a portion of the shop was demolished by the Municipal Board in September 1956 and the rest of it demolished in September 1958, with the result that between September 1956 and September 1958 the tenant was deprived of the use of a portion of the shop and after September 1958 totally deprived. It is also common ground that he did not exercise his option under S. 108(e) of Transfer of Property Act of treating the lease as void after the shop had been demolished.

(2.) THE landlords filed a suit for the ejection of the appellant and for arrears of rent and claimed the rent also for the period when the shop had been partially and later totally demolished. The appellant resisted the suit for ejectment as well as arrears of rent and contended that no rent was due from him after the shop had been completely demolished by the Municipal Board. He also claimed a proportionate reduction of the rent during the period when the shop stood half demolished. During the trial the appellant made a statement before the Court that he was no longer in possession and the landlord did not press for ejectment. As regards rent, the trial Court held that the appellant was entitled to a proportionate reduction after partial demolition and a total suspension of the rent after the complete demolition of the shop. Accordingly it reduced the claim for rent to Rs. 46-5-0. On appeal by the landlords the learned Civil Judge took the view that the appellant not having exercised his option to void the lease under S. 108(e) of the Transfer of Property Act could not claim any reduction or suspension of rent. Accordingly he allowed the appeal in part and decreed the landlords claim for rent to Rs. 255. The tenant has now come to this Court in second appeal.

(3.) IT would thus appear that in case of the destruction of the leased accommodation through no fault of the landlord, the tenant can avoid payment of rent only if he declares the lease void under S. 108(e) of the Transfer of Property Act, but if he fails to do so, the lease will subsist for the benefit of both parties and the landlord is entitled to claim rent. The tenant may have his other remedies, if any, such as damages for breach of covenant to repair. But he cannot claim that the destruction of the building has deprived him of its possession and withhold rent from the landlord. This appeal is dismissed with costs. Appeal dismissed.